Civil union, civic divide.

Byline: Bill Bishop The Register-Guard

At the tip of Cape Cod on a muggy August day two years ago, Sharon and Rebecca Flynn stood before a Unitarian minister, their friends and families, and got married.

They kissed, cut a cake, toasted their future together and danced the night away. Their young niece drew a picture of them and titled it, "The bride and the other bride."

Now they hope to return to Massachusetts this summer to be married again - this time in a civil ceremony recognized by the state. A Massachusetts Supreme Judicial Court ruling last month said same-sex couples have the same right as traditional couples to share in the hundreds of legal benefits of civil marriage, ranging from coverage under their spouse's employer-provided health insurance to tax breaks and property inheritance rights.

"I don't care about public opinion. Public opinion will always lag behind," says Dr. Sharon Flynn, 34, a Eugene internist. "In this country, the premise is we treat each and every one equally. But we aren't treated equally just because of who I choose to partner with."

One example: Flynn pays federal income tax on the value of health insurance benefits her employer provides to Rebecca. That's a tax penalty married couples don't pay.

For gays and lesbians, the Massachusetts ruling is another in a series of landmark court rulings that seem to point inevitably to nationwide recognition of same-sex civil marriages, with all the rights and responsibilities afforded to traditional married couples. But gay rights advocates say the legal and political landscape is far more complex and the issue is far from settled.

"It's a spectacular boost of positive energy," says Tim Smith, who, with his partner, Kent Kullby, worked to get a domestic partner registry in Eugene that now recognizes 60 unmarried couples. The registry provides no extra benefit to domestic partners, other than helping gay and lesbian couples feel recognized and less ostracized, Smith says.

"But it's not done until it's done," he says.

Legal experts, supporters and opponents of same-sex marriage foresee a long and uncomfortable courtship with public opinion and politics on the state and national level before the matter is settled. The outcome isn't assured for either side.

After all, Massachusetts isn't the first to propose civil marriages for same-sex couples, and the federal government already has passed a law allowing states to ignore same-sex civil marriages if any state allows them in the future.

When a Hawaiian appeals court moved to order the state to issue marriage licenses to same-sex couples, the state's voters in 1998 approved a constitutional amendment forbidding it by a 2-to-1 margin.

A year later, facing a trial court ruling in Alaska saying the state can't interfere in a person's choice of a marriage partner, voters passed a constitutional amendment defining marriage as being between a man and a woman. Altogether, 37 states have so-called "defense-of-marriage" laws that block same-sex civil marriages, says Roey Thorpe, executive director of Basic Rights Oregon, a civil rights advocacy group on gender issues.

Meanwhile, the 2000 census showed 611,111 households nationwide reported themselves as "same-sex." In Oregon, the census showed 8,932 same-sex households. In Lane County, the number was 957.

Although same-sex households dot the landscape, the question of same-sex civil marriage stirs emotional fervor because people tend to confuse civil and religious marriages, says Harriet Merrick, a member of the board of the American Civil Liberties Union of Oregon.

Civil rights activists see the denial of marriage benefits as discrimination based on religious beliefs, Merrick says. If states grant civil marriage rights to same-sex couples, churches will still remain free to perform religious marriages any way they wish.

"A separation of church and state is healthy for both," Merrick says.

Civil rights activists are bracing for a strong backlash against Massachusetts' ruling, says Dave Fidanque, executive director of the Oregon ACLU.

So far, the ruling hasn't sparked any political reaction in Oregon, says Kevin Mannix, chairman of the state Republican Party and legislative sponsor of a failed 1999 effort to put a defense-of-marriage provision in the state constitution.

"The Republican Party here in Oregon strongly supports traditional marriage," Mannix says. "The question is whether there is going to be any political action. Right now, all is quiet. It's quiet because no one wants to march off into no-man's land."

With Oregon's history of hard-fought ballot battles over homosexual issues, neither side is anxious to risk defeat.

"Most of us want to be very careful about the tone and atmosphere when we deal with this issue. It's not anti-gay, it's pro-traditional marriage," Mannix says. "Most of us would like this issue to go away - don't ask the taxpayer to pay, don't ask the government to validate."

As it stands, Congress is the first place to look for political reaction to the Massachusetts ruling, and the issue may overshadow more pressing national issues such as taxes, the economy and jobs, Mannix says.

The legal arguments for an amendment to the U.S. Constitution to defend traditional marriage would be strong, Mannix says. The government's interest in sanctioning marriage is the protection of children and families, he says. Thousands of years of tradition support it, Mannix says. Government approval of same-sex marriage would put some groups in untenable positions by, for example, requiring churches to extend insurance benefits to gay partners of their employees, he adds.

There may be room for compromise, Mannix adds.

He notes that Vermont responded to a court ruling by creating civil unions, granting equal rights to same-sex partners without issuing marriage licenses. In San Francisco, employees are allowed to name one beneficiary for their employer-provided insurance - without regard to the relationship between the beneficiary and the employee, he says.

"There are a lot of civil compromises," Mannix says.

A cascade of legal and political action lies just ahead as people begin trying to exercise their rights, Fidanque says. State courts likely will see the first legal challenges, while Congress will probably handle the opening round of political action.

One of the first legal targets is likely to be the federal Defense of Marriage Act, approved in 1996.

Federal law for centuries has required states to give "full faith and credit" to the official actions of other states. But if the Flynns get a marriage license from Massachusetts, Oregon and other states aren't required to recognize their married status under the federal act.

The federal act may be challenged as unconstitutional because it discriminates or because it infringes on states' rights, Fidanque says.

"The real question is can the feds eliminate the power of states to regulate marriage - something that has been traditionally a state function," he says.

The political action could happen in Congress, if federal lawmakers move to amend the U.S. Constitution to prohibit same-sex marriage. If the required number of states ratify the amendment, there is nothing any court or state legislature can do to allow civil marriages for same-sex couples.

But if Congress doesn't act, then the issue turns on states' reactions to Massachusetts' same-sex marriage licenses. There could then be an avalanche of legal challenges around the nation, he says.

There is no lack of irony in the legal situation, Fidanque says. For example, Oregon recognizes marriages in a few Southern states where it is legal for brides to be 12 years old, or younger, if they are pregnant.

"Those marriages would be considered felonies in most states. Yet, Oregon law recognizes those as valid marriages," Fidanque says.

So, civil rights advocates might sue to question how Oregon can justify withholding recognition of civil marriages between consenting adults based solely on sexual orientation.

Another example is Oregon's recognition of foreign marriages. Under Canadian law, same-sex couples can be married without any residency restrictions. Same-sex couples in Oregon could drive to British Columbia, get married and return to Oregon with a presumably valid marriage license.

"Although most states recognize foreign marriages, no federal statute requires it," Fidanque says. "It will be a stronger case than for people who get married in Massachusetts."

None of this is lost on Rebecca Flynn, a Harvard Law School graduate studying to get a license to practice law in Oregon.

"My first reaction (to the Massachusetts ruling) was joy. My second reaction was I felt sick to my stomach because I knew what it would mean for the 2004 election and because I'm very worried about a federal constitutional amendment," Flynn says. "The other side will be galvanized. They will see it as a real threat to marriage."

A constitutional amendment requires 38 states' approval for a three-fourths majority. With 37 already having defense-of-marriage laws, proponents of a constitutional amendment banning same-sex civil marriages presumably would have the upper hand going into a nationwide political campaign.

"It's not as if it's going to be tough to get an amendment ratified," she says.

In the meantime, advocates for equal marriage rights might be better off seeking less controversial alternatives - such as Vermont's civil union provision, she says.

On the living room wall of the couple's cozy Eugene cottage hangs a Vermont Civil Union certificate with their names on it. In Vermont, it grants couples all the legal rights and responsibilities of married people. In Oregon, it carries no legal weight.

As the Flynns begin to plan for children they want to raise, it's just one more page in a folder full of legal documents they've paid many hundreds of dollars for in order to be as legally connected as the law allows their family to be.

"There is a time and a place for incrementalism," Flynn says. "If we are just patient, we will get our equal rights. I think in the short term it's better if we get our equal rights and it's called 'civil unions.' '

MARRIAGE LAWS

A look at recent developments:

In response to lower court rulings, Congress passes the Defense of Marriage Act in 1996, which allows states to ignore marriage licenses issued by other states to same-sex couples

Thirty-seven states, but not Oregon, have defense-of-marriage legislation, banning same-sex marriages

Before the Hawaiian Supreme Court issued a final order requiring the state to issue marriage licenses to same-sex couples, voters in 1998 passed an amendment to the Hawaii constitution forbidding same-sex marriages

After a 1998 trial court ruling that the state of Alaska can't interfere in a citizen's choice of marriage partner, Alaskan voters pass a constitutional amendment later that year defining marriage as being between a man and a woman

The Vermont Supreme Court rules in 1999 that same-sex couples are entitled to the protections and benefits of marriage. The Legislature responds by creating the "civil union" law, granting all the legal rights of marriage without issuing marriage licenses.

Due to timelines in the process for amending the state constitution in Massachusetts, voters cannot overturn the recent court ruling until at least 2006. In the meantime, marriage licenses will be issued, setting the stage for lawsuits to enforce the licenses in other states.

Congress may react by initiating an amendment to the U.S. Constitution defending traditional marriage. It takes majority votes in 38 states to ratify the change, which would then block same-sex marriages in all states.

- The Register-Guard

CAPTION(S):

Rebecca (left) and Sharon Flynn were married two years ago by a minister in Massachusetts. Their Vermont Civil Union certificate guarantees them the same rights as other married couples - but only in Vermont. They hope to return to Massachusetts for a civil marriage.