Yes and No in Maine

The gay-rights bill (1196) became law in Maine on April Fools Day. It won't take effect until June 29. The Bangor News article on the signing said it was happy event. However, the anti forces will try to overturn it. To wit:

Opponents have until June 28 to submit 50,519 signatures to the Secretary of State's Office in order to force a November 2005 referendum. Opponents hope to collect 70,000 signatures and $2 million to run the campaign. If they can force a referendum, the law won't take effect unless voters approve it.

Maine voters have twice rejected gay-rights legislation. The last time, the defeat was extremely narrow, and the new law stated specifically that it did not include nor sanction same-sex marriage. It doesn't look good for the naysayers.

Nutmeg Limbo

In Connecticut, a lesbian couple married in Massachusetts cannot divorce at home, according to Hartford Superior Court Judge Linda Pearce Prestley. At last, we have an example of the confusion possible with same-sex marriages. Lackaday and however, this is caused not by the type of marriage per se, but the gap in the full-faith-and-credit strictures.

In her 10-page decision issued March 18th and covered in the March 31st Connecticut Law Tribune, Prestley noted that the problems were:
· The women were Connecticut residents when they married in Massachusetts.
· Connecticut did not and does not recognize same-sex marriages.
· Massachusetts has a law that reads that marrrages illegal in the residents’ states cannot be solemnized in Massachusetts.

The short of it is that Prestly would not divorce them. That would amount to recognizing the marriage in Connecticut.

Meanwhile, Rhode Island, touching both other states, intends to recognize Massachusetts same-sex marriages as it would any other from the commonwealth. Legal is legal and full faith and credit means honoring the other states’ contracts.

More on Maine

The Portland Press-Herald detailed the reactions to Maine's new anti-discrimination law for homosexuals.

As background, a similar measure passed in 1993; then Governor John McKernan vetoed it. Then when one passed in 1997, Governor Angus King signed it. However, in 1998, led by the Michael Heath's Christian Civic League, a voter referendum got on the ballot in 2000. The law was overturned by a very narrow margin.

In the form of the Lewiston-based Maine Grassroots Coalition, Heath's folk will try again. They need 70,000 signatures and hope to draw on Catholics to help in the effort. Co-leader of the drive, Paul Madore, was quoted as, "It's going to be tough. There's no question about it."

The bill this time had broad bipartisan support.

According to the Bangor Daily News piece on the bill, the anti forces have only 90 days after the legislature adjourns this week to produce 50,519 valid signatures for this "people's veto" referendum. Heath told the paper he would announced today whether he'd give it a go.

The article also reports,"If LD 1196 becomes law, Maine will join 15 states, including the rest of New England, in protecting gays and lesbians from discrimination. About a dozen Maine communities, including Bangor, already have similar laws on the books.

"LD 1196 has an exception for religious organizations that do not receive public funds."

Put the ME in Amend

Warily eying nearby Massachusetts and New Hampshire with same-sex unions, Maine's legislature passed a gay civil-rights bill yesterday. On the other hand, it also made everyone aware this neither provided nor was any type of preparation for same-sex marriage. The bill protects citizens from discrimination based on sexual orientation.

After years of similar bills failing, this one earned passage apparently because of an amendment holding same-sex marriage at arm's length. The amendment states that the law could not "be construed to create, add, alter or abolish any right to marry that may exist under the Constitution of the United States, the Constitution of Maine or the laws of this State." Following the passage in his chamber, Senator Barry Hobbins, a Democrat from Saco, said, "This amendment will make sure that everyone know that there is no nexus between this civil rights bill and gay marriage." So there, he might have added, but didn't.

The vote was 25-10 in the Senate and 91-58 in the House.

Meanwhile, the anti crowd was pouting. The Christian Civic League of Maine had led fights against such legislation. That seems to be a small, ineffectual group run by a minister and his wife. It is in the no-special-right camp, a position of fading influence nationwide.

Massachusetts Tax Tricks

Same-sex couples who want the benefits of filing a joint state return have a lot to learn this year. They can find primers at the comonwealth department of revenue and at Bay Windows newspaper.

The tax department offers the captivatingly titled, Technical Information Release 04-17: Massachusetts Tax Issues Associated with Same-Sex Marriages. It gets right to the nits and grits of combining depedents and allowable unreimbursed business deductions.

The Bay Windows article Seeking tax advice has a few specifics, but is mostly conceptual. It has several sides to the question about whether a couple should try to file their federal form as married filing jointly.

New Terms Up North

The Ontario legislature hopped right into the same-sex marriage law changes. They must have ordered clerks to track down every suddenly old-fashioned term. Their Bill 171 patches hundreds of mentions over 43 pages. See it here.

New Terms in Massachusetts

The Massachusetts legislature seems to be in no hurry to fine-tune its marriage-related laws to adjust for same-sex couples. There actually aren'’t all that many, but Chapters 207, 208 and 209 have a lot of husband, widower, wife, widow and other gender-specific terms.

Many of these laws have neutral sections. For example, Chapter 207: Section 19: Notice of Intention of Marriage refers to “"Persons intending to be joined in marriage in the commonwealth.”"

Some require only a title change. For one, the text of Chapter 209: Section 38 refers to “parent.” However the title is "“Married Women Abandoned by Their Husbands, Etc."” Similarly, the whole chapter has the title “"Husband and Wife.”"

A few will cause a bit of head scratching, such as Chapter 207: Section 1: Marriage of Man to Certain Relatives:

No man shall marry his mother, grandmother, daughter, granddaughter, sister, stepmother, grandfather's wife, grandson's wife, wife's mother, wife's grandmother, wife's daughter, wife's granddaughter, brother's daughter, sister's daughter, father's sister or mother's sister.

There is a woman’'s section that follows. So, do the lawmakers combine them and repeal one or tweak two?

Still others may lead the legislature to edit them to gender neutrality just to avoid future issues. One is Chapter 207:Section 4:Polygamy.

A marriage contracted while either party thereto has a former wife or husband living, except as provided in section six and in chapter two hundred and eight, shall be void.

That is kind of neutral, even with the traditional role terms.

Oh, My, New Words!

The Boston Globe’s token reactionary conservative columnist, Jeff Jacoby, produced a probably unintentionally amusing piece on same-sex marriage law. The gist of it is that Massachusetts will soon follow Ontario in adjusting laws to replace terms like husband, widower, wife, and widow with gender-neutral words.

First, he belabored the obvious by saying he “ventured a prediction” that this would happen. Cause and effect, Jeff...this has happened from the earliest laws. Then he jumps to this not being just terminology tweaking. He writes:

The real target is the significance of marriage itself -- the idea, fundamental to human happiness and all successful societies, that the purpose of marriage is to bring men and women together for their mutual welfare and for the protection and well-being of any children they create or adopt. It is that deeply ingrained belief that the marriage radicals are determined to do away with. One purpose of the official marriage newspeak is to make such thoughts increasingly unthinkable.

He concludes with anticipated victimhoood:

This is just the start. The assault is not going to let up until the heteronormative deviants among us have been silenced. You think the marriage radicals have gone too far? You ain't seen nothin' yet.

One can only hope that he lives long enough to remember this prediction and write in a decade or two, “Well, maybe I was a bit extreme on that one.”

DoMA Tax Burden

One of this tax season’s angles that many media will cover is the additional onus on married same-sex couples. Because of the DoMA, the feds, including the IRS, don’'t dare recognize such marriages.

Meanwhile, in Massachusetts (and civil-union state Vermont), these couples can file their state tax forms together. To meet federal tax requirements, a married gay couple in Boston will have to create a phantom federal form as though they were married, a form they can'’t file. However, they need these figures to calculate portions of their Massachusetts taxes. Then, they fill out two federal tax forms for that portion.

Expect to see figures soon from couples and accountants about how much the DoMA penalizes these married couples. It is likely to be a big hit for those with investments.

By the bye, TurboTax is one tax package that has updated its state modules for Vermont and Massachusetts to accommodate their federal refusal to allow married filing by these couples.

Those couples can get tax tips and procedures from the state tax office and a few newspaper columns, such as this one.

St. Pat's Jokes

Yesterday, the very WASPy Massachusetts Governor Mitt Romney managed to get some same-sex marriage yucks at Boston's annual St. Patrick's Day politician's breakfast. The Boston Globe quoted him as:

Saying he is against gay marriage, Romney said that, as a Mormon, he believes ''marriage should be between a man and a woman. And a woman. And a woman."

Romney, a fierce critic of Chief Justice Margaret H. Marshall of the state Supreme Judicial Court -- who penned the gay marriage ruling in 2003 -- began his comments by saying, ''Let's take a few moments and give thanks to the supreme being who watches over us, guides us, gives us our commandments from on high. Thank you Margaret Marshall."

Baby Machines

Perhaps with Kramer'’s decision, the same-sex-marriage cons will see the ineffectiveness of the argument that marriage has to be between a man and woman because its main purpose is to ensure procreation. The logic has long been terribly flawed. It would seem to preclude from marriage 1) those who can’t have children (too old or sterile for some other reason), and 2) those who choose not to have children. It also ignores that a lesbian is as fertile to artificial or natural insemination as a straight woman.

Note: The above link opens a 27-page PDF (only 62KB) file. You need Adobe Acrobat or a compatible reader to view it.

Yet, this argument has come up repeatedly in recent court filings as well as in legislative debates. Maybe Kramer's clear rebuttal will remove this distraction from the more meaningful discussions.

He refers to Baker v. Baker (1859) 13 Cal.87, cited by cons. In that, the court let a man annul a marriage when he found his bride pregnant by another man. Here, Kramer, noted the decision was not based on her inability to bear the new husband’'s child. Rather, she had defrauded him into marriage by concealing her condition. Likewise, in Vileta v. Vileta (1942) 53 Cal. App. 2d 749, the new wife had told her hubby before their marriage that she could have children. She knew she couldn'’t. The court annulled that marriage, again on fraud, not on her inability to breed. Kramer’'s decision deals with several other similar cases presented for his consideration.

Kramer writes:

The facts in plaintiffs’ cases also confirm the obvious natural and social reality that one does not have to be married in order to procreate, nor does one have to procreate in order to be married. Thus, no legitimate state interest to justify the preclusion of same-sex marriage can be found in plaintiffs’ cases.

Spinning in San Francisco

A lead plaintiff against same-sex marriages rushed a notice of how it will try to appeal the March 14th ruling declaring it unconstitutional for California to forbid marriage based on gender. The Allied Defense Fund (ADF) called the decision “a great disappointment” on its Website.

The ADF statement includes;

ADF attorneys had argued before the court that it only had the power to declare the state’s marriage laws constitutional or unconstitutional, not the power to redefine marriage. Nonetheless, the court granted San Francisco’s request to declare marriage open to same-sex couples.

Glen Lavy, senior vice president of ADF’s Marriage Litigation Center, adds, “We will continue to fight San Francisco’s attempt to gut marriage of meaning. We steadfastly believe that California’s Constitution supports — and assumes — marriage as the union of one man and one woman. The state has no legitimate reason to extend the definition of marriage beyond couples of the opposite sex. Doing so voids marriage of any meaning by opening the door to recognition of any intimate adult relationship.”

Those arguments received detailed rebuttal in the recent decision. Surely ADF has better ammo.

Changing Laws and Minds in California

In the swath of Monday's California marriage decision, many people squared off pro or con. A law professor who has made this his concentration had a longer view.

The New York Times quoted William B. Rubenstein as saying, "If this were 1975, it would be rather shocking, but in 2005 it is totally consistent with what courts have been doing for the last decade or so." He called Judge Kramer's decision "not out of the mainstream" legally and in line with other decisions, including Hawaii's 1993 ruling. The trend seems to be courts agreeing that marriage is a basic right for all.

Rubenstein is Founding Director, The Charles R. Williams Project on Sexual Orientation Law, at University of California at Los Angeles.

Meanwhile, anti-same-sex-marriage folk are posturing -- appeals, amendments, plebiscites, et alii. On the other side, the Times also got kinder, gentler, perhaps naive quotes from Kate Kendell, executive director of the National Center for Lesbian Rights.

"We have to melt hearts and open minds and that can't be done in the courtroom," Ms. Kendell said. "That is done at P.T.A. meetings, Kiwanis clubs and neighborhood potlucks."

Sacramento Shuffle

California’s marriage law was very similar to Massachusetts’ until 1977. It was based on the English/New England model of civil contract instead of the religious ceremony that many younger states legislated.

California had also enacted strong laws forbidding gender discrimination. As such, it was a candidate for a Massachusetts-style court decision permitting same-sex marriage.

However, probably in reaction to that legal structure, the legislators in Sacramento amended Civil Code Section 4100 in 1977 to add that marriage could only be between a man and a woman. Previously it was the Massachusetts-style “personal relations arising out of a civil contract, to which the consent of the parties capable of making it is necessary.

Then in 1992, this was codified as Family Code Section 300. Finally, in 2000, referendum Proposition 22 (the Limit on Marriages Initiative) added Family Code Section 308.5, which reads, "Only marriage between a man and a woman is valid or recognized in California."

Massachusetts Amendment Vote Tightens

The Massachusetts House has two more same-sex marriage supporters as of yesterday. In special primary elections for the 12th and 18th Districts, voters chose Linda Dorcena Forry and Michael J. Moran.

Forry is a shoo-in for the April 12 full election. She faces no opposition. Moran is very likely in his strongly Democratic district.

If legislators vote as they did last year, they likely will narrowly defeat the second, required vote to put an amendment to the commonwealth constitution before the voters in 2006 to replace same-sex marriages with civil unions. It is possible that conservatives, mostly Republicans, who voted against the putting the amendment could switch. They largely stated that they opposed any type of legalized gay union.

On the other hand, the fact that have been no calamities following either Massachusetts legalization of same-sex marriage nor of Vermont’s earlier adoption of civil unions has blunted objections by many.

In Pittsfield in Western Massachusetts, conservative Republican Terry Kinnas won his party's primary. He favors the amendment and does not object to civil union. He'll face Democrat Christopher N. Speranzo next month. the latter supports same-sex marriage and opposes the amendment.

By the bye, Pittsfield is about 51% Democrats to 12% Republicans, but unaffiliated are 36%. So no one is guaranteed the seat.

California Appeals

The March 14th California Superior Court decision permitting same-sex marriage included a stay of 60 days before implementation to permit the certain appeals to the state Supreme Court. The rhetoric is fun already, including the ever dramatic Liberty Counsel President Mathew D. Staver, who's Website includes:

This ruling is not the end of the battle. It is just the beginning. Marriage should not be undermined by the stroke of a pen from a single judge. Marriage is a fundamental policy issue that must be decided by the people. To rule that there is no rational purpose to preserve marriage as the union of one man and one woman is ludicrous. This ruling, which flies in the face of common sense and millennia of human history, will pour gasoline on the fire ignited by the pro-marriage movement. Californians and the rest of the country will react to this decision by passing constitutional amendments to preserve marriage on the state and federal levels. No society has created a buffet-like arrangement of human relationships from which anyone may pick and choose and call it marriage. Marriage is and must remain the union of one man and one woman.

The press release on that site notes that the decision voids Proposition 22, the one-man/one-woman marriage definition passed by referendum by 61.4% of California voters in 2000. Unfortunately for his side, this looks increasingly like the arguments of the racists in separate-but-equal states in the 1950s and 1960s. What would their referendum percentages have been against giving blacks equal rights with whites?

Staver seems comparatively calm contrasted with Randy Thomasson, executive director of Campaign for California Families. His Website has his views including:

This is a crazy ruling by an arrogant San Francisco judge who apparently hates marriage and the voters. Kramer has trashed the people's vote to keep marriage for a man and a woman and violated his oath to uphold the law instead of making new laws out of his own head. This is the worst type of judge. This case will be immediately appealed.

It's hurtful and insulting to the voters when a judge attacks the voters and destroys the sacred institution of marriage for a man and a woman. This outrageous ruling will inspire average citizens to rise up and fight to protect marriage as it naturally is - for a man and a woman, a husband and wife.

I think we can assume that he won't be the spokesman in the Supreme Court hearings.

Kramer: Terse Master

In San Francisco, Supreme Court Judge Richard A. Kramer is the justice charged with complex litigation. His March 14th decision on same-sex marriage is nothing if not complex. Yet he managed to deal with the issues in six related cases in a mere 27-page decision. It is a near masterpiece of condensation.

He first reduced the gist of each case to how they hinge on Family Code 300 and 308.5. The former provides that a wedding is between a man and a woman. The latter refuses to recognize marriages solemnized elsewhere between same-sex couples. The question common to the six cases is whether either of these laws violates the California constitution.

His decision is available online. It is a PDF file and requires Adobe Acrobat or a compatible reader.

Kramer, a Catholic and Republican, very finely shredded the con arguments. So the California Supreme Court will have clear issues before it.

More clearly than similar decisions in Massachusetts and New York, he took head on the subject of traditional definition of marriage as between a man and a woman. He started by noting that current California law embodies that understanding. “This argument is that opposite-sex marriage is deeply rooted in our state’s history, culture and tradition and that the courts should not redefine marriage to be what it has never been before,” as his decision puts it.

He points out where some traditions become law for good reason, citing holidays, driving on the right-hand side of the road, and common-law jurisprudence.

However, he also draws on the 1948 Perez v. Sharp decision that overturned the traditional ban on interracial marriage in his state. Cons hate such comparisons, but Kramer writes on in some detail about how in that case the court cut through the jive about tradition and about how it applied its taboo equally to blacks and whites. He cites the Perez ruling as including “(c) ertainly the fact alone that the discrimination has been sanctioned by the state for many years does not supply such (constitutional) justification.”

As in Perez, the current cases failed to show a legitimate state interest in forbidding same-sex marriages. Kramer noted that the aim seemed to be to discriminate on gender. Likewise, to the argument that California had created a separate but equal set of health and tax benefits, he concluded that “the creation of a superstructure of marriage-like benefits for same-sex couples is no remedy” for ignoring the state laws forbidding gender discrimination.

His next punch line was that “California’s enactment of rights for same-sex couples belies any argument that the State would have a legitimate interest in denying marriage in order to preclude same-sex couples from acquiring some marital right that might somehow be inappropriate for them to have.” That’s heady stuff, which may find its way into the national debate and future decisions.

Kramer's Decision Online

You can grab Judge Kramer's decision declaring California's ban on same-sex marriage unconstitutional. It is available at FindLaw.

Note: This link opens a 27-page PDF (only 62KB). You need Adobe Acrobat or a compatible reader to view it.

California Suit Background

A recap of how California got from San Francisco marrying over 4,000 same-sex couple against state law to a combined decision of outstanding related cases appears here.

State Superior Court Judge Richard Kramer let everyone from all sides with a pending suit or amicus filing take their best shots over the past several months. Some suits were filed in Los Angeles and others in San Francisco.

The fundamental Christian take on why Kramer's letting the conservatives make their full argument should be great is here. The follow-up article after his decision should make good reading too. I'll watch for it.

The legal background with numerous links is off a New Mexico rights page specifically for the California controversies. One insightful link off that page is to a Bob Egelko article in the San Francisco Chronicle on the surprising coalitions on con and pro sides of the same-sex-marriage debate.

California Judge Ups Ante

Same-sex marriage appears headed to California's highest court, soon. Today, San Francisco County Superior Court Judge Richard Karmer ruled the state law that withholds marriage licenses based on gender is unconstitutional. He wrote that there was "no rational purpose" for limiting marriage to opposite gender couples.

He seems to have put a plain point on the constitutional issue. In his decision, he wrote, "The state's protracted denial of equal protection cannot be justified simply because such constitutional violation has become traditional."

Meanwhile, there is likely a loud humming from the drones in Sacramento. Two bills are trying to get a DoMA bill on the November ballot. This could take the decision out of the hands of both the courts and the legislature, if the state's Supreme Court doesn't handle it first.

Voters on S-S Marriage

Today’s Boston Globe includes poll results of 501 Massachusetts adults conducted by the University of New Hampshire (UNH) Survey Center March 5 through 8. It had questions on both same-sex marriage and stem-cell research. Let’s assume that neither topic nor the question phrasing skewed the results.

Note: These links may disappear. I’ll try remove them if I find that they do.

The article's conclusions include:

Support for gay marriage comes primarily from Democrat's, those under 35 years of age, people with post-graduate educations, and those with no religious affiliation. Republicans are more likely to oppose gay marriage. Protestants were split on the issue, and Catholics opposed legalized gay marriage by 49-44 percent, within the margin of error.

(Andrew E. Smith, the UNH center’s director) said that the strong support from the 18-to-34-year-old age group shows that controversy over gay marriage will fade as older people who tend to oppose gay marriage begin to due.

The following results are for the same-sex-marriage set. I have paraphrased the much longer questions.

SHOULD SAME-SEX MARRIAGE BE LEGAL?

	YES	NO	DON'T KNOW
OVERALL	56	37	7
PARTY AFFILIATION
Democrat	63	32	5
Republican	39	56	5
Undeclared	52	40	8
GENDER
Female	60	33	6
Male	51	41	7
AGE
18-34	71	26	3
35-49	53	37	10
50-64	57	37	5
65=	42	52	6
RELIGION
Protestant	47	47	6
Roman Catholic	49	44	7
Other	60	35	5
None	80	12	8

POTENTIAL 2006 SAME-SEX BALLOT QUESTION

	YES	NO	DON'T KNOW
Should question be on ballot?	54	41	5
Would you vote for it?	45	45	10

Mitt Catching It

Governor Mitt Romney's seemingly petty attempt at preventing at least some gay marriages got an official challenge Friday. Eight same-sex couples and 13 Massachusetts town or city clerks challenged the application of laws forbidding marriages by out-of-staters if such weddings would not be valid in their home states.

The suit to the Supreme Judicial Court asks for rulings on Massachusetts laws Chapter 207, Section 11 (forbidding marriages not legal in other states) and 12 (requiring the clerks to verify the legality of the marriages).

Gay & Lesbian Advocates & Defenders (GLAD) filed a 90-page amicus brief, which argues

The Commonwealth’s application of §§11-12 to non-resident same-sex couples violates the Privileges and Immunities Clause of the U.S. Constitution. The right to marry is a “privilege” or “immunity” of state citizenship, and is therefore deserving of protection under the Privilege and Immunities Clause. The Commonwealth lacks a substantial justification for its discrimination between non-resident same-sex couples and resident same-sex couples and cannot demonstrate a substantial relationship between its discrimination and its purported justifications for §§11-12.

Note: The above link opens a PDF file, which requires Adobe Acrobat or compatible reader.

In its press release on the subject, GLAD includes:

The brief makes the case that Goodridge is the reigning law. “Goodridge said that Massachusetts may not discriminate against same-sex couples who want to marry,” said GLAD attorney Michele Granda. “Goodridge did not say Massachusetts can discriminate if the other state discriminates.”

GLAD also argues that the Governor revived the 1913 law because of his opposition to the marriages of same-sex couples, knowing that it would prevent them from marrying in the state. Before May 17, 2004, the Commonwealth never took any action to bar non-residents from marrying who could not marry in their home states.

“The Commonwealth never sought information from applicants about their own state’s laws,” said Granda. “The 1913 law was taken off the shelf and dusted off for the express purpose of discriminating against gays and lesbians.”

These two sections of the commonwealth marriage law are the ones civil liberties folk point out were specifically enacted to prevent interracial marriages.

Common-Law Un-Marriage

Massachusetts does not accept common-law marriage in its borders, except by those who have legal common-law marriages elsewhere and move in-state. Even then, the commonwealth has to have a reason and mechanism to recognize the marriage.

Typically, this would be at some crisis, like death, hospitalization or suit for divorce. Then the extra level of government lays on. An appropriate court would have to first rule that the marriage was valid. Only then could the couple or survivor get the settlement, visitation rights or power-of-attorney, or divorce.

An article touching on the complexities, includes, "Suppose you opt for the common law marriage believing that, if the relationship ends, you'll avoid a nasty divorce proceeding. This is a bad reason to have a common law marriage."

Boston Uncommon

In another law with roots in the colonial era, Massachusetts does not recognize common-law marriage entered to within its borders. That is, de facto marriages without a license or ceremony, in which the couple simply presents themselves as married. However, it does recognize common-law marriages that were legal in the states.

Currently, those other states are:
Alabama
Colorado
District of Columbia
Georgia (if created before 1/97)
Idaho (if created before 1/96)
Iowa
Kansas
Montana
New Hampshire (for inheritance purposes only)
Ohio (if created before 10/91)
Oklahoma
Pennsylvania (if created before 9/03)
Rhode Island
South Carolina
Texas
Utah

This is an interesting wrinkle on the full-faith and credit clause under which the 50 states and the District of Columbia recognize each other's laws. The DoMA states are weaseling out of this long-standing practice for same-sex marriages.

Oh, Yeah, Olympia?

Washington State's Supreme Court hears same-sex-marriage arguments tomorrow. It has all the ingredients pro and con. The decision is up for grabs.

Unlike Massachusetts,here the legislature and governor staked their (opposite) grounds clearly. In 1998, the lawmakers overwhelmingly passed a Defense of Marriage Act and overrode the governor's veto. Since then, two different Superior Court judges have ruled that law unconstitutional. In anticipation of the high court's deliberations, no one has married or even licensed the marriages of same-sex couples there.

In one case, Andersen v. Sims, Judge William Downing rules on August 4, 2004, that the state did not show any compelling interest or reason for the DoMA. His detailed decision answers the now commonplace questions from the con forces. For example:

Some declaim that the institutions of marriage and family are weak these days and, in fact, stand threatened. Any trial court judge who regularly hears divorce, child abuse and domestic violence cases deeply shares this concern. It is not difficult, however, to identify both the causes of the present situation and the primary future threat. They come from inside the institution, not outside of it. Not to be too harsh, but they are a shortage of commitment and an excess of selfishness. Before the Court stand eight couples who credibly represent that they are ready and willing to make the right kind of commitment to partner and family for the right kinds of reasons. All they ask is for the state to make them able.

Note: This link and the following one open Acrobat PDF documents. You need a compatible reader.

On September 7, 2004, in the other case, Castle v. Washington, Judge Richard Hicks rules more narrowly. He wrote, "For the government this is not a moral issue. It is a legal issue. Though these issues are often the same, they are also quite different. The conscience of the community is not the same as the morality of any particular class." He ruled against the DoMA also, writing, "When the government is involved, one part of the community can not be given a privilege that is not given to other members of the community unless the government can demonstrate how that discrimination furthers the benefit of the entire community."

Tenuous Grandparent Visits

One would think that grandparents could visit their grandkids. However, what if they are not nice people, or if the children have been adopted by non-relatives, or any of myriad circumstances. Well Massachusetts law, Chapter 119: Section 39D is ready for that.

Visitation rights to certain grandparents of unmarried minor children; place to file petition

If the parents of an unmarried minor child are divorced, married but living apart, under a temporary order or judgment of separate support, or if either or both parents are deceased, or if said unmarried minor child was born out of wedlock whose paternity has been adjudicated by a court of competent jurisdiction or whose father has signed an acknowledgement of paternity, and the parents do not reside together, the grandparents of such minor child may be granted reasonable visitation rights to the minor child during his minority by the probate and family court department of the trial court upon a written finding that such visitation rights would be in the best interest of the said minor child; provided, however, that such adjudication of paternity or acknowledgment of paternity shall not be required in order to proceed under this section where maternal grandparents are seeking such visitation rights. No such visitation rights shall be granted if said minor child has been adopted by a person other than a stepparent of such child and any visitation rights granted pursuant to this section prior to such adoption of the said minor child shall be terminated upon such adoption without any further action of the court.

A petition for grandparents visitation authorized under this section shall, where applicable, be filed in the county within the commonwealth in which the divorce or separate support complaint or the complaint to establish paternity was filed. If the divorce, separate support or paternity judgment was entered without the commonwealth but the child presently resides within the commonwealth, said petition may be filed in the county where the child resides.

Those Other Views

It’s rather endearing to read the idealized comments about marriage. You’d almost think at all of us straight folk who married did so with the most honorable intentions, maintained our commitments, did not sleep around and divorced only in the most extreme circumstances. Perhaps I am naïve, but I find that only a nice ideal. I see it in my home, but I also see considerable contradictory relationships.

However, for those wondering, What are they thinking?, several anti-same-sex-marriage groups have produced apologies that tell exactly that. Everyone, pro and anti, should read the arguments.

I suggest the Family Institute of Connecticut’s tract as a start. It covers a lot of ground and lays out the talking points. For example:

Apart from the social cost, there will be substantial financial cost. In fact, much of the literature in favor of same-sex civil unions is about money and benefits. One expense resulting from the Vermont legislation was requiring insurance companies to insure civil union partners for medical insurance policies and requiring business owners to pay for medical insurance coverage for these partners equivalent to that offered married couples. Business owners would not be free to pay just for married couples, even if, as a matter of conscience, they do not support same-sex unions.

It is almost unthinkable for a man and a woman to marry merely to receive medical benefits, or any other benefits, for that matter. Parties to a civil union, on the other hand, facing potentially enormous health costs, will be tempted to enter into civil unions in order to move the cost of their health coverage from themselves to a business owner.

....If same-sex unions become equivalent to marriage under the law, then we should expect that those who disagree with the model of monogamous marriage will move to attack that model.

Note: The link above opens an Adobe Acrobat PDF. You need a compatible reader for it.

One More Pro Vote

A key player in the coming Massachusetts constitutional convention will be the speaker of the House. Same-sex-marriage opponent Thomas Finneran retired from that position when he did not run for reelection in the 12th District. His spot in the House is up for grabs, athough the speaker's job is not.

Tuesday, February 23, voters got an earful of the five Democrats who are trying to get the spot. Only one, Eric Donovan, a lawyer in Boston's Dorchester neighborhood claimed to be a social conservative. I suspect we know his chances.

No Republican is running.

The debate at the Mildred Avenue Community Center in Boston's Mattapan neighborhood was the first of two sponsored by MassVOTE. The nonpartisan group has detailed news coverage of the race. That neighborhood is heavily Haitian-American, and three of the five candidates are as well.

Three of the five are strongly in favor of same-sex marriage.

• Donovan claims that his Christian principles make him oppose it.
• Emmanuel Bellegarde, a real-estate developer, has said he will support the laws but personally opposes it.
• Linda Dorcena-Forry of Dorchester, a staffer at Boston's Department of Neighborhood Development, Stacy Monahan, district chief of staff to State Rep. Stephen Lynch, and Kerby Roberson, an attorney in Milton, all said they favor it.

Nutmeg Neighbor

Apparently, Massachusetts will remain the only state that allows same-sex marriages for the time being. Connecticut was kicking around the idea, but has come down strongly in favor of civil unions.

In the last two weeks, legislators in both houses in Hartford have spoken out passionately in favor of stopping marriage discrimination by gender and of permitting same-sex civil unions. Governor Jodi Rell chimed in, saying she didn't have any problem with the concept of civil unions.

The state's judiciary committee just approved a bill permitting civil unions with a 2-1 vote in favor. Legislative observers expect this to become law by June of this year. This would make Connecticut the only state to permit any form of legal same-sex marriage or union without a mandate from the courts.

Democratic Representative Mike Lawlor, chair of the judiciary committee, said, "It seems like anti-gay sentiment in the legislature has abated quite a bit. Republicans are realizing that politically there is no downside to doing this."

This is framed in both houses as an equal-rights issue. It may be the right solution there based on the cliche that everyone is unhappy. Conservatives don't want any form and gay advocates want full marriage. Will Connecticut be the trendsetter?

Tap Dancing

The conservative tabloid, the Boston Herald, criticized Governor Mitt Romney (a very infrequent occurrence) after his recent not-really-running-for-POTUS-yet swing. It hit him on making disparate statements on abortion rights and same-sex marriage.

On the latter, the Herald contrasted:

In Massachusetts, the governor said for months he opposed Vermont-style civil unions, but then cobbled together the Republicans needed to pass a constitutional amendment in the Legislature that bans gay marriage and creates civil unions. Romney says he did so only because it was either that or allowing gay marriage completely

On the "Road to the White House," Romney doesn't mention the tacit support for civil unions -- saying only that he has been opposed to civil unions "from day one."

Local Tune

Visiting in Salt Lake City, Massachusetts Governor Mitt Romney was at his most tautological. The last Friday of February he told Utah Republicans, “America cannot continue to lead the family of nations around the world if we suffer the collapse of the family here at home.”

Speaking to the county Republican Party dinner, he got considerable applause for saying that he was opposed to same-sex marriage. His remarks in the Mormon stronghold played much better than in Southern Baptist dominated South Carolina a few days before.

It remains to be seen whether Romney can rinse off the stain of heading a state so opposite from what he claims to believe. In Utah, he asserted that the Supreme Judicial Court decision permitting same-sex marriage was “a blow to the family,” but did not cite any bad effects of the ruling or reasons for his statement. One might suppose that his conclusion was to be taken on faith.

Elephant Dreams

Go away for a few days and the governor goes wild! Mitt Romney hit up several more states in his undeclared efforts to be the next Republican candidate for POTUS. He performed the same-sex marriage shtick. It’s the I-was-always-against-it-but-they-made-me-do-it routine that really never works.
This should have posted February 27.

Amusingly enough, for all his bluster, he may have wasted his words in South Carolina last week. The New England papers as well as the AP missed the undercurrent. Their coverage was about his trying to distance himself from same-sex marriage and making strong anti-abortion statements. There are real questions about how seriously that can be taken from a governor of a state that bans the death penalty, supports abortion rights, and has legalized homosexual marriage.

Meanwhile, the reports in the South Carolina press cut to the chase and bode ill for the man with the magic underwear. The opening line in the story from the largest paper, Columbia’s The State, was “Republican Gov. Mitt Romney of Massachusetts, a devout Mormon, flew into the heart of the South Carolina Bible Belt on Monday to test the climate for a possible presidential run in 2008.”

Yankees may well demand details on policies and positions as the ante to the game, but to many Southerners the first question remains, “Who are your folks?”

“Good luck,” The State quoted Clemson political-science professor Dave Woodard. “I don’t think that (his religion) will play well at all.”

Blog Back Up

I apology for no new posts. After over a week, and two permanently lost posts, Blogspot restored my ability to post. They apparently had some technical issue, which they have not explained.

A lot happened and I'll try to post abbreviated versions of news in the next few days.

Hedging Bets

You and your same-sex partner can cover the current bases at the Avril Stand B&B in Witingham, Vermont, a few miles above the Massachusetts border. It offers civil union and marriage packages. You can do either or both.

The idea is that civil unions are legal in Vermont and marriages in Massachusetts may or may not ever be recognized by another state. So a couple can enjoy the scenery, get good meals, and have every detail of the ceremony taken care of, for $699.

If you go for the marriage package on top of the civil union, your get:

• 3 Additional nights at Averill Stand (extra time needed for marriage 3-day waiting period after licensing)
• Massachusetts officiant
• Escorted trip for your Massachusetts license
• Well-orchestrated Wedding day combined with your Civil Union, including Bob's undivided attention and accompaniment to walk you through it all.

Convention Tension

In Massachusetts, the friction between some African-Americans and same-sex-marriage advocates continues. In a think piece in in newsweekly, Rev. Irene Monroe predicts another crisis around the constitutional convention. (Her credentials include being head teaching fellow for Rev. Peter Gomes at the Harvard Divinity School.)

For anyone not paying attention, some black political activists, ministers and community members were offended when some same-sex-marriage activists called their efforts a civil-rights struggle and compared gender-restricted marriage laws to mixed-race marriage bans of the last few centuries. Even some African-American homosexuals say they suffer from “marriage fatigue” by adding this struggle, according to Monroe.

She wrote:

With very little time before the Massachusetts Legislature takes up the marriage issue again, and with anti-gay activists gearing up for the next round in this debate, what a crying shame it would be if we lose this battle because of all the infighting.
The issues raised by the African-American LGBTQ community must be taken seriously and corrected in order to successfully move forward.

She’s not too specific about what the two sets of activists can do other than work together.

Eh, Canada?

Twice as many same-sex couples wed in Massachusetts since it legalized these marriages as have in Canada in twice the length of time. Of the approximate 4,500 such couples to wed in Canada, over a quarter of those were from outside the country – kiss-and-run unions.

About 85% of the 32 million Canadians live where they could legal marry. Yet there is much more vocal debate in the gay press and on Websites about whether conventional marriage is desirable. Some are strongly in favor. Others are not sure this is good for the homosexual culture.

Mitchel Raphael, editor-in-chief of the Canadian Fab magazine gets a lot of coverage in anti-same-sex marriage circles for his editorial comments. He calls infidelity, marriage and family “straight jargon.” One of his editorials reads, “As the gay community adopts mainstream terms, it will be a challenge to see whether they will twist their traditional definitions or simply fall victim to their traditional meanings.”

Other gay Canadians have wondered in print and online whether there will be conflicts between those who want to fit into conventional culture and those who do not want to assimiliate.

A reader poll published by Fab last April found:

• 47% "go for something like civil unions and develop our own customs as long as we have the same rights as straight married couples"
• 36% "settle for marriage and nothing less"
• 11% do not "buy into the heterosexist, oppressive institution of marriage"
• 7% "help lead a movement to abolish the institution of marriage."
  

Cautionary Humor

Raphael Mitchel, that inflamatory editor-in-chief of Canadian gay mag Fab, offered his own version of the slippery slope of same-sex marriage, including:

If throwing the bouquet in 2004 is like throwing a brick at Stonewall in 1969, then perhaps the marriage war is worth fighting. But once we do finally secure it, we should quickly rename it something else. Marriage is already so last millennium. We queers do need to stay ahead and not copy Kinsey zeros. The next thing you know, hets will want their own bathhouses.

Janus, Part 2

A likely preview of the appeal arguments in the NYC same-sex marriage-license case is in the amicus filing by Lambda to the NY Supreme Court. It cites the surprisingly aggressive positions by the NYC lawyers (Corporation Counsel of the City of New York) and addresses each. If as expected, the City iterates these in its appeal, you can see what the seven judges will consider.

Note: The above link is to a PDF file that requires a compatible reader.

It is clear that NY Mayor Michael Bloomberg’s public statements are starkly at odds with his lawyers’ filings. He has said that personally he favors same-sex marriage. Meanwhile, the Corporation Counsel writes that there is no right to marriage, that the state can make any limitations it prefers, and that one-man/one-woman has been the rule since Genesis.

No matter how the judges decide in Albany, I don’t see how it can end any way other than badly for the hypocritical Bloomberg. So far, his posture is that the City attorneys made him appeal. One would assume that at his age he would pick one side and stand with it.

Friendly Neighbor

Connecticut's legislature has before it Senate Bill 963, An Act Concerning Marriage Equality, which specifically authorizes same-sex marriages and changes marriage-law wording to accommomdate them. If -- big if -- enacted by both houses of the General Assembly, it would bring the state in line with Massachusetts' marriage law on October 1, 2005.

The bill went to the judiciary committee and may or may not reappear this session. The first hearing on Monday was backed with people from both sides.

The anti-same-sex-marriage folk are calling for campaigns against the bill, including flooding hearings and writing letters. Family Institute of Connecticut is working on quashing the bill.

This session also has House Bill 6601, An Act Concerning Marriage Recognition. It would have Connecticut recognize as valid the marriages of same-sex couples wed in Massachusetts or elsewhere in the country or world. This is the stance of New York Attorney General Eliot Spitzer for his state.

This makes the fourth consecutive annual session that the Connecticut legislature has had same-sex marriage up for debate.

AG Says No Amendment

Suddenly Massachusetts Attorney General Thomas Reilly is vocally against a DoMA-style amendment to the commonwealth constitution. In interviews with a TV station and the two local dailies yesterday, he stated flatly that once a right is given it should not be taken away.

Before the decision legalizing same-sex marriage, he led the fight against it, while urging, maybe, civil unions. That pretty much put him in line with Republican Governor Mitt Romney.

For reasons no one seems to fathom, Massachusetts has been in a pattern of electing Republican governors and lieutenant governors, and Democratic legislatures and attorneys general. The plot here thickens when Reilly is seen as an unannounced candidate for governor next year.

He claims that he has matured and that because he always, as chief lawyer here, has supported the law of the commonwealth. Thus, he said, he has been consistent.

The gay community does not universally accept that. Cynics or realists among them followed up his interviews yesterday with disparaging comments. He was not a leader for the cause when he had a chance. Now that it may benefit him to distance himself from Romney, he seems to be courting the homosexual and liberal voters. For example, the lead editorial in leading gay newspaper, Bay Windows, is headlined Reilly's acts hard to forgive. It calls for some other candidate for governor and concludes that Reilly will really have to grovel to get the gay vote.

Dotting i's

In two months, the final challenge to stay the Goodridge decision that permitted same-sex marriage in Massachusetts will take place before the Supreme Judicial Court. This is the wheels of justice grinding exceedingly fine and slowly. It is likely to have no meaning other than finalizing the status.

C. Joseph Doyle vs. Hillary Goodridge et al. (also known as Doyle v. Goodridge) was one of those desperate stabs at getting the court to reconsider the decision. It attempted to block implementation of issuing marriage licenses to same-sex couples.

The process requires that this action gets a briefing to the course and oral arguments. It is a virtual certainty that the court will yawn.

Tongues Out

Two Roman Catholic Massachusetts legislators, both women, explain how they voted for same-sex marriage and kept their seats in heavily Catholic districts. Rep. Marie St. Fleur and Sen. Marian Walsh addressed yesterday's Religious Coalition for the Freedom to Marry. The group honored the two at its annual awards luncheon.

St. Fleur said she got a lot of nasty calls and spoke with many angry voters in her parish. Walsh found that her marriage stance became the largest campaign issue used against her in last year's elections. She skunked her opponent, apparently because of her solid record of achievement across many constituent issues.

The heavily populated eastern Massachusetts is over half RC (53.21% according to the church). Walsh in West Roxbury and St. Fleur in Dorchester are in even more heavily RC sections. Both women have supported the church's positions in numerous personal and legislative issues, but they differ with Archbishop Sean O'Malley on this one.

The Coalition reports 600 congregations and clergy as members. Its awards to the legislators cited "outstanding leadership in upholding the religious freedom of every citizen in the Commonwealth by suuporting marriage equality as a civil right."

New Pew DoMA

The Pew Forum has a revised list of states with and without one-man/one-woman marriage laws. The report comes with a map and analysis.

States with Statutes Defining Marriage	States with Constitutional Language Defining Marriage	States with Neither
Alabama Alaska Arizona Arkansas California Colorado Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire North Carolina North Dakota Ohio Oklahoma Pennsylvania South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wyoming	Alaska Arkansas Georgia Hawaii Kentucky Louisiana Michigan Mississippi Missouri Montana Nebraska Nevada North Dakota Ohio Oklahoma Oregon (Const. only, no statute) Utah	Connecticut Massachusetts New Jersey New Mexico New York Rhode Island Wisconsin
TOTALS:                42	17	7

More Waiting in Boston

Just in from the Massachusetts State House, the vote on the amendment replacing same-sex marriage with civil union will not occur this spring. Senate President Robert Travaglini has spread the word that the debate would be a distraction. He doesn't expect to allow it before the Joint Session until the fall.

A report in today's Globe details the thinking and cites Senate minority leader Brian P. Lees (Republican) and another unnamed senator.

Key dynamics are:

• The votes are not quite there for a majority second vote to put this amendment on the ballot in 2006.
• Three same-sex-marriage opponents in the legislature quit last year and will be replaced in special elections in a few months.
• Eight conservative Republican opponents have voted against the amendment because they also oppose civil unions.
• Opponent lobbyists will try to pressure them to vote for the lesser evil, the amendment.
• Same-sex supporters will lobby to keep support, gain new allies, and win in the special elections.

Not surprisingly, the prediction of chaos when same-sex marriage started is being replaced by predictions of eventual chaos by opponents. That has been a hard sell in the face of the pretty seamless changes. It's akin to the clichéd you'll-poke-your-eye-out forecast that something bad will happen sometime, maybe soon.

A new voter poll by UMASS/Lowell shows that a scant majority, 53%, want the amendment on the ballot. That also eases pressure on legislators to act against same-sex marriage. The vote last year was 105 to 92 for putting the amendment on the ballot. Pro and con forces both claim to be underdogs and tell their supporters in and out of the legislature to work non-stop until the vote.

DoMA States

A listing of states with Defense of Marriage (one-man/one-woman) laws was part of the statement to the Massachusetts Joint Committee on the Judiciary by Joshua K. Baker, staff attorney of the Marriage Law Project (MLP). The tables below are from this, December 14, 2002 testimony. So the states with amendments has increased.

The updated count after the last election moves Ohio and Texas into the DOMA list, for a total of 38 with and 12 without.

The MLP is part of the Law & Religion Program of the Catholic University of America. The Joint Committee is a combined session of the Massachusetts legislature charged with preparing for the constitutional convention in 2006.

The 36 States With Marriage Recognition Laws

Alabama	Hawaii*	Michigan	Oklahoma
Alaska*	Idaho	Minnesota	Pennsylvania
Arizona	Illinois	Mississippi	South Carolina
Arkansas	Indiana	Missouri	South Dakota
California	Iowa	Montana	Tennessee
Colorado	Kansas	Nebraska*	Utah
Delaware	Kentucky	Nevada*	Virginia
Florida	Louisiana	North Carolina	Washington
Georgia	Maine	North Dakota	West Virginia

*Constitutional amendment

The 14 States without Marriage Recognition Laws

Connecticut	New Jersey	Oregon	Wisconsin
Maryland	New Mexico	Rhode Island	Wyoming
Massachusetts	New York	Texas
New Hampshire	Ohio	Vermont

Coy in Albany

Will New York State join Massachusetts in permitting same-sex marriage soon? The head of the highest court there is teasing the media about it.

Yesterday at a news conference, Chief Judge Judith S. Kaye of the Appeals Court would say only, "I expect someday the issue will come to us, in this case or another case," in reference to Friday's announcement that the City would appeal the order to issue same-sex marriage licenses. Both Mayor Michael Bloomberg and Attorney General Eliot Spitzer have requested quick action. She refused to say whether the court would expedite it.

According to a court spokesman, the average time for an appeal from filing to decision is 259 days.

The court would look at the recent NYC case and likely consider one or more of the three upstate (more conservative) decisions that upheld denial of same-sex marriage licenses.

Stone-Wal-Mart

Last year’'s expansion of marriage to same-sex couples is trickling into the benefits bucket. Wal-Mart is kind of adapting. In its January 26, 2005, SEC filing, it redefined immediate family for employees in its conflict-of-interest section. This definition now reads that:

...Immediate family members include (whether by birth, adoption, marriage or Domestic Partnership or Civil Union, if recognized by your state or other local law) your spouse, children, parents, siblings, mothers and fathers-in-law, sons and daughters-in-law and brothers and sisters-in-law...

The nation'’s largest employer does not say that because these fall under the you-can’'t-do-any-of-this rules that they'’ll be included in benefits. However, it seems headed in that direction.

A report on the matter in Bay Windows newspaper suggests that this may become company policy. “"I’'m cautiously optimistic that the policy will apply to benefits in some states,"” it quotes Daryl Herrshchaft, deputy director of the Human Rights Campaign, as saying. Wal-Mart spokesman Dan Fogelman commented that the company insures Massachusetts employees under HMOs. It is bound by state law, including covering same-sex spouses.

NYC Mayor Janus

Talk about wanting it all ways, NYC Mayor Michael Bloomberg supports same-sex marriage, so much that he authorized the City to fight Friday's court decision permitting it. Huh?

He managed to anger all sides in his effort to face both simultaneously. Many Republican state legislators are against same-sex marriage, and have called him on his ambiguous posture.

First, he gave a very politically clumsy and naive speech Saturday at the Waldorf-Astoria before 1,000 at the Human Rights Campaign dinner. From one face, he said that he wanted to work with the state legislature to enact laws legalizing same-sex wedding. From another face, he said he would fight the recent victory for same-sex marriage license for the City. He got cheers for the first and jeers for the second, reported the City's daily papers.

According to the New York Times version of the story, he fared worse in his second speech to the Lesbian & Gay Pride dinner dance in, if you pardon, Queens. There the crowd derided him as a hypocrite and liar. The Times piece concludes, "Despite the hostility, Mr. Bloomberg did not bolt, taking the time to shake the hand of anyone who was not yelling at him."

The Race to Albany

It looks as though the ACLU may have to get in line in its appeal. In New York, the civil-liberties group had asked the highest state court, the Court of Appeals in Albany, to reverse its loss in a suit to allow same-sex marriage. Today, New York City Mayor Michael Bloomberg decided to appeal the opposite -- a court mandate that his city license same-sex weddings.

There's a good chance with this extra muscle, the NY high court will hear the matter pretty quickly. Without stating a personal position, Bloomberg is quoted by the AP as saying, "I'm glad the judge ruled this way because it gets us the ability to get this to the appellate court." In his comments he would only go so far as to say he was trying to avoid the San Francisco-style confusion when couples wed only to have their marriages invalidated by the courts.

I predict a snowstorm of amicus briefs on both side. The reactionary, Florida-based Liberty Counsel supported the earlier suit in which the anti-same-sex marriage folk won last December. That group would certainly not be pleased for a second state to follow Massachusetts in legalizing such unions.

Albany, the state capital, is not Manhattan. It's hard to tell how this one will conclude. The state Supreme Court judge who ordered same-sex marriage licenses for the City clearly delineated her constitutional arguments in her 62-page decision. This looks like a fun fight.

Sooner Rather Than Later

In New York, getting the same-sex marriage question before the state's highest court may only be a few months away. Meanwhile, Attorney General Eliot Spitzer says he will not intervene but let the courts follow their course.

The ACLU, which lost in a suit for 13 plaintiff couples denied marriage licenses because of the gender, expects to be first up. On the NY ACLU Website, the group states about its loss in Albany last year:

The trial judge there upheld the current marriage laws in December 2004. The ACLU has asked the Court of Appeals to take the case, which would be the first of the New York cases to reach that court. The court is expected to decide whether to take the case within the next two months.

If New York City does not appeal yesterday's decision to permit same-sex marriages, it will begin issuing licenses next month.

Fireside Reading

Today's ruling in Manhattan that may open the door for same-sex marriage in New York State is fun reading. In a 62-page, very literate decision, New York State Supreme Court Justice Doris Ling-Cohan ranged from citing literature to the irony of one of the plaintiff couples.

Note: The decision link above is to a PDF file. You must have a compatible reader.

Curtis Woolbright’s interracial parents moved to California so that they could legally marry. He sued to get a license to marry his partner. Ling-Cohan wrote:

An instructive lesson can be learned from the history of the
anti-miscegenation laws and the court decisions which struck them down
as unconstitutional. The challenges to laws banning whites and
non-whites from marriage demonstrate that the fundamental right to
marry the person of one's choice may not be denied based on
longstanding and deeply held traditional beliefs about appropriate
marital partners.

We can we sure the anti-same-sex marriage groups are fuming. They hate that argument.

Ling-Cohan also differentiates New York law from the Massachusetts decision on the same matter. She acknowledges that the existing New York laws did not expressly bar same-sex marriages, unlike incestuous ones, only because the legislators at the time had no experience with them. Instead, she sees the case turning on state constitutional due-process and equal protection issues.

Her reasoning on constitutional and case-law bases takes over half the decision. Again, it is good reading and illustrates what the legal issues are.

For many, the cut-to-the-chase moments are in the last two pages, specifically

• Plaintiff's receive their summary judgment
• The city license clerk's cross-motion for dismissal is denied
• The state Domestic Relations Law (DRL), Article 1, Sections 6 and 11 are unconstitutional
• Where husband, wife, groom and bride appear in the DRL, they shall mean spouse, and related pronouns will apply equally to genders
• The licensing office can not longer deny wedding licenses "solely on the ground that the two persons in that couple are of the same sex"
• Implementation of the order is stayed for 30 days

The licensing clerk and other interested parties have a month to scheme and stew...and appeal.

If there is an appeal or a fight with the early ruling in Albany, it will go to the state Court of Appeals.

Et Tu, York?

According to the AP wires, New York State Supreme Court Justice Doris Ling-Cohan ruled that discrimination by gender in marriage is unconstitutional. If upheld, this would make New York the second state to legalize same-sex marriages. The NYC Law Department has just received the decision and not decided whether to appeal. Her order applies to NYC and unless appealed could affect the entire state.

Her ruling was on a suit by five same-sex couples denied marriage licenses.

That state's Attorney General Eliot Spitzer issued advisory opinions 11 months ago that:

1. New York did not permit issuing marriage licenses to same-sex couples
2. However, same-sex couples married in other states, or in this case, Massachusetts, would be recognized as married in New York.

Last December, in Albany, a different State Supreme Court judge in a similar case said plaintiffs were not being denied due process or equal protection in the same circumstances. This suggests a higher court battle in the state. Also, conservative Governor George Pataki is on record saying that his interpretation of his state's law is that marriage is between a man and a woman.

It could be an interesting Spring and Summer in New York.

Prickless Wedding

After 62 years of negligible results, Massachusetts stopped its requirement that couples applying for a marriage license have a blood test. Yesterday a bill repealing the requirement became law and took affect as of January 28th, the previous Friday.

Massachusetts was way behind the curve on this one. According to Dr. Alfred DeMaria, the Department of Public Health (DPH) director of communicable disease control, under a dozen states still require a blood test for a license.

As in other states, the test became a mandate during the post-WWI fears of syphilis. It turns out, according to the DPH, that it found few cases and was expensive. When syphilis was common, they expected to find one in 10 applicants with the disease, but found about 1%. Now that figure is much lower and the test had been costing the public about $2 million annually.

Chicken Little Moments

Alarmist types on the Net and in print have recently claimed that religious folk will have be forced to perform same-sex marriages or lose their rights to marry anyone. Eyewash (and unconstitutional)! Ministers, priests, rabbis and other clerics authorized to solemnize marriages in Massachusetts can and do continue to discriminate. They can refuse to perform any marriage, even based on gender, race, religion or other characteristic of the couple.

However, as state officials, justices of the peace cannot refuse the civil solemnization of any couple with a valid marriage license. The office of the Governor’s Legal Counsel spells it out in its duties page for justices of the peace.

Justices of the Peace are public officials that have sworn an oath that to "bear true faith and allegiance to the Commonwealth of Massachusetts, and [to] support the constitution thereof." In Goodridge v. Department of Public Health, 440 Mass. 309 (2003), the Supreme Judicial Court of Massachusetts decided that denying marriage to couples based on their sexual orientation violates the Massachusetts Constitution. As such, Justices of the Peace may not refuse to marry same sex couples based on their sexual orientation, and may face personal liability if they do refuse to marry a couple based solely on sexual orientation. In addition, refusing the marry a same sex couple solely based on their race, sexual orientation, or other protected status may constitute cause for removal of a Justice of the Peace's commission.

As JP commissions are easy money and coveted spots, few JPs if any will resign. Who knows, they may learn to enjoy uniting gay couples. At the one gay civil union I attended in Vermont, the JP said he preferred same-sex ceremonies because the unions were always sincere and often had original vows.

Untrue Truth

A wonderful pseudo-memoir that illustrates 19th century Massachusetts and New England marriage law is widely available in etext for free. It is billed as Seven Wives and Seven Prisons; Or, Experiences in the Life of a Matrimonial Monomaniac: a True Story by L.A. Abbott and dated 1870. However, it is historical fiction.

In it, the protagonist goes to jail seven times for falling afoul of marriage laws. One example of his troubles in Massachusetts includes:

They took me to Northampton and brought me before a Justice, on a
charge of bigamy: The sheriff who arrested me, and the relatives who
accompanied him were willing to swear my life away, if they could,
and the justice was ready enough to bind me over to take my trial in
court, which was not to be in session for full six months to come.
Those long, weary six months I passed in the county jail. Then came
my trial. I had good counsel. There was not a particle of proof that
I was guilty of bigamy; no attempt was made on the part of the
prosecution to produce my first wife, from whom I had separated, or,
indeed, to show that there was such a woman in existence. But,
evidence or no evidence, with all Worthington against me, conviction
was inevitable. The jury found me guilty. The judge promptly
sentenced me to three years' imprisonment in the State Prison, at
Charlestown, with hard labor, the first day to be passed in solitary
confinement.

Sign here, little girl

In a vestige of British common law to colonial law, Massachusetts still differentiates between types of contracts it allows married minor women. As in other states, a contract with a minor is not valid or binding. The exception as defined in the following Massachusetts law is for a female minor who marries. Once married, she can become an agent for selling real estate that she and her husband own in common.

Chapter 189: Section 6 Effect of signature of married minor woman
The signature of a married woman who is a minor affixed by her to any instrument relating to the conveyance of land of her husband shall have the same effect as if she were of full age.

FIFO

Cynics can reasonably point out that Massachusetts was the first state to institutionalize slavery and was among the first to forbid interracial relations and marriage. Also, anti-slavery only took root here when it was obvious that slaves were did not make economic sense without large farms.

Yet, Massachusetts was the first to repeal its prohibition on interracial marriage, in 1843. It was over 105 years until California overturned its similar laws. While such laws were no longer enforced, they remained on the books in the United States until June 1999, when Alabama finally repealed the last one.

More Dancing

Yesterday, courage failed or caution prevailed, depending on your view. Three same-sex married couples dropped their suits challenging the Defense of Marriage Act (DoMA). Their attorney, Ellis Rubin, in Florida figured this was not the time to gamble with the conservative U.S. Supreme Court. This followed a strategy conference with the director of the ACLU Lesbian and Gay Rights Project.

His case was considered weak in that his clients traveled to Massachusetts or Canada for marriages. When they returned to Florida, they sought legal recognition of their status. A federal judge there recently dismissed two cases. This followed U.S. Supreme Court's refusing to hear a challenge to Florida law prohibiting adoptions by homosexual couples, even though the state allows them to be foster parents.

Equality Campaign Executive Director Robin Tyler said her organization would work more at the state level, trying to change laws. A statement on the Website includes her comments:

The couples involved in the legal cases, Rev. Nancy Wilson and Dr. Paula Shoenwether, who were married in Massachusetts, and Rev. Phyllis Hunt and Vilia Corison, married in Canada, were very courageous in seeking their Federal equal rights in Florida, a state which is years behind in extending civil rights to their very large lesbian and gay population.In the harshest of times, these couples stepped up to resist, in the harshest of states.

More Colonial Options

The basis for modern Massachusetts marriage and social-relations law is the colonial versions. In 1642, fornication could lead to forced marriage. The Bay Colony law included:

It is ordered by this Court and Authoritie therof, That if any man shall commit Fornication with any single woman, they shall be punished either by enjoyning to Marriage, or Fine, or corporall punishment, or all or any of these as the Judges in the courts of Assistants shall appoint most agreeable to the word of God. And this Order to continue till the Court take further order.

Cheap Moral Outrage

$30 was more meaningful at one time in Massachusetts. For the unmarried that is maximum fine for fornication. Commonwealth law Chapter 277: Section 39 defines that as "Sexual intercourse between an unmarried male and an unmarried female."

That seems to let homosexuals off the hook. Also, apparently if either offender is married, he or she hops from fornicator to adulterer.

However, the penalty for being convicted is not too onerous.

Chapter 272: Section 18 Fornication
Whoever commits fornication shall be punished by imprisonment for not more than three months or by a fine of not more than thirty dollars.

One must wonder how flagrant the violators would have to be to face this charge, and whether anyone enforces this law today.

States Rights and Rites

The first PING! of interstate same-sex-marriage court sniping was heard yesterday. In Tampa, Florida, U.S. District Judge James Moody refused to force Florida to acknowledge the Massachusetts marriage of a lesbian couple. Lawyers and observers on all sides expect this fight to go to the U.S. Supreme Court and for same-sex couples to lose such decisions in lower courts on the way. (The case is Wilson v. Ake. )

Moody's decision includes:
In short, plaintiffs' argument is that, given their recent "civil rights revolution," the United States Supreme Court is likely to declare that same-sex marriage is a fundamental right that is protected by the Constitution.

Plaintiffs are asking this court to create such a fundamental right immediately, before the Supreme Court revisits the issue of same-sex marriage. But that is not this court's role. This Court is bound to follow the precedent established by the Eleventh Circuit Court of Appeals and the United States Supreme Court.

None of their precedents acknowledge or establish a constitutional right to enter into a same-sex marriage.

The couple is a minister, Rev. Nancy Wilson, and a photographer, Paula Schoenwether. After 27 years together, the Bradenton, Florida, couple wed on July 2, 2004, in Provincetown, Massachusetts. Upon returning home, they sued for recognition of their status. Florida has a one man/one woman marriage law.

The Boston Globe cited Northwestern University law professor Andrew Koppelman, law professor at Northwestern University as saying, "The tougher challenges will come from same-sex residents of Massachusetts who wed and then move out of state or are traveling in other states and seek recognition of their marriages."

Moody's decision reads in part:
Adopting plaintiffs' rigid and literal interpretation of the full faith and credit [clause] would create a license for a single state to create national policy....Florida is not required to recognize or apply Massachusetts' same- sex marriage law because it clearly conflicts with Florida's legitimate public policy of opposing same-sex marriage.

Here a Vote, There a Vote

It seems most key U.S. Supreme Court decisions are 5-4. The past presidential popular vote was very close. So, perhaps it won’t surprise anyone that the vote to put the same-sex marriage amendment on the ballot in Massachusetts is unsettled.

In today’s Boston Globe, an analysis comes slightly short of saying the votes are no longer there to provide the necessary 101 out of 200 legislators to put the question to a 2005 constitutional convention and subsequently to voters in 2006. It is a typical Globe hedging assessment. May, might and could figure prominently.

Same-sex marriage opponents in and out of state had hoped for a red-state style backlash. What they got on the first vote last March was 105 for the amendment and 92 against. Since then:

• Two anti-gay marriage representatives lost to pro candidates.
• Three antis have resigned from the House
• Two new senators are likely to favor the amendment
• Three new representatives and one new senator are likely to oppose the amendment.

Until the incumbents and new lawmakers re-declare or declare, a vote outcome is unsure. The Globe figures it is a narrow defeat for the amendment.

If that happens, Massachusetts will continue to permit same-sex marriages. Opponents have an increasingly harder sell in light of the recent experience. As House Speaker Sal DiMasi said, “Gay marriage has been in effect for a long time, and the world hasn’t collapsed.”

Ex-Tsk Tsk

Adultery is still a crime in Massachusetts. The criminal provisions of the commonwealth's marriage law doesn't cut divorced partners any slack.

Chapter 208: Section 40 Cohabitation after divorce
Persons divorced from each other cohabiting as husband and wife or living together in the same house shall be held to be guilty of adultery.

And the penalty for such criminal activity (although rarely brought to bear) is:

Chapter 272: Section 14 Adultery
A married person who has sexual intercourse with a person not his spouse or an unmarried person who has sexual intercourse with a married person shall be guilty of adultery and shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than five hundred dollars.

Stringy Solemnizations

Massachusetts marriage solemnizations are definitely the way for a cheapskate to go. Solemnizers are limited by law in fees.

State law (Chapter 262: Section 25) caps the fee at $75 in the solemnizer's town or $125 anywhere else in the commonwealth. If the solemnizer provides flowers, music, a photographer, the location or unofficial marriage certificate for the couple to leave with, the solemnizer pays for those out of pocket and gets no reimbursement.

Solemnizers can charge extra for:
...prenuptial counseling conferences, rehearsals, and other special requests by the couple whose marriage is being solemnized; provided, however, that the amount of these additional charges must be disclosed in writing to the couple whose marriage is being solemnized at least forty-eight hours prior to the rendering of these services.

Law Bender by Gender

One wonders whether states that permit same-sex marriage have to fine-tune related laws. For example, the incest/relationship affinity laws here presently read:

Chapter 207: Section 1. Marriage of man to certain relatives
No man shall marry his mother, grandmother, daughter, granddaughter, sister, stepmother, grandfather's wife, grandson's wife, wife's mother, wife's grandmother, wife's daughter, wife's granddaughter, brother's daughter, sister's daughter, father's sister or mother's sister.

Chapter 207: Section 2. Marriage of woman to certain relatives
No woman shall marry her father, grandfather, son, grandson, brother, stepfather, grandmother's husband, daughter's husband, granddaughter's husband, husband's grandfather, husband's son, husband's grandson, brother's son, sister's son, father's brother or mother's brother.

Logically, the legislature would tweak these. Are they waiting until after 2006 to see if there is a state constitutional amendment?

Clever These Americans

I hadn't thought in those terms, but the (Southern) Baptist Press quotes a Princeton University law professor, Robert P. George, as saying that where same-sex marriage becomes legal, churches may have to perform these ceremonies or risk losing their tax-exempt status. Doubtful, very, very doubtful... Every legal indication is that freedom of religion trumps this, much as churches can still discriminate in hiring and keep their tax exemptions.

Of course, in Massachusetts, there is still a clear distinction between religious and civil ceremonies, as there has been from colonial times. This is clearer and cleaner in Massachusetts, but implicit elsewhere. U.S. clerics have never had to perform any marriages they oppose.

Bastardy Laws

Massachusetts is one of the states with definite ideas about legitimate offspring. To wit, if the parents' marriage is legally void:

• Because of incest (consanguinity or affinity between the parties), any offspring are illegitimate. (General Laws, Chapter 207, Section 15.)
  
• Because either parent is to young to have legally married, the kids are legitimate. (General Laws, Chapter 207, Section 16.)
  
• Because either parent is insane or an idiot, any issue is legitimate. (General Laws, Chapter 207, Section 16.)
  
• Because of the divorce oops, when one parent discovers after the fact that a former marriage was still legal (but it was an honest mistake), the children are legitimate. (General Laws, Chapter 207, Section 17.)

Nervous Colonials

While Massachusetts has long had a reputation as a very liberal state, it is only deceptively and sporadically so. For example, even before the Revolutionary War and into the Civil War, Massachusetts was a leader and key player in slavery. With Rhode Island, it was one of the first colonies to import and sell slaves. Later when the scale of New England agriculture did not support the economics of slavery, Massachusetts provided the ships, captains and crews that kept the triangular slave trade in business.

Yet, it also has the reputation as a hotbed of abolition. Even here, it depended on whether you profited from the slave trade. One anti-slavery leader, for example, the Federal Street Church's Rev. William Ellery Channing, did not make his abolition speeches from his pulpit. This founder of American Unitarianism had go to other churches and public halls for that. The board of his church (which later became the Arlington Street Church) forbade him from discussing slavery.

During the colonial period, Massachusetts was not the first to pass laws against interracial marriage. That distinction belongs to Virginia, which passed the first in 1691. "(T)he punishment was banishment from the community. By 1750, Maryland, Massachusetts, North Carolina, Delaware, Pennsylvania and Georgia passed similar laws."

The Massachusetts version included a whiteness test. A white person would marry someone with one black and three white grandparents.

Put Asunder

"The first American couple to divorce obtained their decree in 1639 from a Puritan court in Massachusetts. Anecdotal evidence indicates that untold numbers of other colonists simply deserted their unwanted or offending mates."

Divorce: An American Tradition, Glenda Riley, Oxford University Press, 1991, pp. 3-4. (The University of Nebraska Press reissued this book in 1997.)

The History Channel claims the later date of January 5, 1643, and provides these details:

In the first record of a legal divorce in the American colonies, Anne Clarke of the Massachusetts Bay Colony is granted a divorce from her absent and adulterous husband, Denis Clarke, by the Quarter Court of Boston, Massachusetts. In a signed and sealed affidavit presented to John Winthrop Jr., the son of the colony's founder, Denis Clarke admitted to abandoning his wife, with whom he had two children, for another woman, with whom he had another two children. He also stated his refusal to return to his original wife, thus giving the Puritan court no option but to punish Clarke and grant a divorce to his wife, Anne. The Quarter Court's final decision read: "Anne Clarke, beeing deserted by Denis Clarke hir husband, and hee refusing to accompany with hir, she is graunted to bee divorced."

Road to Rhode Island

Apparently seeking clarity rather than conflict, a married lesbian couple requested that a Rhode Island school system extend health-care benefits to the spouse of a retired school teacher. The distance between Swansea, Massachusetts, where the couple lives, and Tiverton, Rhode Island, where one of them taught for 27 years is only 12 miles. However, crossing the state line takes them into the twilight zone of undefined laws and regulations.

Rhode Island doesn't forbid recognition of same-sex marriages performed in other states. It says nothing. Two Committee members favor extending benefits. The other is undecided.

The Tiverton School Committee turned to a state Superior Court for an opinion on whether it can extend the benefits. It asked Judge Stephen Fortunato whether the Committee has the right to extend the benefits as it would to other married couples. The Committee's filing to the judge cited Rhode Island's lack of clear policy for same-sex marriages.

Lynette Labinger is the ACLU attorney for Cheryl McCollough, the retired teacher. The Boston Globe quotes her as saying, "The only issue as far as we're concerned is the agreement between the school department and the union, which recognizes a marriage as long as it's valid in the state it's entered in." McCullough and Joyce Boivin married in June.

Meanwhile, in December, the Committee added Boivin to McCoullough's family health plan, but the women had to pay the extra $500 a month. They will get a refund if the judge rules in their favor.