By Lisa Keen
It's hard to say who's winning, because the marriage war has erupted on so many fronts with such disparate results. But it's easy to see that, once again, the battles have escalated across the country.
In Connecticut, the state house and senate passed legislation last week to give equal benefits to gay couples through civil unions. After the state senate accepts a house amendment Wednesday, the bill is expected to be signed into law by a governor who was, until very late in the game, threatening a veto.
Also this month, the Oregon Supreme Court nullified 3,000 marriages of same-sex couples in Portland, saying the county that issued the licenses had no authority to expand the reach of state marriage laws.
Massachusetts held hearings this month on several marriage bills and, just weeks away from the one-year anniversary of the state issuing legal marriage licenses to same-sex couples, it's still anybody guess as to whether a proposed constitutional ban has a chance to reach voters in 2006.
And in Maine, gay activists are marshalling supporters to turn out for pro-gay marriage hearings triggered by an anti-gay legislator. The task is made even more difficult by the need to fend off a referendum on the state's newly passed non-discrimination bill.
The clearest loss for gay civil rights supporters this month was suffered in Oregon April 14, when the state's highest court nullified the marriage licenses of 3,000 same-sex couples. The licenses had been issued in early 2004 by Multnomah County, at the direction of the county's elected governing commission. But the governor directed the state registrar not to record the marriages, and the controversy quickly moved to the courtroom. Meanwhile, in November, voters passed a statewide constitutional amendment to recognize only those marriages between one man and one woman.
In invalidating those marriages licensed in Portland, the Oregon Supreme Court said that, while Multnomah County officials were "entitled to have their doubts about the constitutionality of limiting marriage to opposite-sex couples," marriage was, nonetheless, a matter of statewide, not local, concern. In a ruling that echoed the California Supreme Court ruling invalidating San Francisco marriages, the Oregon court said the county had no authority to extend the reach of the law. And, according to the seven-member bench, state law limited marriage to heterosexual couples even before the adoption of the constitutional ban.
Interestingly, the same Oregon governor who instructed the registrar not to record the Portland marriages also called this month for the legislature to pass civil union legislation. Just one day before the state supreme court ruling, Democrat Ted Kulongoski said he and a bipartisan group of state senators were introducing legislation to ban discrimination based on sexual orientation and to provide legal protections for same-sex relationships through civil unions.
On the other side of the country, the Connecticut legislature, too, was rallying to ensure that same-sex couples had at least the benefits of marriage by passing legislation that would enable such couples to obtain civil unions. Connecticut is poised this week to become the second legislature in the country to approve legal recognition of same-sex relationships. It will be the first to do so without being mandated by the state supreme court, as was the case in Vermont five years ago.
While this was a major advance forward in some respects, it was an uneasy victory in others. The discomfort for many comes from the recognition that civil unions are still a separate entity from marriage and that, in approving civil unions, the bill explicitly bans marriage licenses to same-sex couples. That, said activists who are pressing a marriage equality case in the Connecticut courts, treats gay couples unequally.
"The legislature hasn't ended discrimination," said Gary Buseck, legal director for Gay & Lesbian Advocates & Defenders about the Connecticut legislature's actions. "Civil unions are still a separate and inferior status," he said, and do not resolve the constitutional inequities raised in GLAD's lawsuit.
Connecticut State Rep. Mike Lawlor, one of the bill's chief sponsors, agrees in principle, but legally, he said, "in the eyes of the state, there is no difference between marriage and civil unions."
And in reality, he adds, "the votes aren't there for marriage, but they are there for civil unions." Opposing civil unions because they are not marriage, he said, "would be like not supporting the Emancipation Proclamation because it didn't include voting rights."
Lawlor said the bill would almost certainly pass the senate Wednesday afternoon and be signed by the governor, who has now pledged publicly to do so. The law would take effect Oct. 1.
Asked about a provision of the bill which seems to allow the state to recognize the relationships of same-sex couples legalized in other jurisdictions, Lawlor said there is "no clear answer" as to whether Connecticut would recognize Massachusetts marriages, except to treat them as civil unions.
Meanwhile, in Massachusetts, where GLAD won the landmark case that led to the issuance of marriage licenses to same-sex couples beginning last May, hearings were held on several marriage-related bills, including a bill that seeks to invalidate more than 4,000 marriages between same-sex couples licensed thus far in Massachusetts. The legislature is expected to soon take up a proposed constitutional amendment to ban marriage and establish civil unions for same-sex couples. The proposal passed the legislature last year but must pass again this year before it can go to voters for approval, in November 2006.
In Maine, activists are gearing up for hearings prompted by pro-gay marriage legislation introduced by a virulently anti-gay legislator.
On the national level, a subcommittee of the U.S. Senate Judiciary Committee held another in a series of hearings of witnesses testifying against marriage equality April 13. Republicans are hoping to use the hearings to rally support for a bill to amend the U.S. Constitution to ban marriage for same-sex couples.
"They're continuing to grind the meat up for their troops," said Evan Wolfson, head of the national Freedom to Marry Coalition, "but I think it's pretty clear the assault on the federal constitution is not moving."
The real fight for gays right now, he said, is in defending state constitutions. Eighteen states, thus far, have approved constitutional amendments to ban marriage for same-sex couples.
"We have to be vigilant against the federal attack – either by constitution or statutes," said Wolfson, "but we really need to put our effort into repelling these state attacks. We need to be seeing this as a long-term campaign in which we don't win every battle, but every battle is a chance to advance a larger message that moves the public along in understanding us."
