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An equal right to marry.

On May 5, 1993, the Hawaii Supreme Court held that the refusal to issue marriage licenses to same-sex couples is sex discrimination in violation of that state's constitutional guarantee of equal protection (Bachr v. Lewin). The court sent the case back to the lower court, where the state must show "compelling" reasons why only different sex couples should be permitted to marry. Failing that, the court is expected to rule that the state may no longer prohibit same-sex marriages. The six couples in this case are represented by Honolulu co counsels Dan Foley and Evan Wolfson, whose respective services have been provided through the Hawaii Equal Rights Marriage Project and the Marriage Project of the Lambda Legal Defense and Education Fund, Inc.

This carefully timed and crafted litigation is the first direct challenge to a long standing injustice in America. The status quo, which blithely denies the equal right of civil marriage to all lesbian and gay citizens, is long overdue for a change.

Today, same sex couples are not permitted to legally marry in any state--no matter how long they have been together, how committed their relationship is, or how much their families need the protections, benefits, and responsibilities that come with civil marriage.

Less than 30 years ago, interracial couples were still prohibited from legally marrying in some parts of the United States. (Some of the same discriminatory arguments are being used today to prohibit same-sex couples from participating equally in this basic civil and human right.) Marriage has also been defined in the past as a union between people of the same religion or an arrangement in which wives were the property of their husbands.

Over the years, these formerly "traditional" elements of marriage have changed to reflect the ideal of individual equality under the law. Securing same-sex marriage is, quite simply, another advance in the struggle to extend to all American citizens the equal right to enter into a contract with their life partner of choice.

Although a few religious faiths perform same sex marriage ceremonies, they have no legal recognition or legitimacy. Religion and civil marriage are two distinctly separate things. Surely this is entirely appropriate. Surely the state should not have the right to dictate for whom religious bodies may perform marriage services--just as religious institutions shouldn't dictate who may obtain a civil marriage license from the state.

In practical reality, most gay and lesbian couples assume many of the same responsibilities as married couples and are certainly more similar to their heterosexual counterparts than they are different. Regardless of sex, race, religion, or national origin, there are the day-to-day worries about paying the mortgage and what to make for dinner. Same-sex couples face the same questions about how to raise children and how to prepare for retirement.

However, same sex couples have none of the legal protections or bene fits that accompany civil marriage. In fact, despite taking responsibility for their partner's well-being--both economically and emotionally--gay couples are legally treated as nothing more than roommates. One partner is often denied visitation and involvement when the other is hospitalized. Gay couples are refused family health coverage, taxation benefits, and inheritance rights. They are also denied protection in the event of a relationship ending--sometimes resulting in a partner's children being removed by the state. Simply put, those gay couples who want or need the legal, social, and emotional security provided by marriage are denied all these benefits.

The simple point is that all Americans are entitled to equal rights under the law. As the Supreme Court ruled in May 1996, lesbians and gays cannot be denied their basic civil rights simply because of their sexual orientation. The point is that civil marriage is not a special right or commodity or an exclusive club that should be limited to some citizens; it is a fundamental right that must be available to all. The benefits of marriage, which are conferred by society to honor the love and commitment of two people, cannot be justly withheld from certain citizens and afforded to others.

Legal marriage is a civil contract between two people that provides certain rights and imposes certain obligations. It makes spouses responsible for each other's debts, it allows them to have a say in each other's medical care, and it can determine the distribution of property after the death of one spouse. What possible justification can there be for denying this basic civil right to a few million same-sex American couples?

Winning the Hawaii court case may prove to be the easy part of the battle, which already shows signs of becoming more acrimonious than the controversy over gays in the military. In a formidable backlash against equal marriage rights, purveyors of mean spirited ignorance and bigotry are hard at work to circumvent legal reform. To these forces, Washington State's liberal governor Mike Lowry has responded eloquently in a recent op-ed piece in major state newspapers:

Discriminating against gays and

lesbians by claiming their decision

to love each other and make a personal

commitment is somehow

bad for society and a threat to

marriage is discrimination born of

ignorance and founded on fear.

It has been more than 150 years

since writer William Hazlitt said,

"Prejudice is the child of ignorance."

The tenuous state of "traditional family life" in America is, of course, due to a complex matrix of social and economic factors, as well as changing standards and mores. In any event, how can gays possibly be held responsible for "the breakdown of the institution of marriage" when they've never been permitted to participate in it? And they certainly can't be accused of contributing to the rise in "out-of-wedlock" births.

So why aren't we discussing the problem of American families honestly? Could it be because these staggering influences can't be reduced to soundbites? Could it be because an election is being held? Could it be because turning gays and lesbians into scapegoats is easier than coming to grips with our real problems?

Opponents of same-sex marriage apparently believe that marriage is a finite, nonrenewable resource of which there simply isn't enough to go around--and it is their mission to conserve it. In anticipation of the Hawaii court decision, Utah has passed a law under which the state will refuse to recognize these marriages. Similar legislation is being attempted in Alaska, South Dakota, Washington, and other states. Equal marriage rights advocates in several other states are dealing with proposed legislation which would ban same-sex marriages and refuse to recognize gay marriages performed in other states. The governor of Mississippi has signed an executive order banning recognition of same sex marriages in that state.

On the national scene, the vehicle for creating fear out of ignorance has been dubbed the Defense of Marriage Act--a viciously misleading name, since nothing in this proposal would have a positive effect on the institution of marriage or any of its participants. The act would define marriage for purposes of federal benefits as a union between one man and one woman and give states the right to refuse same-sex unions and not to recognize them from other states.

I suppose we could have expected this mean spirited legislation from right-wing ideologues. But I, for one, was shocked and dismayed when President Clinton announced his intention to sign it. In a second betrayal of the trust of millions of gay Americans, a president who pledged to uphold their equal rights has endorsed and furthered discrimination against them for the worst possible reason--because the opinion polls told him to.

The act has already passed both houses of Congress. In the House, the vote was 342 to 67; only one Republican, 65 Democrats, and one Independent had the intestinal fortitude to vote against it. In the Senate, the vote was a dismaying 85 to 14, with such liberal Democratic stalwarts as Joseph Biden (Delaware), Bill Bradley (New Jersey), Christopher Dodd (Connecticut), Tom Harkin (Iowa), Patrick Leahy (Vermont), Barbara Mikulski (Maryland), Paul Sarbanes (Maryland), and Paul Wellstone (Minnesota) all voting in favor of the bill. The Senate also rejected, by a lesser margin, a bill that would have extended federal workplace discrimination protections to gays and lesbians (and this despite overwhelming public support of the bill, according to the polls).

During the House debate, supporters of DOMA tried to shift the focus by describing gays as "immoral, perverse, and unnatural" and as sinful heterosexuals who should get their act together and marry people of the opposite sex. Thrice-married Representative Bob Barr (Republican--Georgia), the bill's chief sponsor, actually depicted himself as a valiant defender of the sanctity of marriage--and wasn't laughed out of the building when he did it!

Opponents of equal marriage rights harp on the alleged need to defend marriage from the threat of destruction by homosexuals. Marriage, they argue, is the single most important stabilizing foundation in our society "because it creates long-lasting relationships and thereby strengthens and builds the community." But if marriage is such a stabilizing influence, why should we exclude millions of people from its domain?

The question is not whether or not America "needs" or "is ready for" same-sex marriage. The question is why millions of gay and lesbian couples in America should have to wait any longer for their civil rights.

For more information on and to get involved in winning this historic battle, contact the Lambda Legal Defense and Education Fund at its national headquarters in New York at 212-995-8585, its Midwest regional office in Chicago at 312-759-8110, or its Los Angeles western regional office at 213-937-2728.

Barbara Dority is president of Humanists of Washington, executive director of the Washington Coalition Against Censorship, and cochair of the Northwest Feminist Anti-Censorship Taskforce.
COPYRIGHT 1996 American Humanist Association
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1996, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Title Annotation:Civil Liberties Watch; same-sex marriages
Author:Dority, Barbara
Publication:The Humanist
Article Type:Column
Date:Nov 1, 1996
Previous Article:Educational snake oil.
Next Article:Phenomenon.

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