The Battle Over Gay Marriage

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Today municipalities routinely invite partners of gay employees to join health plans. Kansas City, Kans., became the latest to do so just last week. The website of the Human Rights Campaign, the nation's largest gay political group, now lists 7,414 U.S. employers that offer domestic-partner benefits. And New Jersey, Hawaii, California and Vermont have established statewide registries for gay couples. Until last week, Vermont's law was the most famous (thanks to former Governor Howard Dean) as well as the most sweeping. That state's civil unions go well beyond the limited package of benefits usually associated with domestic partnerships and offer everything except the word marriage — inheritance rights, joint state-tax filings, joint adoptions, the whole show. But not the word marriage.

Which is where things stood until last week. The Massachusetts decision laid out the case for why, in the majority's opinion, everything but marriage is not enough. The state senate had asked the court if it could establish civil unions to meet the constitutional requirement of equality for gay couples set forth in an earlier ruling. "The answer," the court replied, "is 'No.'" Why not? "Because the proposed law [establishing civil unions] by its express terms forbids same-sex couples entry into civil marriage [and therefore] continues to relegate same-sex couples to a different status ... The history of our nation has demonstrated that separate is seldom, if ever, equal."

But in her dissent, Justice Martha Sosman pointed out that even if Massachusetts allowed gay marriages, those marriages would still not be fully equal since "differences in Federal law and the law of other States will frustrate the goal of complete equality." What she meant is that even after Zach and Brad marry in Massachusetts, the couple will not be married in, say, Alaska, which has a constitutional amendment prohibiting same-sex marriages. (In all, 39 states have laws or amendments restricting marriage to straight couples.) What's more, the couple will not be married in the eyes of the Federal Government, which enacted a law in 1996--supporters called it the Defense of Marriage Act — defining marriage as "only a legal union between one man and one woman." Zach will not be able to take advantage of the Family and Medical Leave Act to care for Brad when he is ill, nor will he be eligible for the surviving-spouse benefit offered by the Social Security Administration if Brad dies. In fact, Zach and Brad will not enjoy any of the 1,049 benefits and protections afforded to married couples by federal statutes.

Sosman wrote that "once the euphoria of [the case] subsides, the reality of the still less than truly equal status of same-sex couples will emerge." With all the practical differences between straight and gay unions, she argued, "it is eminently reasonable to give a different name to the legal status being conferred on same-sex couples by the proposed bill." But the majority dismissed that reasoning. It countered that federal and other states' laws were "irrelevant ... Courts define what is constitutionally permissible, and the Massachusetts Constitution does not permit this type of labeling."

For gay-rights lawyers, the language was gratifying. They have tried to persuade Americans for years that they were not arguing for a "special right" called gay marriage but rather for simple equality. Exclusion from marriage was discrimination, they argued — even if it was a cushy, Vermont-syrup discrimination. For those attorneys, civil unions were, as the court itself said, a "type of labeling." The Massachusetts lawyers wanted no half measures: "It was always about marriage," says lead attorney Mary Bonauto of Gay and Lesbian Advocates and Defenders.

But it wasn't always about marriage. As recently as the early '90s, bringing marriage cases was considered foolish in gay legal circles. At least six court cases arguing that gays should have the right to marry were filed in the 1970s, and all had promptly failed. None were filed in the 1980s, and by the early 1990s only a few gay intellectuals, like Andrew Sullivan, then editor of the New Republic, a center-left magazine of policy and politics based in Washington, were arguing for marriage. In the rest of the gay community, there was division, uncertainty, even among the attorneys at Lambda Legal, the leading gay legal group. Gay radicals felt that marriage was a patriarchal, retro institution that gays should avoid altogether. Others felt that pressing for gay marriage was a strategic mistake--"too much, too soon," in the words of a gay lawyer familiar with the battles.

It was in this environment that Lambda declined to represent three couples who in 1991 sued Hawaii for the right to marry. By 1993 that case had quietly made its way to the state supreme court, and in May of that year the court startled the gay-rights movement — and drew international attention — when it ruled that barring gay people from getting married amounted to discrimination based on sex. (The court sent the case back to trial, but by 1998 the state constitutional amendment had passed, and no gay couples ever wed in the Aloha State.)