NEARLY 5,000 same-sex couples have been issued licenses to marry in Massachusetts since May 17, 2004, a development that has unleashed waves of political backlash as leaders have tried to undermine the Supreme Judicial Court’s decision in Goodridge. But same-sex marriage is a reality; it’s here to stay and it will eventually become the law of the land. Safeguarding same-sex marriage in Massachusetts and building on our breakthrough here is an urgent project for the LGBT political movement, despite the devastating 2004 elections. There is no way out of this political morass but through it. Having won the right to marry in one state, we must hold it and expand upon it, even while facing a national majority that opposes gay marriage.
One strident and powerful opponent of marriage equality is Massachusetts Governor Mitt Romney, who, harboring national ambitions and doubtless cursing his bad luck to find himself presiding over the Gay Marriage State, insists that only qualified couples who can claim residency in the Commonwealth may marry here. He has temporarily managed to quarantine gay marriage by trotting out a shameful statute that’s a throwback to the days when white supremacists decreed that persons of different races could not be legally married. The infamous 1913 anti-miscegenation law forbids otherwise qualified couples from fleeing their home state’s repressive marriage laws to get hitched in Massachusetts, where mixed marriages were allowed. But it’s destined to clang into the dustbin of history. Given the Massachusetts Supreme Judicial Court’s affirmation of equal treatment in the application of marriage laws, it seems unlikely that the 1913 reverse evasion law can stand the test of constitutionality. But even if the Court is reluctant to take up another hot marriage issue right away, there will be a concerted legislative attack on the law. One way or the other, its days are numbered. For the moment, same-sex couples living in other states are not free to marry in Massachusetts, unlike heterosexual couples, who may choose to be married in any state, confident that their marriages are fully portable and recognized anywhere in the U.S. and, for that matter, the world. By pursuing the quarantine strategy, Governor Romney has narrowed the meaning and power of our marriage victory. Much like Vermont, the only state thus far to grant civil unions, Massachusetts stands very much alone in granting marriage licenses to same-sex couples. As of this writing, only the most tentative official gestures of legal recognition have come from a few other states, as seen in the first and yet unresolved instance of a married Massachusetts same-sex couple seeking employee benefits from the school system that employs one partner in Rhode Island. But even as myriad aspects of law and public policy remain to be worked out, the legal recognition of our relationships stands as one of the most significant breakthroughs for the GLBT political movement. Despite the outcome of the 2004 elections, marriage equality is a breakthrough that will steadily expand in states around the U.S., but each advance will face a well-funded and determined resistance. The movement to stop gay marriage is led by a coalition of anti-gay, right-wing organizations that are for the most part religiously based. In Massachusetts, the effort to deny equal marriage rights was led by the “Coalition for Marriage,” which is comprised of fifteen local, state, and national organizations with combined operating revenues of over $168 million. The largest and wealthiest of these groups is Focus on the Family, but others include the Alliance Defense Fund, Concerned Women for America, the Family Research Council, the Black Ministerial Alliance of Greater Boston, the Massachusetts Family Institute and the Massachusetts State Council, and the Knights of Columbus. While the anti-gay coalitions in other states vary somewhat, the Massachusetts line-up typifies the players and organizations comprising what can be loosely called “Anti-Gay, Inc.” Not included in the Massachusetts Coalition for Marriage are the four Roman Catholic dioceses in the state that spent another million dollars to fund direct mail and distribution of anti-gay videotapes to parish priests in the spring of 2004. These were designed to motivate church members to urge legislators to support the anti-gay constitutional amendment. These efforts contributed to the passage of an anti-gay constitutional amendment on March 29, 2004, but the vote was close at 105 to 92. The amendment comes before the body again in 2005; if passed a second time, it will be voted on by the state’s voters in November 2006. THE CURRENT anti-gay marriage backlash can be traced to the mid-1990’s. Following the Hawaii Supreme Court’s ruling that the state’s marriage laws amounted to unconstitutional discrimination, Hawaii’s voters amended their constitution to slam shut the door on marriage equality there. Legislatures in over a dozen states quickly passed laws banning recognition of same-sex marriages, the so-called Defense of Marriage Acts (DOMAs). Since then, a total of 38 states have enacted DOMA laws. In 1996, President Bill Clinton felt the testicular political pressures of being too soft on gay rights, and so penned his signature to a federal version of the DOMA that says no state is required to recognize same-sex marriages performed in another state and that, under federal law, marriage is defined as a bond between one man and one woman. Anti-gay forces now hotly pursue state constitutional amendments in dozens of other states, as well as a federal version, that would ban any recognition of same-sex marriage and in some cases any kind of legal recognition of same-sex relationships, including domestic partnership and civil union. Underlying this rush to amend is the fear that a state’s existing constitution really guarantees equality for everyone, so the possibility of a court ruling favoring same-sex marriage has to be preemptively ruled out. As of this date, voters in seventeen states have passed such an amendment, consigning their queer neighbors, co-workers, and family members to indefinite second-class status. Eleven of these anti-gay amendments passed on a single day, November 2, 2004, blaring an ugly and discordant note to end the year in which gay marriage became legal in Massachusetts. Also on that day, the incumbent president was returned to office, in some small part on the strength of energized voters responding to his call to defend traditional marriage from the social-fabric-shredding homos and their queer-loving supporters. The post-election discussion about the impact of the anti-gay marriage vote has waxed and waned; early claims and blames that gay marriage had defeated John Kerry have been largely discredited by analysts both gay and straight. The National Gay and Lesbian Task Force Policy Institute, as well as other post-election commentators, pointed out that majority opposition to recognition of same-sex couples was mostly limited to core supporters of the Republican Party who probably would not vote Democratic under any conditions. John Kerry won two of the three battleground states in which there were ballot measures on gay marriage, Oregon and Michigan. And even in Ohio, where Kerry lost the counted votes, post-election data point to Iraq and the war on terrorism, not gay marriage, as the decisive issues. A national Gallup post-election survey showed that Iraq, terrorism, and Bush’s job performance were key reasons why voters returned him to office, not “moral values” or same-sex marriage. To be sure, plenty of voters oppose gay marriage, but it was not this issue or even “moral values” (whatever they are) that determined how most people voted in the presidential race. Nonetheless, Anti-Gay, Inc. and Republican leaders have returned again and again to the earliest media spin on the faux moral values / gay marriage mandate in order to promote a social agenda that includes banning same-sex marriage, restricting a woman’s right to abortion, and promoting abstinence-only sex education, among other right-wing social policy initiatives. According to Michael Crowley, writing just after the election in The New Republic, “[James Dobson of Focus on the Family is] already leveraging his new power. When a thank-you call came from the White House, Dobson issued the staffer a blunt warning that Bush ‘needs to be more aggressive’ about pressing the religious Right’s pro-life, anti-gay rights agenda, or it would ‘pay a price in four years.’ … Dobson is now a Republican kingmaker.” SO, with a powerfully positioned and well-funded anti-gay movement aligned against us, how can we possibly hope to preserve Goodridge and marriage equality in Massachusetts, much less expand the victory to other states? The first answer is that we will continue our work in Massachusetts to strengthen support for Goodridge by defeating the anti-gay constitutional amendment and by making the case to neighbors and political leaders that same-sex marriage is good for our families and good for the Commonwealth. We must hold our ground in Massachusetts so that a second state, and then a third and a fourth, will also issue licenses to marry to same-sex couples, ultimately heightening the legal contradictions and conflicts created when people who are considered next-of-kin in some states are strangers under the law in others. Our movement’s work will focus in the states because, despite the federal DOMA, it is state governments that set laws and policies for marriage and family matters. More to the point, we can look to only a limited number of states that provide the best chance to produce the next marriage breakthrough. As noted, seventeen states have already amended their constitutions to prevent their legislatures and courts from recognizing same-sex marriage rights, while 38 states have enacted laws that ban recognition of same-sex marriage. The map leaves only ten states that have yet to foreclose on gay marriage rights (with Massachusetts and Vermont in the vanguard on the issue). In addition to these ten, any roster of states with the best chance for a breakthrough has to include California, where voters passed a state DOMA law but legislators have enacted a statewide domestic partnership law that rivals Vermont’s civil union law in scope and force. California was also the site of some 4,000 same-sex marriages last spring, now invalidated by the courts but indelibly imprinted on the minds of Californians. This group of best-chance states also includes Oregon, where voters passed an anti-gay marriage constitutional amendment on Nov. 2, but still must determine the legality of the 3,000-plus marriages that were performed last spring. Connecticut and California are both involved in legal and legislative processes to grant marriage rights; New Jersey and Washington are home to promising lawsuits challenging their discriminatory marriage practices; Rhode Island has been moving steadily and incrementally toward marriage in its legislature. The marriages in New Paltz, New York, last spring provide a legal springboard for action in that state. When a second state joins the battle, the two gay marriage states (Massachusetts and another) will then pose important legal and policy questions, both to each other and to other states. For example, will the two states reciprocally recognize and validate, offer “full faith and credit,” to each other’s same-sex marriages, assuming couples meet other qualifications? If the second state, unlike Massachusetts, doesn’t restrict same-sex marriages to legal residents, how will marriages performed for residents of other non-marriage states be treated in their home states? Will private businesses that employ persons in legal same-sex marriages extend full employee benefits, even if not all of their business locations are in gay marriage states? And so on. When the third and fourth states become gay marriage states, the questions will multiply and become more complex, while the number of people and families affected will increase. In all probability, the pressure to resolve these complexities will eventually require action by the U.S. Supreme Court. While the same-sex marriage pot simmers towards a full political and legal boil in a small number of states, GLBT organizing work must proceed in all the other states. The state movements around the U.S. vary greatly in size, capacity, and accomplishments. But in almost every state, there are organizers and leaders who seek to improve life for gay and lesbian residents. In some states, significant progress will be made on the enactment of non-discrimination protections, recognition of bias crimes against gay people, and the creation of non-hostile public school environments long before progress is made on relationship recognition. In other states, domestic partner laws for public employees will be possible. GLBT people can be active in our states and communities and build useful relationships with decision makers by working on a range of issues, not only marriage and not just family matters. The marriage miracle in Massachusetts was no miracle; it was built on thirty years of vigorous community-building, organizing, and political advocacy. Organizers in other states must keep working on what matters most to their communities. Marriage equality may be the ultimate civil right for same-sexers, and marriage equality may finally subvert heterosexual supremacy as nothing else has. But securing marriage equality and undermining heterosexual supremacy will require years and probably decades of gritty and unglamorous political work at the state level, where our movement has historically been weakest. It is time to stop starving our state and local organizations. Supporting state and local GLBT political advocacy isn’t a luxury; it’s a simple necessity, made more urgent by the right-wing sweep of all three branches of the federal government. Sue Hyde is the director of the Creating Change Conference for the National Gay and Lesbian Task Force.
