Love and War

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

Like any constitutional amendment, it would have to be passed by a two-thirds majority in both the Senate and House, then be ratified by three-fourths of all state legislatures. For members of homophobic heavyweights like Focus on the Family and the Family Research Council, this amendment is a final stand.

In November, a queer-baiting National Review Online contributor predicted a "convulsive national battle" over the issue in the next presidential election. "The ultimate outcome of our coming national culture war over gay marriage will either be legal gay marriage throughout the United States, or passage of the Federal Marriage Amendment," Stanley Kurtz wrote. "There will be no middle ground."


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

That gay couples suffer from being denied marriage rights is clear. After President Clinton signed the 1996 Defense of Marriage Act—which limited marriage to opposite-sex couples and is now the biggest legal barrier to having a Canadian same-sex marriage recognized here—the General Accounting Office took stock of the privileges enjoyed by the legally married. Investigators came back with 1,049 examples, from being allowed to visit a sick spouse in the intensive care unit to being able to receive Social Security survivor benefits if a partner dies.

The more closely queer families cleave to the nuclear model, with a stay-at-home spouse and young kids, the more apparent the social inequities become. For example, companies increasingly permit gay workers to share health insurance with partners and kids—but that coverage is then taxed as though it were income, often at the relatively high rate paid by singles with no dependents. This can amount to an IRS hit of several thousand dollars. If you're gay and your partner dies, Uncle Sam can treat any property you're left as a taxable inheritance, a burden that can make it impossible for seniors on fixed incomes to remain in the houses where they've spent their lives. And if a pair needs to move to a retirement or nursing home, they have no legal right to be placed together.

According to the 2000 census, there are now some 600,000 same-sex households in the United States. Over time, Lambda calculates, each of these families could lose more than $200,000 in benefits and tax breaks taken for granted by straight couples. Worse, the system that overtaxes them refuses to extend basic benefits like Social Security to their families [see sidebar].

The latest surveys show most Americans think this kind of discrimination is wrong, though they still shrink from using the word marriage to describe a committed gay relationship. A Gallup poll in May found the country is split—49 percent yea, 49 percent nay—on whether gay people should be allowed to form marriage-like civil unions. When Gallup took a step back and asked whether gay people should receive the fundamental protections of marriage, such as Social Security benefits, approval jumped to 60 percent. Yet 37 states have passed anti-gay defense-of-marriage acts, putting the laws of the land at odds with the rapidly changing will of its people.

That's what John Krull discovered when the Indiana Civil Liberties Union sued on behalf of three gay couples who'd entered into civil unions in Vermont, but had those agreements rendered useless by their home state's anti-gay-marriage law. Krull, the ICLU's executive director, says his agency would have gone forward regardless of which way the wind was blowing. "We took a look at it and agreed that their rights had been violated," he says. "If you do the kind of work we do, it's pretty much incumbent on you to move ahead. Otherwise you're on the other side of the equation, on the side of those who are doing the oppressing."

Smacked down by a county court in May, the case is being appealed. Krull says local gay leaders attempted to wave the ICLU off, telling its lawyers the suit would spark a legislative backlash. But there was no backlash, he says, none at all. In meetings, state lawmakers told him they knew the tide was turning against foes of same-sex marriage. "We can read the numbers," he remembers them saying, "and we can see they're not going our way."

Still, for some experienced advocates, the Indiana case appears foolhardy. Matt Coles, an attorney and director of the Lesbian and Gay Rights Project at the American Civil Liberties Union, says the ICLU acted without consulting the national office—and he's not sure that was an especially smart choice. He pointed to a suit in Alaska that won in the courts in 1998 but resulted in a state constitutional amendment against same-sex marriage. Coles says the situation was iffy from the start, but the plaintiffs and their backers couldn't be dissuaded. "They just said, 'I want it, I want it, I want it,' " he says. "And what did they accomplish? They not only didn't accomplish nothing, they made anything harder to reach."

If it was impossible to hold back a single suit in Alaska, how could anyone expect to curb the enthusiasm—of homophobes and gay people alike—after the recent legal decisions? The family-values crew will try to rush the Federal Marriage Amendment out of Congress and into the states. Gay couples are rushing to wed in Canada, and many of them won't put up with their marriages being ignored in this country. They might seek relief in the courts, or they might turn to street activism.

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