By Steve Weinstein
By Devon Maloney
By Tessa Stuart
By Alison Flowers
By Albert Samaha
By Jesse Jarnow
By Eric Tsetsi
By Raillan Brooks
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.
Sanford Levinson on the Conservative Court's Liberal Decisions
Laura Conaway on Same-Sex Marriage
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 onenot the activists, not the lawyers, not the accountants, not the homophobes or the judges or the lesbian partners of 20 yearsknows 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 strategysue for rights in a friendly state like New Jersey, then use that victory to press a federal casenow 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 protectionfundamental 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.
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."
That gay couples suffer from being denied marriage rights is clear. After President Clinton signed the 1996 Defense of Marriage Actwhich limited marriage to opposite-sex couples and is now the biggest legal barrier to having a Canadian same-sex marriage recognized herethe 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 kidsbut 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 split49 percent yea, 49 percent nayon 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 officeand 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 enthusiasmof homophobes and gay people alikeafter 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.
Bringing a marriage suit is complex and expensivethe current case in New Jersey has a team of five lawyers and is expected to last up to three years. It's the kind of process almost guaranteed to discourage grassroots activism, and it has. Aside from the occasional sit-in at a marriage bureau, there has been scant protest on the issue, and scant attempt to organize any. But for a movement to capitalize on legal victories, it needs a militant presence. Within months, gay leaders could be fighting a 50-state battle over the Federal Marriage Amendment, a raging brushfire of a campaign that would require millions of dollars and thousands upon thousands of committed, outspoken volunteers.
While this great constitutional question plays out, everyday couples and families are conducting their lives with only the slimmest legal protections. Canada has opened a door, and people have started to pour in. One worker at Toronto's Civic Wedding Chambers described scenes of middle-aged men with flowers in their lapels crying, of ministers crying, of attendants crying, all of them going through box after box of Kleenex. The chambers have been shoehorning couples into the schedule, accommodating everyone as fast as they can.
Susan Searing married Christine Jenkins, her partner of 18 years, while the two were in town for a librarians' convention. Searing wore a blue linen dress, Jenkins a rayon shirtwaisted dress with a floral Arts and Crafts print and a red hat. "We want everything any other married couple has," says Searing, who lives with her partner in Illinois. "American law will catch up, and when it does, we'll be ready."
Until then, America's gay families remain precariously perched on the edge of the legal frontier. Hillary Goodridge, who with her partner, Julie Goodridge, is a lead plaintiff in the Massachusetts case, says she had to finagle her way into the neonatal intensive care unit after Julie gave birth to their daughter, Annie. "When you have a kid, it just raises the stakes so much," Hillary says.
Annie is now a grade-schooler, and though the Goodridges think their chances in court are good, they don't know what to tell her if they're dealt an unexpected defeat. "It's incredibly nerve-racking," Julie says. "There's only so much a seven-year-old can understand."