Magazine, February-March, 2000
has done it. France has done it. And in various ways, countries like
Belgium, Sweden and South Africa have done it.
What about the United States?
"It" here means opening some or all of the rights and benefits of marriage
to gay couples. In May 1999, the Supreme Court of Canada struck down
a heterosexual definition of the word "spouse," which required the province
of Ontario to amend 67 statutes so that gay couples would have the same
rights and responsibilities as common·law married couples. Further abroad,
the French Constitutional Council approved a law in November giving
unmarried couples the same legal status as married couples. And in December,
South Africa's top court ruled that the foreign partners of gay South
Africans must be granted the same status as the foreign spouses of the
country's heterosexual citizens.
Even the most far·reaching of these decisions still do not offer the
exact equivalent of marriage. In France, for example, gay couples have
to be together for at least three years to qualify, unlike heterosexual
couples who can decide to get married on a whim.
Still, the advances are significant.
"Canada and France are very promising," says Marvin Peguese, a staff
attorney at the Lambda Legal Defense and Education Fund. "What they
are saying is that this comprehensive network of rights and benefits
that married couples have should be available to same·sex couples."
So what's America's problem? Why have other countries gone so much further
than we have here in the supposed land of the free? And how can we speed
There aren't easy answers, but it's worth taking a closer look at the
Efforts by American employers and state and local governments to recognize
domestic partners have been important. So have challenges to marriage
laws in states like Vermont, where in December the state supreme court
ruled that the same rights and privileges offered to heterosexual couples
must be made available to gay couples as well. But as important as these
developments are, we may need to think more creatively about ways to
win the right to marry. What about more direct challenges to the heterosexual
definition of marriage? What about asking more insistent questions about
the tax·exempt status of religious denominations which contribute to
anti·marriage efforts? What about asking why an essentially religious
definition of marriage has been enshrined in the laws of a country which
is supposed to separate church and state?
None of these changes will come easily, but they represent new possibilities
in the fight to win the rights and benefits of marriage. They also offer
opportunities for getting involved, and in some cases, the efforts are
already under way.
CAN WE SUE?
Gay couples have little if any legal standing in the U.S., and an essentially
religious definition of marriage is hard·wired into our laws despite
our supposed separation of church and state. In a situation this outrageous,
you might think there are plenty of opportunities to sue. After all,
nobody argues that a religious community should be prevented from defining
marriage among its own members any way it sees fit, but that's quite
different from accepting that a religious definition of marriage should
get exclusive recognition in the law of the land. Isn't this a clear
breach of the line between church and state? Who gave anyone the right
in define marriage as between men and women only in the first place?
Aren't existing marriage laws a form of religious discrimination, and
isn't that something we could challenge in court?
These are critical questions, and they may eventually win out. But for
now the situation is a little more complicated, and legal experts point
out that courts are generally not ready yet to see the opposite·sex·only
definition of marriage as a form of religious discrimination.
"While it could be argued," says Mark Strasser, professor of law at
Capital University in Columbus, Ohio, and author of The Challenge of
Same·Sex Marriages, "I suspect that this would not be a successful tactic.
The question will be whether there are any secular state interests for
limiting the right to marry."
In other words, just because state laws overlap exactly with certain
religious beliefs about marriage doesn't mean that courts will identify
this as religious discrimination. For example, Mormon challenges to
laws against polygamy have tried to make similar arguments·that other
faiths' views of marriage are unfairly overruling their beliefs but
have consistently failed.
Frederick Hertz, an attorney in Oakland, Calif., and co·author of A
Legal Guide for Lesbian and Gay Couples, sees the same difficulty.
"I think the religious domination of social practices is fundamentally
wrong, but the courts have consistently held, all the way up to the
U.S. Supreme Court, that moral beliefs are valid, even if they're identical
to those held by religious groups."
Nonetheless, there are possibilities. Even challenges that fail may
gradually help to shift the attitudes of judges and the public toward
recognizing our right to be included in the law. A long·awaited decision
by the Supreme Court of Hawaii, for example, threw out a challenge to
the state's marriage ban, but the case played a significant role in
raising the question of why gay couples don't have the right to marry.
Another possibility was demonstrated in October 1999 by the San Francisco
city board of supervisors, which called for an investigation into the
role of the Mormon Church in the Knight Initiative, an antigay·marriage
referendum scheduled for a vote in California in March. A church's tax·exempt
status prohibits direct involvement in politics, but several churches
appear to have crossed this line by giving large donations to the Knight
Publicity about this kind of misconduct·and hypocrisy··can also be helpful.
Without any apparent sense of the irony, Utah Senator and presidential
candidate Orrin Hatch called the San Francisco supervisors' vote "bigoted
When asked what he would tell a gay couple who came to him for
advice about suing on the basis of an argument like religious discrimination,
Hertz says this is a tough·but worthwhile·fight.
"I would tell you that you will lose, but if you're willing to fight
it, it will be an important fight, because you'll be raising important
issues. The act of challenging these laws brings them to the forefront
in a way that stimulates debate."
Your ability to get anywhere with these arguments depends a lot on the
laws of the state that you live in, and it's hard to give general "how
to sue your state" advice. In many cases, says Peguese at the Lambda
Legal Defense and Education Fund, "we can't even get into court because
the governing laws define spouse to mean the opposite·sex partner of
the person affected by the statute, and that's it. There's just no way
around that." But Hertz adds that there are encouraging precedents for
the gradual erosion of these laws.
One is the way that divorce laws have changed over the last century
Largely because of religious influence, divorce remained illegal or
extremely difficult to get throughout most of the U.S. well into the
20th century. But today divorce is legal throughout the country, despite
the fact that many religious denominations still condemn it. Legislatures,
courts and most citizens have come to recognize that while people are
entitled to religious beliefs that condemn divorce, these beliefs don't
have a place in the law. "The idea, that you couldn't get divorced because
the Catholic Church was against it is looked at as some bizarre artifact
of ancient history;" says Hertz. He adds that he thinks we are "in the
middle if not in the latter half of the campaign to yank marriage out
of the hands of the religious bosses" too.
A similar precedent is the legalization of interracial marriage, or
the fact that many people who privately disapprove of mixed marriages
between members of different religions·between Jews and Christians,
for example·would never dream of having their disapproval written into
"My mother would be against a mixed marriage," says Hertz, "but it would
never occur to her to seek to make it illegal." He said he looks forward
to the day that people wouldn't think of having a bias against gay marriages
represented in the law either.
While that sort of general tolerance is becoming more widespread in
society, some legal avenues look particularly promising.
.One is that existing marriage laws discriminate on the basis of gender·why
can a man marry someone of one gender but not the other?.
The other is that while marriage may be legally limited to heterosexuals,
giving certain rights and benefits to married couples but not other
couples is discrimination. Ironically, the Canadian ruling in 1999 used
essentially this argument in a case to settle a breakup. A lesbian sued
her former partner for support after their 12·year relationship ended,
and the court found that Ontario's definition of "spouse" unfairly denied
this woman the rights she would have if she had been in a heterosexual
PROCEEDING WITH CAUTION
Big legal victories like those in Canada and Vermont are encouraging,
but experts warn against expecting lawsuits to solve everything. One
risk is that giving a conservative U.S. Supreme Court the opportunity
to affirm a heterosexual definition of marriage could be a devastating
setback, Another is the possibility of a backlash against a farreaching
"When judges do things that are radical," says Hertz, "it often creates
political conflicts that sometimes harm the cause." In fact, the mere
possibility that one state supreme court or another might legalize gay
marriage was enough to inspire the passage of the so·called Defense
of Marriage Act (DOMA) in 1996, which allows the federal government
and individual states to deny recognition to same·sex marriages. It
has also inspired "mini DOMAs" in more than half of U.S. states so far.
All this legislation may eventually be found unconstitutional, but it's
still a serious roadblock to gay marriage, and the December decision
in Vermont is already invigorating anti·gay forces. Radio personality
Dr. Laura, for example, quickly urged listeners to contact Vermont officials
to express their disapproval of the marriage decision, and to get involved
in other anti·gay efforts.
Hertz also says that legal efforts need to be matched with efforts to
bring about social change "on the ground." He stresses that the most
important thing may not be the legal victories, but the chance to change
minds both in and outside the courtroom. He makes a comparison to the
struggle for African·American civil rights.
"It wasn't just that people were suing. They were having sit·ins. They
were having confrontations. If this is seen as one lawyer and one couple
by themselves, it's much less likely to be successful at changing minds."
A couple that is part of a larger gay·equality effort may have better
"If you are part of a gay community or religious community that is working
at the local level so that your legal fight has a grounding in public
debate in churches and schools, town halls, etc., then I think you're
much more likely to be successful."
Whether it's fair or not, Hertz also suggests that couples who go through
a religious marriage ceremony may be viewed more sympathetically by
the courts. Then it's not just a case of the rights that two people
deserve, but the rights of a whole religious denomination. "If your
religion allows same·sex marriages and other people's prohibit it, it
is a kind of religious discrimination for the government to endorse
one and not the other."
As an example, he points out that a similar argument has worked in a
non·marriage context when Jews have won the right to not be required
to work on Saturday for the Sabbath (instead of the traditional Christian
observance on Sunday), or to be able to wear skull caps to work. The
principle at stake is that diverse forms of religious practice need
to be accommodated by the law. "It's a very good argument."
Yet another strategy that can help change the way people think about
the issue is to emphasize what gay couples have to offer. Some believe
that gay marriage is about asking society to protect relationships that
have "nothing to contribute." The fact is that many heterosexual couples
could learn from the example of gay couples who have stayed together
without much outside support, and even in the face of open hostility.
Not to mention gay couples who are raising children together. Children
deserve to have their parents' relationship recognized by law. Denying
it only makes it more difficult for these children.
A successful court case is one way to get results, but judicial decisions
may lack popular support. A more grassroots approach is to get state
legislatures to simply legalize gay marriage or its equivalent by another
name, and an innovative attempt at that is currently being tried in
Introduced to the state legislature in October, the Domestic Registry
Bill (Assembly Bill 608) would start by defining domestic partnership.
Many states and municipalities have already done this, but the Wisconsin
bill would do something that no one else has. After creating a domestic·partnership
registry, it would simply apply all the state laws that govern marriage
to registered domestic partners. Essentially, it's marriage by another
name. The bill has so far attracted ten sponsors.
State representative Mark Pocan, one of the bill's authors, says the
bill "creates a civil or legal recognition of a relationship which is
same as marriage, but it takes out the religious overtones. That seems
to be the biggest criticism we heard through past debates." Pocan says
that if the word "marriage" is the only thing standing in the way of
getting equal treatment for gay (and unmarried straight) couples, he'll
"call it just about anything."
Supporters say they know that passing the bill may take time, but they
draw encouragement from the fact that Wisconsin passed the country's
first gay·rights law in 1982, and sent the first open lesbian (Rep.
Tammy Baldwin) to Congress in 1998. And while the Wisconsin legislation
is pending, similar bills could be introduced in other states.
Pocan says the idea came from a 1997 battle over an anti·same·sex marriage
bill. That bill was defeated, but Pocan said it helped him realize the
need to go beyond simply reacting to anti·marriage bills and to put
forward something proactive that people could rally behind. "The journey's
got to start somewhere," he aid, "and I think it never hurts to change
Any or all of these court challenges and legislative efforts can make
positive contributions, but not just for what they accomplish in themselves.
By creating a patchwork of differing standards throughout the country
that need to be reconciled in one way or another, they lend themselves
to further steps toward the recognition of gay relationships nationwide.
"The good side of these jerry·rigged systems is that they create these
ridiculous anomalies which can be used in court to get a broader range
of rights," says Hertz.
One opening with domestic·partnership laws that don't give all the rights
and privileges of marriage··or which impose special conditions, like
a minimum period that a couple has to live together in order to qualify·is
that they can be contrasted with marriage. People can start to come
forward, suggests Hertz, and make arguments like "the legislature improperly
tried to give me half a loaf."
Hertz says that current efforts may also bring about possibilities that
invite comparisons to the "Reno divorce." When Nevada reformed its divorce
laws in the early 20th century, Reno became famous as the place to get
unhitched. The question then became whether other states would recognize
Nevada divorces, which they all eventually did.
"Once you had one state allowing it, the absurdity of having a ban in
other states began to motivate a loosening of the rules," said Hertz.
That's an important precedent, because the same thing could happen with
gay marriage and other forms of recognition for gay relationships.
This won't be easy, but the current ban on marriage for gay couples
is unsupportable. Ongoing legislative work, as well as careful but creative
legal challenges and continuing efforts to simply change people's minds,
can bring us closer to the day when everybody sees it.
For more information about marriage·related legal developments, see
Hertz' web site at www.samesexlaw.com,
or the site for the Lambda Legal Defense and Education Fund at www.lambdalegal.org.