On January 30, 1995, Evan Wolfson, a lawyer for the Lambda Legal Defense and Education Fund, put the question to a room full of leaders of various grassroots lesbian and gay organizations in Los Angeles: What do we do about Hawaii?
Most people don't view Hawaii as any sort of problem, but that's about to change. The issue that has been lurking at the fringes of American public policy debate since the inception of the gay rights movement is now ready to take furious bloom, with its roots in the tropical paradise. Like it or not, Wolfson said, Hawaii is about to launch the country into a raging controversy over same-sex marriage.
The only thing homosexual leaders can do, he told the crowd, is prepare for the pandemonium by getting all their arguments in order. By devising a campaign of public information and reasoned conviction, he suggested, lesbians and gay men can avoid the chaos they confronted when Bill Clinton pressed the issue of gays in the military before gay leaders had a chance to get their ducks in a row.
The stage is certainly set for this debate. In Baehr v. Lewin, the Hawaii Supreme Court ruled that under the state constitution, it appeared that any denial of the right of same-sex couples to marry one another could not stand. Because the decision is not based on any federal constitutional rights, the Hawaii Supreme Court will have the final word in this case, with no appeal to or review by the U.S. Supreme Court possible. The court ultimately ordered a trial on the question of whether the state could show a compelling interest that would permit opposite-sex couples to marry while denying that right to same-sex couples.
Under well-settled law, a "compelling interest" must be more than just a good reason—it is the highest level of court scrutiny laws are subject to, and the most difficult for them to survive. That trial is now set for July 1996, and Wolfson is convinced, with good reason, that legal precedent indicates the state will lose. Dan Foley, his co-counsel in Hawaii, is equally certain of a trial court victory. Their efforts could make Hawaii the first state in the country to permit same-sex marriage.
On the other hand, little more than a week before Wolfson addressed the packed room in Los Angeles, the District of Columbia Court of Appeals ruled the opposite way. In Dean v. District of Columbia, the federal court said that a D.C. opposite-sex-only marriage ordinance did not violate any of the statutory or constitutional rights a same-sex couple asserted. Neither the Hawaii decision nor the D.C. one was easy: Each divided up three ways, with judges falling all over the ideological map. The D.C. decision ran to 57 pages, the Hawaii decision to just under 30.
Other cases that raise similar questions are already moving through the system nationally. The most compelling is in Georgia, where Robin Shahar, a deputy district attorney in Atlanta, was fired from her job after she had a religious ceremony blessing her same-sex union. A trial court ruled that under Georgia law that was sufficient evidence to fire her, and the case is currently on appeal.
Shahar's case is important because it illustrates how profoundly marriage intertwines legal and religious issues. Even conservative Christians might recognize in Shahar's lawsuit a straightforward punishment by the state for engaging in an exercise of religion. The ceremony she and her partner engaged in was purely religious, and did not involve the sort of civil marriage that is at issue in Hawaii and the District of Columbia. If you can get fired for having a marriage ceremony in your own church which your government finds distasteful, what other kinds of religious ceremonies might states want to punish people for?
No one really believes for a moment, though, that the Christian Coalition would rush to defend the religious rights of same-sex couples. Indeed, just the opposite is true. Shahar's case seems to have stymied most conservative leaders, while the Hawaii situation has put the religious right into an uproar, with the predictable fundraising appeals already in the mail. Pat Robertson's 700 Club is distributing a "fact sheet" which alerts its members that what's going on in Hawaii "forewarns the inevitable downfall of America."
Lesbians and gay men view Hawaii somewhat differently. If the plaintiffs win there in July, trips to Honolulu for gay marriages will become as much the rage as trips to Reno used to be for straight divorces. And the impact won't be limited to the Aloha state, either. The U.S. Constitution's Full Faith and Credit Clause requires states to recognize the judicial acts and proceedings of fellow states, and marriage has long been one of the core proceedings that is entitled to interjurisdictional acceptance. So a single state that recognizes same-sex marriages opens up the debate across the country. (Under certain limited and very rare circumstances, though, a state may refuse to recognize a marriage legal in another state. The Hawaii situation has prompted preemptive legislative efforts in Utah, Alaska, and South Dakota to deny legal recognition to out-of-state same-sex marriages with some successes.)
There's more: Nearly a thousand federal statutes use the term spouse or marriage, usually deferring to state law on how those terms are defined. Unless those laws are changed, the federal government might find itself recognizing homosexual marriages and having to answer to the electorate. Few Democrats and fewer Republicans could defend same-sex marriage without raising electoral eyebrows.
In one sense, the furor these cases will arouse is another manifestation of a debate that's been around for years. Fears of same-sex marriage were part of what made the national debate over the ERA so absurdly colorful two decades ago. Yet prior to 1994, only four reported court cases dealt head-on with same-sex marriage—three in the early '70s and one in 1984.
All dismissed the marriage claims briefly, using language similar to this 1973 decision out of Kentucky: "[M]arriage has always been considered as a union of a man and a woman….It appears to us that appellants are prevented from marrying, not by the statutes of Kentucky or the refusal of the County Clerk… to issue them a license, but rather by their own incapability of entering into a marriage as that term is defined….In substance, the relationship proposed by the appellants does not authorize the issuance of a marriage license because what they propose is not a marriage."
The Hawaii Supreme Court found such arguments circular. Its plurality noted that the question comes down to competing definitions of marriage: Is marriage defined as the union of two persons, or is it the union of two persons of opposite sexes? If you think the second definition is the proper one, same-sex couples are making a frivolous claim because they are defying a definition as inalterable as the law of gravity. If you choose the first definition, however, same-sex couples may or may not be entitled to marry one another, depending on what you view as the underlying purposes of civil marriage.
Same-sex couples contend that among the most important purposes of marriage is encouragement of the mutual support, care, and affection that publicly committed partners make to one another, and that same-sex couples' commitments are as important to social stability and order as the commitments of opposite-sex couples.
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 a 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 nonetheless 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 commitment 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 laws–necessarily 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 marriage—it 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 2–1–2 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 marriage 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 recognized 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 looking 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 men–whose 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 solipsism. 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 says 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 questions, 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 is unavoidable.
David Link (firstname.lastname@example.org) is an attorney and writer in Los Angeles.
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