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Same-sex marriage: equal rights or the death of family?

Some marriages will not last forever, but one controversy over the institution is likely to endure till death do us part -- the legal debate over what constitutes a family.

The traditional view of family -- a man, a woman, and the children that may result from their union -- still dominates U.S. society. But advances in reproductive medical technology the diminished stigma of divorce, the increased prevalence of single parenthood, and the heightened visibility of gay men and lesbians have altered the landscape for defining family.

The changes are readily apparent in the types of cases that come before the courts, particularly in the area of family law. For example, grandparents now fight for legal visitation with their children's children, families fight over possession of a deceased man's frozen sperm, the Social Security Administration must decide if a child conceived with frozen sperm after her father's death can receive survivor's benefits. And soon, a state trial court in Hawaii will decide whether people of the same sex can marry each other.

The Baehr decision will likely reverberate not only across the islands of Hawaii but, if the court rules in favor of same-sex marriage, across all 50 states, which may be bound to honor unions that were legally made in Hawaii.

The central issue in the case, according to the plaintiffs, is whether Hawaii's marriage law discriminates on the basis of gender, not sexual orientation. Arguing for equal protection, they contend that the state discriminates by offering specific benefits to married men and women that it denies to male couples or female couples.

"This is a constitutional case about sex discrimination," said Evan Wolfson, plaintiffs' cocounsel and director of the Lambda Legal Defense and Education Fund's Marriage Project in New York. "The decision obviously will have ramifications for the gay community, but that's only part of it.

"Our fight to be included [as equals in society] has pointed out that the law has not kept pace with how families live," Wolfson said. "We're just bringing our piece to it. Our fight to make the law protect all families is much more in tune math reality."

Washington, D.C., lawyer Deborah Luxenberg, who handles legal matters for both heterosexual and homosexual couples, said her family law practice "looks a lot different than it did a decade ago ... because there are more complicated relationships as a result of people breaking up. The expansion in the definition of family has changed in terms of who is involved and who wants a relationship with the kids."

Luxenberg said her small firm recently handled three separate child custody cases involving natural fathers and mothers who were not married and had never lived together. "That never would have happened 10 years ago," she said.

She added that in the District of Columbia, gay and lesbian couples are allowed to co-adopt each others, children, giving them legal status on par with heterosexual families.

"People are creating new family structures," Luxenberg said. "But it's optimistic to think that courts everywhere recognize gay people, because they haven't."

By most accounts, the Hawaii court is expected to find that gay couples can get married, because the state supreme court ruled in 1993 that Hawaii violated the U.S. Constitution's Equal Protection Clause by denying marriage licenses to three same-sex couples. (Baehr v. Mike, 852 P.2d 44 (Haw. 1993). The trial involving these three couples resulted only because the high court, ordering the state to show what "compelling interest" it has in its discriminatory practice.

At the Hawaii trial, which ended September 20, state Deputy Attorney General Rick Eichor focused on the state's interest in ensuring children's "optimal" development, which he said occurs in an environment fostered by married, heterosexual couples.

The plaintiffs argued that parenting qualities -- such as love, nurturance, guidance, and protection -- are most important to a child's development.

Some courts have ruled that sexual orientation is only one of many factors a judge should consider when determining a child's best interests in a custody case involving a parent who is gay. (Matter of Astonn H., No. V-522/92 (N.Y., Kings County, Fam. Ct. Oct. 24, 1995).) Others courts -- most notably in Virginia -- have found that a parent's homosexuality is reason enough to deem the parent unfit to raise children. (Bottoms v. Bottoms, 457 S.E.2d 102 (Va. 1995).)

Lawyers for the Hawaii plaintiffs argued that while children's issues are important considerations in any marriage, many heterosexual couples marry for reasons other than procreation.

Dan Foley, of Honolulu, who is co-counsel for that plaintiffs in the Baehr case, said that civil marriage brings protections to all types of families whether they have children or not.

Whatever the court decides, both sides say they will appeal if they lose, which means it could be several years before the debate is settled.

In the Legislatures

Meanwhile, 37 state legislatures have tried to pass laws banning recognition of same-sex marriages. One attempt failed in Hawaii earlier this year. Legislators in 16 states have succeeded.

The backlash culminated in September with the federal Defense of Marriage Act. One dan, after the Hawaii trial ended, President Clinton signed the legislation, which Republic Bob Dole had cosponsored in the U.S. Senate as a pre-emptive strike against a favorable decision for gays in Hawaii. The federal act allows a state to refuse to recognize same-sex marriages.

Some legal experts argue the act violates the Tenth Amendment on state's tights and that it will be struck down, especially, in light of Romer v. Evans. (116 U.S. 1620 (1996).) In that case, the U.S. Supreme Court turned back Colorado's anti-gay rights initiative.

Other experts suggest that the Constitution's Full Faith and Credit Clause will require legal marriages in Hawaii to be honored in other states.

But Stanford University law professor Kathleen Sullivan says that this clause "does not work that way. It does not make Hawaiian law [into] California law." (Mike Lewis, Law Professor Says Proposed Ban on Same-Sex Marriages Could Backfire, L.A. Daily J., July 11, 1996, at 3.)

Sullivan added that proponents of same-sex marriage have a certain amount of built-in leverage that has nothing to do with the Full Faith and Credit Clause.

"If there is an equal protection problem, it exists right now," she said. "It exists the minute Bill and Steve go to the [county clerk's] office and ask for a marriage license. The equal protection issue is going to come up someday [in California], but you don't need Hawaii to get there."

Sullivan added that state laws banning same-sex marriage could actually achieve the opposite result by creating a legal target" where one did not previously exist.

"You would have a big fat lawsuit with a very good chance of winning on the grounds that it's a discriminatory refusal to recognize [homosexual marriages]," she said.
COPYRIGHT 1996 American Association for Justice
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Copyright 1996, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Author:Brienza, Julie
Date:Dec 1, 1996
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