Gay Rites

Hawaii may soon become the first state to recognize same-sex marriages. But some gay leaders suggest a go-slow policy of "domestic partnerships" might be better.

David Link from the January 1996 issue

(Page 2 of 3)

Jon Davidson of the Southern California ACLU argues forcefully that the bottom-line reason for treating marriage as an exclusively heterosexual institution is usually found to be reproduction. Indeed, after the Supreme Court ruled in Baehr v. Lewin, the Hawaii legislature passed a non-binding resolution to reaffirm that its current law is "intended to foster and protect the propagation of the human race through male-female marriages." But there is no fertility requirement for getting a marriage license, in Hawaii or anywhere else; states do not revoke the marriage licenses of heterosexual couples who do not, will not, or cannot reproduce. Nor is it true that homosexual couples can't qualify as reproducers, as legions of lesbian and gay parents can attest.

Thus, the best the state could argue is that Hawaii's "compelling" interest in keeping marriage an opposite-sex­-only proposition is promoting the appearance of potential reproduction irrespective of actual reproduction. According to the bill, for example, marriage in Hawaii is only for those couples whose "genetic makeup suggest [sic] the possibility of offspring." Suggesting the possibility of offspring through genetic makeup seems to fall short of the target of fostering the propagation of the human race. And in a world that no one seriously argues is underpopulated, Hawaii's decision to take responsibility for the propagation of the entire planet's race, while ambitious, may not amount to an interest that can fairly be described as "compelling." After the state Supreme Court's divided but savvy decision in Baehr, it is highly unlikely such thin reasoning would survive review.

But it's still possible for the gay community to win in Hawaii and lose in the rest of the nation. Indeed, even a court victory in Hawaii could ultimately be short-lived. A poll of Hawaii residents taken several months after Baehr was decided showed that 67 percent actively opposed same-sex marriage. Such feelings are typical of the country as whole. A national Newsweek survey from last year found that 62 percent of adults oppose same-sex marriage, even though polls consistently show most Americans believe lesbians and gays should not suffer discrimination based on sexual orientation. If same-sex marriage ripens into an actuality, prompting the inevitable national furor, there is a good possibility that there would be sufficient votes in Hawaii and elsewhere to amend state constitutions outright and to take other action that could cut back on even existing protections against sexual-orientation discrimination.

In Los Angeles, Evan Wolfson recognized that possibility. He notes, though, that there is a lot to be said for taking the principled position, even if it's a loser. Nothing galvanizes lesbians and gay men like a high-profile slap in the face. The Supreme Court's ill-reasoned and much-vilified decision upholding anti-sodomy laws in Bowers v. Hardwick remains, nearly a decade after its release, one of the principal rallying points for lesbians and gay men across the country.

Perhaps, then, the best lesbians and gay men can hope for is a brief interval of same-sex marriage in Hawaii and the possibility of limited recognition in some other states. This may come at the cost of a national political debate that ought to make gays in the military look tame but will nonethe less raise everyone's consciousness, and some serious and openly anti-gay legislative efforts.

Instead of taking on such a potentially damaging crusade, suggests Los Angeles lawyer Thomas F. Coleman, gays and lesbians should pursue recognition of domestic partnerships in Hawaii, rather than full-blown same-sex marriage. Coleman is no enemy of same-sex couples. Indeed, he has spent over two decades working to secure the rights of unmarried partners, gay and straight alike. He developed and taught one of the first courses in the country (in the late '80s, at the University of Southern California Law Center) that explored the theoretical and legal basis for recognizing domestic partners.

But Coleman has always maintained a core pragmatism about the politics surrounding same-sex marriage. He believes that you have to have support at the grassroots level before a court decision will do you any good. He is fond of noting that, "You don't build the penthouse until you've constructed the first 19 floors." To Coleman, marriage is the penthouse issue in gay rights that will sit atop a building that isn't yet completed.

As a legal concept, domestic partnership is designed to address the gray area occupied by couples living together with mutual, permanent commitments to one another who, for whatever reasons (including the legal inability to get married), do not marry but nevertheless believe their relationships ought to be entitled to recognition, ranging from joint library card privileges and gym memberships to tax and health insurance advantages.

The dilemma facing domestic partners in general is particularly acute for homosexual couples. If marriage is defined to include only two people of opposite sex, lesbians and gay men must remain legally "single" for their whole life, even if they are in a relationship that is otherwise identical to a heterosexual marriage. Same-sex couples who have settled into a traditional domestic life may hold themselves out as partners to friends and family, take themselves off the dating merry-go-round, raise children together, go through religious commitment ceremonies, or exhibit any of a number of other characteristics that we associate with stable relationships. Legal recognition of the couple's commit ment is denied to them only because of sexual orientation.

Courts that have denied legal benefits to same-sex (and even some opposite sex) couples do so primarily based on an evidentiary concern. No matter how the couple feels about their relationship subjectively, how is a court to know, short of a legal marriage license, that the couple is truly like a marital community? As two legally single people, the couple could be nothing more than good friends, or roommates.

There are legally recognized ways to tell the difference between good friends and domestic partners, however. New York's highest court, for example, ruled that there can be plenty of objective evidence of an unmarried couple's mutual obligations—joint bank accounts or insurance policies, wills, public and private acceptance of the couple as a couple—to support certain kinds of treatment equal to that accorded married couples. And many private employers with money on the line have managed to find satisfactory ways for couples to demonstrate they're more than just good friends.

Coleman stresses that as the magnitude of the benefit increases, the assurance that the couple is truly committed must also increase. So, for example, permission from the library for two people to use the same card should require less formal evidence of commitment than an insurer might want in order to grant the family discount for health coverage. When there are high legal and economic consequences to recognition of the couple, Coleman requires that they sign a legally binding domestic partnership agreement, which, depending on its wording, may impose on the couple the same kinds of legal responsibilities to one another that marriage does, vis à vis such things as third-party creditors when one person takes on debt, or mutual obligations of support between the partners. And the couple must be fully aware that the agreement imposes such binding obligations.

At the January meeting in Los Angeles, Coleman laid out his case for holding off on legal challenges to same-sex marriage in order to pursue domestic partnership in the Hawaii legislature. While some lesbian and gay leaders are coming to view marriage as the core issue of the movement right now, he notes that most Americans don't quite comprehend why this is a problem, and some religious groups have gone off the deep end. The 700 Club, for instance, decries the oncoming "Hawaiian Tidal Wave" as "powerful enough to reconfigure the nation's social and political landscape."

State recognition of domestic partnership, says Coleman, would solve many of the problems while sidestepping the inevitable fracas surrounding same-sex marriage. Domestic partnership, unheard of only two decades ago, has taken unimaginable strides in acceptance. Over the past 15 years, domestic partnership has provided the source for
literally thousands of private businesses (including industry giants such as Apple Computer, Coors Brewing, Walt Disney Co., and Levi-Strauss), local governments, and other institutions across the country to recognize unmarried couples for purposes of a wide array of benefits and privileges.

As important, the Full Faith and Credit Clause issues raised by a Hawaii marriage license would be foreclosed for domestic partnerships entered into under Hawaii law. Nor would federal rights such as joint income tax returns and immigration lawsnecessarily be affected by a state-level domestic partnership law. (Congress could, of course,
accept domestic partnerships under federal law, but the chances are virtually nil right now.)

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