Marriage of Two Minds

Gay nups may have become inevitable, but for now it's a world of pain

If you're gay and looking to marry, the news might seem all white lace and promises.

Last week, Massachusetts lawmakers bucked an attempt to halt gay marriages. On September 14 they trounced, by a vote of 157 to 39, a proposed constitutional amendment that would have eliminated the same-sex nuptials made legal two years ago, and replaced them with civil unions. The final count marked a dramatic shift; 105 of these lawmakers had supported the same amendment last year.

Just eight days earlier, California had been the state breaking ground, when its legislature became the first such body in this country to authorize civil-marriage rights for same-sex couples. The victory was hard-fought: It took activists 20 months of wheedling and browbeating just to keep the bill alive. They won final approval by a narrow margin, 41 to 35. Yet momentum, once again, had been on their side, causing activists to hail a new chapter in the push for marriage equality for gays and lesbians nationwide.

As Evan Wolfson, the executive director of Freedom to Marry, in New York, puts it, "This vote means we've entered a new era. It doesn't mean we'll win overnight, but it means we've turned the tide."

Maybe so. Things have gotten better for gay people in some places across the country since 2004, when the marriage equality movement kicked into overdrive. This year, the Connecticut legislature enacted a civil-unions law to recognize gay couples, without a court order. The law goes into effect next month. And last year, New Jersey granted couples such limited domestic-partnership benefits as hospital visitation rights. Meanwhile, lawsuits challenging the denial of marriage licenses to same-sex partners are making their way through the courts in both states, setting the stage for full equality.

For the rest of the country, though, the reality is much grimmer. Activists have had to remain on the defensive, fending off one constitutional amendment after another—and measures that not only ban gay marriage, but also prohibit any legal recognition whatsoever. As many as 18 states have defined marriage in their constitutions as exclusively heterosexual, and the numbers continue to grow (see sidebar). In Texas, voters will cast their ballots on just such a ban come November. By 2006, Alabama, South Carolina, South Dakota, Tennessee, and Wisconsin will have followed suit.

Some places keep piling on the pain, pushing more anti-gay ballot measures in the 13 states that approved constitutional bans on gay marriage last year. This time, the initiatives take aim at gay families, prohibiting same-sex couples from adopting. Already, activists have had to gear up for this second wave in Kentucky, Ohio, Missouri, and Georgia. The list could easily grow.

Gay people can't even feel safe in progressive bastions. In California, less than 24 hours after the historic vote there, Governor Arnold Schwarzenegger vowed to veto the bill. At the same time, opponents have begun gathering up to 600,000 signatures to amend the state's constitution to ban gay marriage by ballot referendum. They will also try to roll back the state's domestic-partnership benefits, which gay couples fought hard to win.

Over on the other coast, in Massachusetts, opponents are gathering signatures too, trying to put another question banning gay marriage on the ballot. If they succeed, it won't appear before voters until November 2008. By then, gay couples will have been getting hitched there for four years. Nevertheless, those who oppose their legal unions are busy organizing volunteers and raising money.

What's worse is that traditional allies of gay people—from candidates for office to ministers and advocacy groups—have turned their backs. Gay people, a tiny minority, are left to fight this unending fight almost alone. "Can you imagine the reaction from people of 'goodwill' if this kind of attack was going on against any other minority?" says Matt Foreman of the National Gay and Lesbian Political Task Force. "People would have been up in arms, standing to defend the minority group. But because it happens to be gay people and marriage, it's a deafening silence."


To hear veteran activists tell it, the push for marriage equality, with its fits and starts, is going about as well as could be expected. It's all about taking two steps forward, one step back, as has happened in every civil rights struggle. Wolfson, of Freedom to Marry, describes the movement's evolution in his book Why Marriage Matters as a classic pattern, "a period of patchwork" in which some states move forward while others resist—or regress.

"There has never been a civil rights battle where all 50 states held hands and skipped happily towards equality," Wolfson says. Instead, we see 50 responses. Some states, like Massachusetts, will rush to legalizing gay marriage. Others, like Connecticut, will take incremental steps toward the final goal. Still others will pile on the anti-gay sentiment—Nebraska, for instance, not only passed a constitutional amendment banning gay marriage but wiped all forms of civil recognition for gay couples off the table.

Activists see a certain logic to the current lay of the land. Those places way ahead of the curve on the marriage issue—Massachusetts—have long led the country in the arena of gay rights generally. These states passed non-discrimination laws decades ago, or set up gay-straight alliances in high schools, or expanded hate-crimes statutes to include sexual orientation.


States that have basic protections for gay people are now wrestling with the marriage issue, activists say. Take New York. On the one hand, it seems to be moving toward equality. It's one of just six states without a law on the books defining marriage as between a man and a woman, it has a pending marriage lawsuit, and some officials have even performed gay nuptials, albeit illegally. On the other, the New York legislature has enacted rights for gay families only in tiny increments.

Resistance has been strongest where gay people have no protections at all—no anti-discrimination laws, no family registries, no advocacy groups. Activists were still trying to achieve these steps in all 50 states when the marriage issue went national, in 2004, with the first wave of amendments. They've had to shift their focus to staving off the bans. But, as Toni Broaddus of the Equality Federation explains, "It's difficult to fight an anti-gay-marriage measure in a state where gays who speak out can lose their jobs."

That sums up the case in Kentucky, where last fall, voters passed an anti-gay-marriage amendment by a landslide 75 to 25 percent. Andrea Hildebran, who heads the Kentucky Fairness Alliance, a gay rights group, describes a valiant campaign waged by tens of thousands of activists and allies there. They crisscrossed the state, knocking on doors, trying to sway the hearts and minds. And Hildebran says they achieved "a measurable difference" in how voters cast their ballots.

When they lost, however, it didn't come as a big surprise. Since 1998, Kentucky has had a law on the books defining marriage as exclusively heterosexual. And lawmakers have pushed numerous anti-gay measures for more than a decade. They've tried to recriminalize sodomy and prohibit local gay rights ordinances. They've even tried to justify murdering a homosexual with the "gay panic defense." Word has it the right will be filing yet another amendment. This time, activists expect it to ban gay adoption.

"There is nothing mysterious about Kentucky," says Hildebran. "It's just that we're further behind."

Even states known for their liberal ways have experienced setbacks. In March 2004, for instance, Oregon was brimming with hope. One county began issuing marriage licenses, and more than 3,000 same-sex couples tied the knot. Says Roey Thorpe, of Basic Rights Oregon, who married her partner, "I cried almost continuously for a couple of weeks because I understood what it felt like to be equal." One year later, she and thousands more had their unions nullified by the state's Supreme Court.

Yet that wasn't the last of the crushing defeats. Last fall, voters passed a constitutional amendment banning gay marriage, 57 to 43 percent. Activists returned to battle, pushing for a civil-unions bill instead. In July, it passed in the senate 19 to 10 and, Thorpe says, could have passed in the House too. But their efforts were thwarted last month, when the House speaker refused to bring it to the floor for a vote. "It was a terrible blow," Thorpe confides. "It left people wondering, 'Is there anything we can do?' "


Changing people's minds is not an impossible task—it just takes time. Case in point: California activists suffered a major blow when voters passed a referendum restricting marriage to heterosexuals in 2000. But they soon turned the negative around. The next year, they began pushing for limited domestic-partnership benefits, securing them in 2002. Then the legislature expanded those rights to mirror civil unions. And then came today's marriage bill. All of that happened within five years.

But activists don't have five years when trying to beat back a ballot referendum. Instead, they have three to six months. Glen Maxey, of No Nonsense in November, in Texas, is just beginning to grapple with the constraints of such a short time frame. As the group's name shows, they're not necessarily playing up the fight for full equality.

"This is a soccer mom campaign," he explains. Maxey hopes to tap into voters' general frustration with the legislature, which is sponsoring the measure.

"This campaign may be a long shot," he says, "but I know that we are uniquely situated to defeat this amendment, better than any state so far."

That, of course, is just what the movement needs, says the Task Force's Foreman. He considers the push to be at a "very critical moment" these days. By next year, anti-equality amendments, as opposed to laws, could reach half of all states in the nation. Once a state turns over, it becomes very hard for activists to move forward. Only four suits have been filed challenging an amendment—in Oregon, Ohio, Georgia, and Nebraska. In May, a trial judge struck down the Nebraska amendment, saying it denies gay couples fundamental rights guaranteed in the U.S. Constitution. Still, the state has since appealed to the federal appellate courts.

"This is a long-term grinding battle, but we have to create some wins," Foreman says. "It's us against them."

No one agrees more than Geoff Kors, who heads Equality California. He sees the potential 2006 vote as pivotal not just for California, but for the movement overall. "We know we have to stand the line by beating opponents in the ballot effort," he says. "If we do, we can turn back the tide for the nation. But if we don't, we'll be hard-pressed to stop these ballot measures anywhere."

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