Will New Jersey stop at civil unions? The state supreme court says gay couples deserve equality in marriage, but it gave the legislature 180 days to define what that means. If lawmakers offer civil unions, don't expect much of a celebration.
So where does that leave us in the fight to have our unions recognized as marriage--an effort that seems to become more exhausting the longer it goes on? Underneath the highs and lows since Massachusetts Connecticut's enactment of civil unions with little fanfare or national press, California's legislature passing a same-sex marriage bill only to see it die on Gov. Arnold Schwarzenegger's desk, dismal court losses in Washington State and New York--the gay rights movement has continued to log steady, irreversible progress.
The rights of marriage now seem within reach, both through the courts and state legislatures. But there will be a lot of compromise along the way--a lot of "civil unions." Should gays and lesbians back off from their all-out fight for the m word and focus instead on a sustained drive for equal rights?
The answer to that question from most gay leaders is a firm "no, but. ..." David Buckel, the head of Lambda Legal's Marriage Project, which led the legal charge in New Jersey, asks, "Do we lie down in front of the path of civil unions and oppose them? Any protections are better than none. But where we could win the right to marry and New Jersey is certainly one of those places--we should be fighting for marriage."
Civil unions are only won by asking for marriage in the first place, says veteran marriage activist Evan Wolfson, executive director of Freedom to Marry. Today's support for such compromises represents a "placeholder in people's thinking," Wolfson says, as they straddle the fence between their belief in equality and their entrenched view of heterosexual marriage. But make no mistake, he says, the goal is to get them over the fence.
Wolfson, who has long been at the forefront of LGBT legal activism, has also been one of the most consistent advocates of what he calls "the scary work of winning"--the effort to educate the public and gradually build the kind of popular support that will eventually win the hearts and minds of lawmakers and judges. Town meetings and debates are not as dramatic as court cases. Coming out to coworkers is not as exciting as a marriage protest at City Hall. But this is arguably the stuff of ultimate victory.
Perhaps the biggest worry is that acceptance of civil unions as an incremental approach might lead not to marriage but to a long period of institutionalized inequality, ill which civil unions become the norm for gay men and lesbians--and marriage cements its position as the exclusive realm of heterosexual couples. "That's the $64,000 question," says Gary Buseck, legal director of Gay and Lesbian Advocates and Defenders, which brought the Vermont and Massachusetts lawsuits. "I think a lot of people fear we might get stuck in that place."
In Vermont the civil unions category was unheard of prior to the 1999 decision in Baker v. State, in which the state's justices ordered lawmakers to equalize the rights of gay and straight couples. "Without a request for marriage," says Buseck, "the legislature would have found no need to create this institution. And it does raise the question of how you bargain with the dominant culture for equality. Does setting out to get civil unions only get you something less?"
While the media spotlight that shone so brightly on Vermont seven years ago has long since shifted to other parts of the country, the fight for marriage in the Green Mountains has never faltered. Beth Robinson, an attorney who argued the Vermont marriage case on behalf of GLAD, believes the state legislature will enact marriage equality in the near future thanks to the continuing political work that followed the Baker ruling.
"I wouldn't want anyone to look at our experience in Vermont, especially in the context of the New Jersey debate, and say, 'Hey, civil unions were good enough for them in Vermont, what's the matter with you?'" she says. "Because they're not good enough for us in Vermont. They were a major step in 2000, in a dramatically different political climate, but we're working hard to move beyond them. We're feeling optimistic that we're going to have marriage in three to five years in Vermont, and it's going to come out of the legislative process."
If Robinson is right, Vermont will be a lesson--not in the benefits of compromise but in the value of activism. Such activism is what gays in New Jersey now vow to embrace--and if we ever hope to say, "I do," well have to step up and fight for it.
Marriage and the courts: What's next?
This year saw marriage rulings in New Jersey, Washington State, and New York. Coming soon: Maryland, Connecticut, California, and Iowa, all of which have same-sex marriage cases currently working their way through the judicial system.
* Maryland's highest court will hear oral arguments in December in a case filed by the American Civil Liberties Union in July 2004. After a lower court ruled in favor of same-sex couples last January, the high court took immediate review of the case.
* The Connecticut supreme court is now being briefed on a marriage case brought in August 2004 by GLAD. Oral arguments are not yet scheduled but could be heard next spring. In July a lower court ruled that the state was not obliged to offer same-sex marriage because of the civil unions already in effect.
* In October a California appellate court upheld the state's restrictions on marriage, ruling that the state's domestic-partner registry provided virtual equality; the decision will be appealed to the California supreme court.
* A marriage lawsuit filed by Lambda Legal in Polk County, Iowa, in December 2005 is now pending before a county court.
Rostow is a freelance writer based in Austin.
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|Publication:||The Advocate (The national gay & lesbian newsmagazine)|
|Date:||Dec 5, 2006|
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