December 31, 2004

The year of marriages

Good news in Massachusetts and Canada
is tempered by setbacks elsewhere

by Anthony Glassman

In one way or another, almost everything affecting the LGBT community in 2004 seemed to revolve around one issue: marriage.

For those in Massachusetts and most of Canada, 2004 was a darned good year. In parts of New York, New Mexico and Oregon, as well as in San Francisco, officials took steps to ensure marriage equality for their citizens, resulting in lawsuits for and against same-sex marriage.

The argument can be made that the 13 state constitutional amendments passed in 2004 barring same-sex marriage were the result of gains in Massachusetts, or one can be of the opinion that those amendments were simply efforts by right-wing politicos to secure a second term in office for George W. Bush.

However, marriage is now a reality for same-sex couples in Massachusetts, which began allowing them on May 17.

Conservative politicians in the state are trying to amend the state constitution. A proposed amendment banning same-sex marriage but instituting civil unions passed 105-92 in a March 29 joint session of the legislature. It must be passed again before it goes to voters, no earlier than 2006.

A petition drive is likely, since anti-gay leaders in Massachusetts vehemently object to civil unions as well.

�In the event the legislature either fails to act or passes a proposed amendment that includes civil unions, that is incrementalism, and I just can�t agree with that,� said Rev. Michael Carl. �We will wait to see what the legislature does, and what [Gov. Mitt] Romney does. If the governor doesn�t act . . . then I will go ahead with my petition.�

Carl said in early December that he and his allies are preparing for the upcoming legislative session.

Another stumbling block for same-sex couples in Massachusetts is a 1913 law originally passed to prevent interracial couples from marrying. The law was only passed in five states: Massachusetts, Vermont, Illinois, Wisconsin and Louisiana, which has since repealed the measure.

The law, which bars clerks from issuing licenses to out-of-state couples if their marriage would not be valid in their home state, lay unenforced for decades before being dredged up by Romney, who is opposed to same-sex marriage.

A suit was filed to strike the law, as well as two bills, neither of which passed the legislature in 2004.

Thousands marry in San Francisco

One of the biggest stories of the year occurred on the other coast, spawning action in four states.

After listening to President George W. Bush back a constitutional amendment banning gay marriage in his State of the Union address, San Francisco Mayor Gavin Newsom instructed county officials to issue marriage licenses to same-sex couples. San Francisco has a joint city/county government, allowing the executive to control county activities like marriage licenses.

�As a lifelong defender of civil rights, due process and equal protection for all, I do not personally support policies that give lesser legal rights and responsibilities to committed same-sex couples than those provided to heterosexual couples,� Newsom said.

Gov. Arnold Schwarzenegger pushed California attorney general Bill Lockyer, a likely Democratic contender for governor in the next election, to move faster to stop San Francisco, drawing criticism from his potential opponent.

�I sort of resent it when Arnold plays Conan the Barbarian for the right wing ad directs me to do something,� he said. �He doesn�t have the authority to do that.�

Newsom�s order took effect on February 17, and the religious right quickly mobilized to stop him, filing two suits within days. The filings contended that Newsom�s order violated Proposition 22, the 2000 voter-approved initiative barring same-sex marriage. Newsom and his allies, however, contend that Prop. 22 violates the California constitution�s guarantees of equal rights and due process.

The cases were fast-tracked to the state Supreme Court, which heard arguments in December. A ruling on the constitutionality of the state�s ban on same-sex marriages is expected by the middle of April.

Other towns follow suit

Newsom�s actions inspired Jason West, the mayor of New Paltz, New York. On February 27, he married 25 same-sex couples, and a 500-couple waiting list quickly formed.

The couples did not have marriage licenses, as the state�s Department of Health has ordered county clerks not to issue them to same-sex couples. While New York law makes it a misdemeanor for an official to marry a couple without a marriage license, it does not specify that the marriage is not valid. New York law also does not explicitly bar same-sex marriage.

West was charged under the statute on marrying without a license, each count carrying a possible $25-$500 fine and the suspension of his ability to perform marriages.

Two Unitarian Universalist ministers were also charged on March 15 when they took over for West. However, because they were not officials sworn to uphold the laws and constitution of the state, the fate of their prosecution was unclear.

�A minister who has no authority to make a marriage legally valid, how can you say they�ve broken the law?� asked Barbara Cox, a law professor from California.

�The Constitution�s promise of religious freedom, and the doctrine of �church autonomy� should permit clergy to officiate at religious ceremonies without state interference,� said Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism.

Another individual spurred by Newsom�s act of justice-inspired defiance was Sandoval County, N.M., Clerk Victoria Dunlap, who in February issued licenses to 66 same-sex couples. New Mexico Attorney General Patricia Madrid ordered her to stop and declared the already-issued licenses invalid. But that state�s law does not specifically bar same-sex marriage.

�The legislature is not willing to meet and define it or do anything about it,� Dunlap said. �If I could see there was deliberation or anything going on, this wouldn�t be necessary. I imagine the answer would still be in the courts.�

On March 3, Multnomah County, Oregon, which contains the city of Portland, began issuing licenses to same-sex couples.

Two weeks later, Benton County commissioners voted to follow Multnomah�s lead. However, Oregon attorney general Hardy Myers threatened to sue the county if they began issuing licenses, so the commissioners instead voted to stop issuing any marriage licenses, whether to same-sex or opposite-sex couples.

A handful of suits regarding the legality of same-sex marriage were filed, but Oregon was one of 11 states that passed a constitutional amendment in the November elections, so those suits are being shifted from marriage to civil unions.

Asbury Park, New Jersey, deputy mayor James Bruno also brought his city into the controversy.

The Social Security Administration was refusing to accept marriage licenses for any couples from the affected areas during the periods marriages were being performed, meaning an unknown number of people could not take their spouse�s name on SSA records, including getting new Social Security cards.

The administration backed off that decision shortly before Christmas for New Paltz and Multnomah County, although the ability of newlyweds to use marriage licenses from Sandoval County, New Mexico and Asbury Park, New Jersey, was still being denied.

Most of Canada has marriage

North of the border, however, things were moving much more quickly, and in a more LGBT-affirmative direction.

Qu�bec�s highest court on March 19 upheld a lower court ruling that barring same-sex couples from marriage was a violation of the protections in the Charter of the Rights and Freedoms, the Canadian equivalent of the Bill of Rights.

Same-sex marriage had already been mandated by courts in Qu�bec, Ontario and British Columbia. The federal government under former Prime Minister Jean Chr�tien decided not to appeal the decisions to the Supreme Court of Canada, instead asking for the court�s opinion of draft legislation to legalize same-sex marriage across the nation.

A coalition of religious groups appealed the Qu�bec decision, intervening in place of the government, and were handed a stinging defeat by the province�s high court.

Prime Minister Paul Martin�s government, as well as organizations in favor of and opposed to same-sex marriage, testified before the Supreme Court of Canada on the draft legislation, before the court said in December that the bill passed constitutional muster.

In the last three months, five other Canadian provinces and territories had court decisions ruling that same-sex marriage must be legal. Eighty-seven percent of the Canadian population lives in these locations, which also include Saskatchewan, Nova Scotia, Manitoba, the Yukon, and the province of Newfoundland and Labrador, the most recent addition to the list.

The bill for full marriage nationwide in Canada is now before Parliament with passage expected this winter.