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.