Recent Articles About Frederick Hertz

HERO Magazine, February-March, 2000

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Canada 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 things up?

There aren't easy answers, but it's worth taking a closer look at the options.

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.


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 effort.,

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 and prejudiced."


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 or so.

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 law.

"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 marriage.


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 court decision.

"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 chances.

"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 Wisconsin.

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 the


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 the debate."


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, or the site for the Lambda Legal Defense and Education Fund at

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