The Battle Over Gay Marriage

• Share

(3 of 6)

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.