The Battle Over Gay Marriage

By John Cloud

Our marriages often provoke us to throw the china and utter the unforgivables. The context is usually personal, not political, but either way, passions run high. In May, barring some unforeseen procedural hindrance, gay couples will wed for the first time ever in the U.S. They will have that opportunity by order of the Massachusetts Supreme Judicial Court, which ruled last week that it is unconstitutional to deny them marriage licenses. Gays and lesbians across the country celebrated. Hundreds of gay people have already called or e-mailed town clerk Doug Johnstone in Provincetown, Mass., to ask when they can marry. One of the licenses Johnstone's office will issue will be his own. After 25 years together, he and his partner will finally have the chance to say their vows before the commonwealth.

Many other Americans are worried that even though a freedom has been granted, an institution has been threatened. "If we have homosexual marriage mainstream, I can't even describe to you what our culture will be like," warns Sandy Rios, president of Concerned Women for America, one of the leading anti-gay-marriage organizations. Many conservatives object that such a monumental social change was sanctioned by such a small group--four of seven judges on the Massachusetts court. "We're hearing from people throughout the country," says a hoarse Glenn Stanton, spokesman for Focus on the Family, a conservative group in Colorado Springs, Colo. "They don't know which to be more outraged at--the death of marriage or the death of democracy."

Marriage may or may not be dead, but democracy is doing fine. The court decision has intensified efforts to pass a U.S. constitutional amendment banning gay marriage. One version of the amendment already has more than 100 cosponsors in Congress. (Two-thirds of both houses will be required to pass the amendment, which will then have to be ratified by at least three-quarters--38--of the states.) Conservative activists will make sure that voters hear a lot about gay marriage between now and November since the likely Democratic nominee for President, Senator John Kerry, comes from Massachusetts. By unhappy coincidence, the Democrats will also hold their convention in Boston this summer. "It could be like Chicago 1968," says gay-marriage foe Ray Flynn, a former Democratic mayor of Boston and ambassador to the Vatican, who is now president of Your Catholic Voice. "The country will see the party as taken over by the radical left."

Last Thursday, at various campaign stops, Kerry was forced to say--over and over, to the point of understandable exasperation--that he opposes gay marriage and disagrees with his state's court ruling. But he also favors civil unions for gay couples and would vote against a U.S. constitutional amendment. You can find a consistent line here: Kerry thinks the matter should be left to states. But in a debate as raw as the one over same-sex unions, President Bush's simple position--marriage should be between a man and a woman--will be easier to explain, not least because a clear majority of Americans also hold it. In a TIME/CNN poll conducted last week, 62% of respondents said they oppose the legalization of same-sex marriage; less than a third favor it.

But the President remembers the lessons of 1992, when moderate voters punished his father for a G.O.P. convention loaded with extremist declamations on the culture wars. Bush the son is careful to avoid coarse language about gays and lesbians. As Air Force One flew to South Carolina last week, the President made clear his opposition to gay marriage but added, "I'm not against anybody," according to Jim DeMint, a Republican Congressman who was aboard. "If some people want to have a contract, that's O.K., but marriage is the foundation of society."

Though it was an offhand comment, the idea that Bush might favor some kind of "contract" for gay couples--presumably a type of state recognition--is astonishing when you look back at the brief history of the gay-marriage debate. As recently as 1993, when the Hawaii Supreme Court issued the first appellate-court ruling in favor of gay marriage (a ruling that never took effect because Hawaiians voted to amend their constitution), even domestic partnerships were still considered radical. Only a few liberal municipalities offered them--Berkeley and West Hollywood in California, for example--and they didn't cover much. You could get a certificate suitable for framing and the assurance that a hospital within city limits would let you visit a sick partner. That was about it. FORTUNE 500 companies were only beginning to allow partners of gay and lesbian employees to buy into health insurance plans. Most big cities didn't offer their employees such arrangements; in 1993 plans to extend health benefits to same-sex partners of city employees in Atlanta and Seattle caused great public consternation.

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.)

After the Hawaii ruling, Lambda reversed course. One of its top attorneys, Evan Wolfson, began traveling the country to speak on gay marriage. Both gay and straight audiences needed convincing that it wasn't a distant fantasy. "I spoke in churches, gay organizations, the Federalist Society. I spoke in almost every state in the country. This went on for years. And the real thing that started to make the big difference is when we started to believe it could happen," says Wolfson, 47, who now runs his own project called Freedom to Marry. "And once that happened--after Hawaii, after this was being debated in California and Vermont--we saw a surge of people who had not been particularly active in the movement now come into it." High-profile losses in California and other states were eventually followed by a halfway win in Vermont and then, of course, a full victory last week in Massachusetts.

As Wolfson was trying to promote same-sex marriage, Matt Daniels was becoming convinced that it would damage the institution of the family. Daniels, 40, runs the Alliance for Marriage, which wrote the Federal Marriage Amendment now before Congress. Daniels comes to the issues of marriage and family breakdown from a very personal place. His father walked out when he was 2, leaving his mom to work as a secretary. One night when Daniels was in third grade, she was assaulted on her way home. "She ends up with a broken back, disabled, on welfare, depressed," says Daniels, trailing off. "So I was basically raised on welfare."

Daniels got a scholarship to Dartmouth, but after college he had to return home to care for his mother, who was dying of congestive heart failure. (She passed away in 1990.) During that period, he began volunteering in homeless shelters, where he says he saw the consequences of family breakdown, including welfare dependency and youth crime. "And it's about that time that we began to see the court activity in Vermont," he recalls. "Already we had seen it in Hawaii." Daniels was deeply troubled by the prospect of gay marriage, he says, "because of the unique combination of gifts that the two genders bring to the raising of children. The family--defined as built on the union of male and female--from my perspective is the foundation of society. The United States could survive without ideologies on left and right, without the Democratic Party or the Republican Party, but if you look at social-science data, we cannot thrive if we continue to see the disintegration of the unit of the family."

By the late '90s, Daniels was working for the Boston-based Massachusetts Family Institute, an independent conservative group loosely affiliated with Focus on the Family. In Boston, he became friendly with the Rev. Dr. Ray Hammond, a physician turned pastor who had won national plaudits for helping inner-city youths in Boston. Eventually Daniels--with the help of Hammond and several other minority ministers--founded the Alliance for Marriage.

Although the alliance has a modest budget of $900,000 a year, compared with $120 million for Focus on the Family, it has influence beyond its means. Just as Wolfson was promoting gay marriage when gays wouldn't listen, Daniels was suggesting a constitutional amendment to ban gay marriage when conservatives wouldn't listen. When the alliance held a press conference to announce the idea in the summer of 2001, Daniels says, "there wasn't any debate going on about a marriage amendment." But by the following May, the alliance had lined up a Congressman--a Democrat, actually--to introduce the Federal Marriage Amendment. Today it has 109 co-sponsors in the House and five in the Senate.

The amendment would limit marriage to opposite-sex couples, but it would not outlaw civil unions, which Daniels believes should be available to states. His moderation on that point is considered apostasy on the right, and Daniels has had to battle more powerful groups that want the amendment to go further, explicitly banning not only gay marriages but any state's recognition of gay relationships. For the past few months, about 20 serious movement conservatives--stalwarts like former presidential candidate Gary Bauer, Louis Sheldon of the Traditional Values Coalition and Don Wildmon of the American Family Association--have strategized on how to toughen the language. Daniels, who says one conservative leader told him his multicultural alliance "looks like the bar scene from Star Wars," has not been invited.

Calling themselves the Arlington group because they first met last summer in that Washington suburb, these conservatives feel that "ideally," as Bauer said last week, "we would like an amendment that would make it unconstitutional to have gay marriage or fake marriage, the civil unions." Realistically, however, they have concluded that such a sweeping amendment probably won't pass. It's very early in the process, but the White House seems to be leaning toward the more flexible language.

The proposed amendment got a big push last week, and it is likely to get another in May, when pictures of lesbians kissing their brides will be broadcast round the world. (One caveat: there is still a slim chance that gay-marriage opponents in the Bay State--including G.O.P. Governor Mitt Romney--will find a way to stop the marriages before May. But the state's highest court is not likely to approve any delays, so stopping gay weddings would probably mean outright defiance of the court. Most observers don't think Romney would risk his future on an Orval Faubus ploy.)

By May the Bush machine will be in high gear. You can expect that if Kerry is the nominee, plenty of television commercials accusing Kerry of being a Massachusetts liberal will air during breaks from newscasts about the latest gay wedding. Another problem for Kerry may lie across the continent in California, a state any Democrat must carry to win the White House. This week assemblyman Mark Leno is expected to introduce a bill in the California legislature that would legalize gay marriage. Gay activists plan an all-out battle. "Our goal is to be the first state in the nation to [legalize gay marriage] through the democratic process as opposed to the courts," says Toni Broaddus of Equality California, the state's leading gay-advocacy group. The last thing the Democrats want in California is a conservative base energized by a bloody gay-marriage fight over the summer.

But it gets worse. Because of Massachusetts, other states will be considering constitutional amendments to ban same-sex marriage. In fact, some 20 states have already introduced (or are expected to introduce) such amendments, according to the Human Rights Campaign. "I fear all this will create a backlash so much more powerful than our community is prepared to handle," says Matt Foreman of the National Gay and Lesbian Task Force.

For now, Kerry's advisers say they aren't worried their candidate will be mauled in the showdown. "The court has decided one thing, and Kerry has said he disagrees," says a senior Kerry adviser. Every time the Republicans bring up the issue, they give Kerry "the opportunity to highlight that his view isn't the traditional Massachusetts-liberal view." Kerry himself snapped last week, "I have the same position that Vice President Dick Cheney has. [The Republicans] ought to talk to Dick Cheney ... before they start playing games with this. And we'll find out just how political and how craven they are." Kerry was referring to Cheney's statement during the 2000 campaign that he believes the issue of rights for gay couples "is regulated by the states. I think different states are likely to come to different conclusions, and that's appropriate." Cheney's daughter is a lesbian, and many gays hoped he would openly support same-sex marriage. But last month Cheney told the Denver Post that he will support whatever position the President takes, even if that means backing a ban on gay marriages.

The gay-marriage debate, because it touches the emotional and social fabric that makes up family, can be brutal. Last March in Nebraska, the attorney general issued an opinion saying that under the state's constitution, gay people do not have the right to make burial arrangements for their partners. The generally civil members of the Massachusetts court were barely civil to one another by the time they issued their second opinion. In her ruling, Chief Justice Margaret Marshall said Justice Sosman, who had dissented, "so clearly misses the point that further discussion appears to be useless." It is a small sign that tempers are likely to flare when the national debate begins.

--With reporting by Perry Bacon Jr., Matthew Cooper and Viveca Novak/Washington, Anne Berryman/Athens, Esther Chapman/Omaha, Rita Healy/Denver, Matt Kelly/Provincetown, Nathan Thornburgh/Boston, Sonja Steptoe/Los Angeles and Douglas Waller with Kerry

With reporting by Perry Bacon Jr., Matthew Cooper and Viveca Novak/Washington, Anne Berryman/Athens, Esther Chapman/Omaha, Rita Healy/Denver, Matt Kelly/Provincetown, Nathan Thornburgh/Boston, Sonja Steptoe/Los Angeles and Douglas Waller with Kerry