|
 |
|
As we approach November 2, it would seem that the marriage-equality movement has quieted down in the interest of voting George W. Bush out of office. Same-sex marriage attracts a fraction of the coverage it did earlier this year, when Massachusetts became the first state to legalize same-sex marriage and eight cities, following the lead of San Francisco Mayor Gavin Newsom, issued marriage licenses to same-sex couples. But since August 12 — when the California Supreme Court decided Newsom had exceeded his authority and subsequently voided all 3,995 marriages — we've heard a lot about ballot initiatives to ban same-sex marriage (in eleven states; four in presidential battlegrounds) and nearly nothing about renegade mayors and city clerks. Has the momentum slowed to a halt? As the debate over same-sex marriage intensifies, has a backlash against gays and lesbians begun?
As it turns out, the movement isn't idle; it's on the verge of a tug-of-war. Lawsuits to advance marriage equality are competing against ballot initiatives that could drag the movement back to square one. Everything is on hold until after the election, but not necessarily because of the election.
Nationwide, at least seven court decisions are pending on the constitutionality of state marriage laws and the validity of same-sex marriage licenses. Lawsuits have been filed in California, Connecticut, Maryland and Washington, and a case is awaiting appeal consideration in Indiana. New Jersey's case is currently in the State Appeals Court. Oregon’s attorney general expects the Supreme Court to grant full marriage rights to the 3,000 same-sex couples who wed in Portland between March 3 and April 20; although Oregonians will vote November 2 on an amendment to ban same-sex marriages, Oregon is one of two states where the measure stands a chance of being defeated (Ohio is the other).
Of all the states currently embroiled in lawsuits, California is most likely to become the next state to legalize same-sex marriage. The state's reputation as a civil-rights trailblazer began in 1948, when the state Supreme Court became the first to overturn anti-miscegenation laws, twenty years before the U.S. Supreme Court. And it is currently home to some progressive legislation: next January in California, comprehensive domestic-partnership laws (AB 205 and AB 2208) will require employers and insurance companies to treat domestic partners as spouses.
Newsom, a thirty-six-year-old, married, heterosexual Roman Catholic, is not at the forefront in this next round, but marriage-equality activists credit him with jump-starting efforts by "coming out and telling the truth, and putting a face on it," says Robin Tyler, national co-chair of dontamend.com.
"What Mr. Newsom did is temporarily in abeyance, but the electrifying impact he had on spurring the equal marriage rights struggle right around the country cannot be denied," says Andy Thayer, National Action Coordinator for dontamend.com. “Newsom is a far better representative of the gay community when he did the marriage licenses than Rep. Barney Frank (D-Massachusetts), who consistently puts the power needs of the Democratic Party above gay people.”
In lieu of San Francisco's City Hall, the next arena to watch is California's assembly floor, where legislators like Mark Leno (D-San Francisco) and
"The Democrats want to run and hide from this issue and pretend they're being liberal," says one activist.
|
Fabian Nunez (D-Los Angeles) plan to present The Marriage License Non-Discrimination Act on December 6. If approved, the bill would return California's marriage laws to their pre-1977, gender-neutral language. It would also expand the state’s domestic partner bill, allowing same-sex couples to receive marriage licenses, file joint tax returns and travel across state lines without jeopardizing their marriage rights. Governor Arnold Schwarzenegger is likely to approve it, as he said he would last spring, if the voters wanted it. (He signed AB 2208 in September, upon his return from the Republican National Convention.) Attorney General Bill Lockyer — who personally believes in marriage equality and has defended domestic partnership bills against groups like Campaign for California Families — will soon fight to uphold Proposition 22, California's Defense of Marriage Act. That case, which will be heard by a Superior Court judge, will determine the constitutionality of the state law regarding gays and marriage.
Shannon Minter, the legal director of the National Center for Lesbian Rights, believes a decision could be reached from the trial court by the end of the year. "Then it will go up on appeal, and probably straight to the California Supreme Court," he says. Minter, among others, considers this promising. "They're probably the most progressive court in the country on family law issues right now, and that's primarily what the marriage issue is about. I think we'll get a positive ruling."
But a positive ruling — or even legislation signed into law — doesn't mean civil rights get enacted. "If there's not a movement to support those decisions, they can remain dead letters," says Thayer. "Did the Brown v. Board of Education desegregate America? No. To the extent that we achieved any desegregation was thanks to the civil-rights movement, the men and women who put their lives on the line to make that happen."
And the court cases to win marriage equality are only half the battle. "We've had victories like Roe v. Wade. But if we sit on our victories, we see forces rally around to try to undermine it," says Evan Wolfson, the executive director of Freedom to Marry, a gay and non-gay partnership. State amendments are popping up all over the nation — four states have already voted to pass them (Louisiana voted for the amendment, but the district judge threw it out as unconstitutional; it's currently under appeal). November 2 brings eleven more.
During this cutthroat election season, the GOP has kept same-sex marriage on the front burner because it's such a divisive issue — and one advantageous to Republicans, because a majority of Americans are against it. According to The Cincinnati Enquirer, Ohio is one of the only states where the Republican governor, Republican senators and the attorney general have all spoken out against a constitutional amendment, arguing that it could have negative consequences for anyone living together, no matter what their relationship. Many Republicans are willing to wage any battle if it means forcing the hand of Democrats, who can neither afford to alienate gays and lesbians, nor moderate and swing voters.
This means John Kerry has had to compromise in an effort to appease all of his potential supporters. He says he has always believed that marriage is between a man and a woman, but he is against a federal constitutional amendment. (Kerry would support an amendment to the state constitution of Massachusetts banning same-sex marriage, only if it "provides for partnership and civil unions . . . and it would advance the goal of equal protection.") Both he and John Edwards would prefer to leave the matter to the states, which some consider a cop-out. "That's what George Wallace said, that it was up to the States if they want segregation," says Tyler. "This is marriage segregation. What they're doing by leaving it up to the States, whether it's Kerry-Edwards or Bush-Cheney, is crying 'Segregation Now, Segregation Forever.'"
As it stands now, when Massachusetts' highest court granted gays the right to marry, the state legislature narrowly approved an amendment that would ban gay marriages while legalizing civil unions. If adopted, it would go on the Massachusetts ballot in 2006, and the pursuit for marriage equality could experience a backslide.
"The Democrats want to run and hide from this issue, and pretend they're being liberal because they're against the federal constitutional
Marriage-equality advocates are prepared for a long battle, no matter who gets elected.
|
amendments," says Tyler. "The Democrats are being hypocritical if they support state amendments. I want to see Kerry get elected to the White House, because I don't want Bush to get in. But ten or twenty years from now, we'll look back at Kerry and Edwards and Cheney and say, 'How could they have had these positions?' As Martin Luther King said, 'Justice delayed is justice denied.'"
If the country re-elects Bush — who lost the endorsement of his gay constituents, the Log Cabin Republicans, on this very issue — he and his administration will likely continue to push for a federal amendment. All LGBT rights could potentially be threatened under his administration. Bush bragged during his last presidential campaign that Antonin Scalia and Clarence Thomas were his favorite Supreme Court justices, and during his term, he has nominated lower court judges that swing just as far to the right.
The election is tight in every state, and in the nation at large. As we get closer to November 2, it's proving even harder to predict the outcome. But advocates for marriage equality are prepared for a long battle, no matter who gets elected. "What Newsom did changed the entire country, and there's no going back from here," says Minter. "Soon, within the next two to three years, we will have several states in which same-sex couples can marry, and that's going to make a huge difference. People will get used to the idea and see that nothing bad happens. In fact, it just helps families. It is going to be a huge turning point."
The prospect of working one state at a time may seem daunting, but according to Wolfson, it is in line with the classic pattern of U.S. history for civil rights change. "Some states move toward equality faster, while other resist or even regress, piling on other layers of discrimination," he says. "States have dialogues amongst themselves, people wrestle with it, and hearts and minds open over time. Eventually comes a national resolution, but usually that comes after many years of patchwork. That's what we've begun." n°
| ABOUT THE AUTHOR: |
 |
Kera Bolonik's essays, features and book reviews have appeared in New York, The New York Times, Salon, The Nation, The Advocate and Bookforum, among other publications. She lives in Brooklyn, New York. |
©2004 Kera Bolonik & hooksexup.com
|
|
|
|
|
