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 2)

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 mar riage 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-sex­only 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 orienta tion. 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 constitu tions 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 mar riage 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 devel oped 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 obligationsjoint bank accounts or insurance policies, wills, public and private acceptance of the couple as a coupleto 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, un heard 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.)

No one believes domestic partnership is a separate-but-equal form of marriageit is clearly legally inferior to marriage. But the differences that make domestic partnership subordinate also serve as a political strength. Hawaii is a special case because it's the first time domestic partnership is actually available as the compromise position. Domestic partnership, which has been proposed but not accepted in several states, has always been viewed as too radical. Hawaii, though, has to consider an even more radical concept, and the choice between same-sex marriage and domestic partnership makes the latter much easier to accept. In fact, one reason the Hawaii trial was set for July 1996 is that Gov. Ben Cayetano appointed a commission to study the legal viability of domestic partnership. Some hope that if the Hawaii legislature recognizes same-sex couples through domestic partnership, the issue of same-sex marriage will be defused.

While domestic partnership may present itself as a workable political compromise, it's not clear whether it would pass a judicial compelling interest test. The decision in Baehr v. Lewin split along a 2­1­2 vote, and there have been personnel changes since the ruling. Given Baehr, the court can essentially rule one of two ways. First, it can rule that Hawaii's exclusion of same-sex marriage is indeed a violation of the Equal Protection Clause, but a justified one (similar logic was used in the Bakke decision with respect to affirmative action). Second, it can say anything short of allowing same-sex mar riage is illegal.

Whatever the judicial shakeout, it's undeniable that domestic partnership would grant same-sex couples access to a variety of benefits from which they are currently excluded. The plaintiffs' brief in Baehr v. Lewin, for example, listed about 65 different benefits under state law that the plaintiffs were being denied, from the right to sue for a partner's wrongful death to lower hunting license fees. A state-recognized domestic partnership statute could grant every one of those benefits.

In other words, Hawaii's recognition of domestic partnership would be a classic example of federalism, of the much-vaunted "laboratory of the states." Because it need not necessarily be recog nized by any other state and because it does not provide any automatic challenge to existing federal laws, domestic partnership would not compel another national debate over gay rights in a context that's an almost sure loser for lesbians and gay men. If Hawaii wants to recognize relationships that South Carolina wouldn't touch with a 10-foot pole, why should South Carolina or Washington, D.C., care?

Domestic partnership, argues Coleman, can move the country forward incrementally, avoiding all the drama. It is a very strong possibility in Hawaii right now, if only because legislators are look ing for any route that will avoid a constitutional showdown over marriage.

An additional advantage of a domestic partnership statute, says Coleman, is not so obvious: Court decisions protecting rights are, or ought to be, a last resort. Constitutional protection of rights, whether state or federal, is never entirely independent of political winds. This country is not without examples of court-recognized rights that set politics into turmoil, and whatever else we can expect from the 1996 elections, candidates stumping in favor of gay marriages are unlikely.

In that atmosphere, a legislative determination that same-sex couples are entitled to certain benefits is a political victory of incredible magnitude precisely because it comes from the majoritarian legislature rather than from the minority-protecting courts. And it is momentous because it moves the debate beyond the recognition of individual lesbians and gay menwhose rights are legally protected as individuals in a number of states to focus on their relationships, and does so through the democratic process. Those are powerful factors to consider.

In contrast, Evan Wolfson's trust in the power of a strong public education campaign about same-sex marriage requires a commitment from a widely diverse gay community that it is not always able to muster. Suspicion about same-sex marriage is not in short supply, particularly among the most left-leaning lesbians, who criticize all marriage as a patriarchal nightmare, and among the usual band of libertine suspects to whom settling down is a fate worse than death. Meanwhile, some high-profile gays, such as author Bruce Bawer, The New Republic 's Andrew Sullivan, and the Cato Institute's David Boaz have argued that legal recognition of same-sex relationships is a conservative proposition, one that reinforces traditional American values. Anong some gay activists, that is viewed as selling out.

And, so far at least, the public education campaign about gay marriage has suffered from solip sism. In an August 28 press release on the Internet's Same-Sex Marriage homepage, Lambda touted the success of its marriage resolution, which says that states should not discriminate against same-sex couples who want to get married. But of the 23 groups who had signed on, more than half had "gay" and/or "lesbian" in the title; the rest were either well-known gay rights organizations such as Lambda, the Human Rights Campaign Fund, Dignity, and the Log Cabin Republicans, or else staunch liberal groups such as NOW and the ACLU.

Simply put, if an education campaign is going to do any good at all, it's going to have to educate people who aren't already up to speed. It's easier to teach algebra to a physics professor than to a seventh grader. Getting a group of lesbian and gay Latinos to sign on to the marriage resolution is not going to do much in the way of persuading heterosexuals in Cleveland that same-sex marriage is a good idea.

To be effective, any public education campaign will have to do more than reiterate Bill Clinton's advice to lesbians and gay men during the debate over the military. Get out there and tell your stories, he said. Let people see what you've been going through, feel your pain. That'll convince 'em. But the failure of that strategy during the military debate had nothing to do with a lack of good personal stories. From Perry Watkins to Grethe Cammermeyer to Joe Steffan, the gay community brought out its best and its brightest to illustrate the case. Randy Shilts wrote a whole book of the most compelling stories imaginable, and the result was "don't ask, don't tell."

Such a strategy seriously misconstrues the nature of education. Education -- at least in a political context -- isn't something you give to people, it's an argument you make -- and it involves very hard work. Stories, even the best personal ones, don't do the trick. You can't just entertain people -- you have to change their minds.

Wolfson is adamant that this is not a fight he has chosen -- it is one that had chosen him, and all he can do is prepare for it as best he can. But Coleman saysy there are ways to avoid a national debate over same-sex marriage, and good reasons to wait, even if only for a year or two. Domestic partnership is not the kind of "compromise" that don't-ask-don't-tell is. It provides concrete benefits (about five dozen of them in Hawaii) to committed couples who are entitled to them, and it sidesteps a host of extremely difficult problems. And a domestic partnership law in Hawaii in no way forecloses the possibility of same-sex marriage -- after continued debate. That debate is an inevitable as it is necessary.

Coleman figures that public support for gay marriage is a good 10 years off. Regardless of the accuracy of this estimate, he appears to be on the mark in believing that recognizing domestic partnerships can keep the political temperature down for a while and give heterosexuals of good will a chance to get used to the idea of lesbians and gay men, not just as individuals, but as couples.

The question of what to do about Hawaii lands the gay community once again square in the middle of a dilemma that's as old as politics itself: the conflict between principles and pragmatism. As with most other qyestions, the positions are not mutually exclusive. Wolfson's principle is not utterly rash. Coleman's pragmatism doesn't lack principle. But with a trial pending, this is the first time when some resolution of the legal rights of same-sex couples unavoidable.