Love and War

Gay Americans Won a Court Victory. Now Comes the Fight to Wed.

Speeding toward the Canadian border and the hope of a real wedding, the two men picked up a cell phone and sought a little advice. The day before, June 10, the Ontario Court of Appeals had extended full marriage rights to same-sex couples. Just outside Buffalo, this American pair dialed David Buckel, senior staff attorney with Lambda Legal and coordinating attorney of the gay and lesbian organization's Marriage Project.

If and when the question of same-sex marriage reaches the U.S. Supreme Court, Buckel might well be among those who argue the case. On this day, still blinking at a strange new legal landscape, he was hurrying to piece together the few bits of information he could offer.

Buckel never got the men's names. He never even got to finish counseling the couple, the very first to call him since our northern neighbor decided to end sex discrimination in marriage. But he started in as best he could, given the uncertainties involved.


The Supreme Court's Big Week

Sanford Levinson on the Conservative Court's Liberal Decisions

Laura Conaway on Same-Sex Marriage

Richard Goldstein on the Sodomy Ruling. Plus: Attention, Sodomites!

Lani Guinier on Affirmative Action

Yes, you can get married in Canada without being a resident, though you do have to live there to file for divorce, Buckel explained. When you come home, you will be as married as anyone who ever married there, be they lifelong Torontonians or New Yorkers hitched in a Niagara Falls rent-a-chapel. No, the United States will not recognize your marriage, and what exactly that means when you apply for a mortgage or file a tax return is anyone's guess (see sidebar).

Partway through, Buckel says, the couple told him they needed to hang up. He doesn't know whether they drove straight to the altar or turned back. "We all know and understand that feeling of wanting, finally, to be considered first-class citizens," he says. "I'm not surprised folks are jumping in cars and planes. It continues to gnaw at you, just that you can't do the same thing as other people."

Plenty of other same-sex American couples have most certainly taken the plunge. As of Monday, about 30 had exchanged vows in Toronto alone, many of them in the city's Civic Wedding Chambers, upstairs from the license issuer's office. In trying to cement their unions and safeguard their families, they have surged across a horizon line, right off the existing judicial map. No one—not the activists, not the lawyers, not the accountants, not the homophobes or the judges or the lesbian partners of 20 years—knows what will happen when the newlyweds come home.

With the judicial thumbs-up in Canada and another expected this month in Massachusetts, the issue of same-sex marriage is suddenly moving faster than almost all but its fiercest advocates ever hoped, or even perhaps thought wise. Lawyers who've been tiptoeing their way through a carefully considered strategy—sue for rights in a friendly state like New Jersey, then use that victory to press a federal case—now face the prospect of couples bringing suits independently, demanding recognition of their Canadian licenses in places far from welcoming. Gay Americans could grab at the prize of full citizenship too rashly, some leaders say, at the price of losing it all.

"For those who contemplate litigation as a response to discrimination against their marriage, it is critical to remember that any legal case has profound implications beyond the individuals involved," read a June 13 statement posted online by five leading gay organizations, including Lambda. "Couples should absolutely not race across the border just to set up lawsuits; the wrong cases could set us back for years. We will be strongest if we work together."

Sixteen days after the Canadian decision, the U.S. Supreme Court's decision on sodomy seemed, at least temporarily, to dwarf the impact of the marriage ruling in Ontario. Declaring June 26 that homosexuals have the right to consensual relations behind closed doors, the Supreme Court knocked down a major hurdle to same-sex marriage. In an instant, gay lovers went from being criminals in 13 states to citizens imbued with constitutional rights. The 6-3 majority included four justices appointed by Republican presidents, signaling to lower benches a broad willingness to re-examine the status of same-sex couples under American law.

"The state cannot demean their existence or control their destiny by making their private sexual conduct a crime," Justice Anthony Kennedy wrote in the majority opinion. His analysis was based on the Fourteenth Amendment, which guarantees the right to life, liberty, and equal protection—fundamental principles behind the idea that gay couples are entitled by the Constitution to marry. In fact, Justice Antonin Scalia raised that specter in his hysterical dissent, backed by Justice Clarence Thomas and Chief Justice William Rehnquist. "What a massive disruption of the current social order," Scalia wrote of the majority's action, in words that should sound hosannas in the heart of every oppressed queer in America.

Sensing the endgame, anti-gay forces have already begun pushing for a constitutional amendment that would wrest control of the issue from the courts. In May, Representative Marilyn Musgrave of Colorado reintroduced the Federal Marriage Amendment, which would limit marriage to the union of one man and one woman. Senate Majority Leader Bill Frist wasted no time, telling the press Sunday that he supported the measure, moving it from the back burner to the front line.

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