The Thistle Volume 13, Number 2: Dec., 2000/Jan., 2001.


Straight from the Closet


Few topics affecting the homosexual community have gained as much recent attention from the corporate media as same sex marriage has. Everyone in the country heard about it when in 1996 a Hawaiian court ruled that refusing marriage licenses to same-sex couples is sex discrimination and that it violates the Equal Protection Clause of the Hawaii constitution. A smaller, but still widely reported event was when on December 20th 1999, the Vermont supreme court decided that the current law in that state discriminated unfairly against homosexual couples and thus ordered the State legislature to correct the problem with appropriate legislation which would allow gays and lesbians to marry or that would set up a parallel “domestic partnership” status to give gay and lesbian couples the right to register their relationship and receive the same rights as heterosexual couples. Again, at least in the New England area there was widespread coverage when on April 25th 2000, the Vermont governor signed a law into effect giving gays and lesbians the right to obtain civil union certificates.

What is often not reported, however, is the widespread attack that occurs throughout the country whenever the issue of same-sex marriage is raised. Since 1996, more than 80 anti-marriage bills have been introduced at the state level. In that time, more than 27 states have enacted anti-marriage legislation, and in 1996, Congress passed and President Clinton signed the ironically-named “Defense of Marriage Act” (DOMA). This bill defines marriage as “the legal union between one man and one woman,” and prevents same-sex couples from receiving survivor and pension benefits, tax breaks and other advantages married couples receive. It also authorizes states to deny recognition of same-sex marriages performed in other states, which is a clear violation of the U.S. Constitution’s guarantee that each state will give “full faith and credit” to the laws of other states.

The attacks on same sex marriage in particular, and the LGBT community in general are still, sadly, far from over. In this last election anti-lesbian and gay ballot initiatives went before the voters in many states. In Nevada and Nebraska citizens voted on constitutional amendments which would deny the recognition of marriages, civil unions, or domestic partnerships between people of the same sex. In Oregon voters had to decide whether to bar public schools from “encouraging, promoting, or sanctioning” homosexuality or bisexuality. There were also petitions circulated in four Michigan cities (Grand Rapids, Grand Ledge, Royal Oak, and Traverse City) to try and put measures on the November ballot to repeal local ordinances prohibiting discrimination on the grounds of sexual orientation and to prevent similar ordinances from being passed in the future. None of this, however, will be found in any national paper or heard on the nightly news. Nor are you likely to find any analysis of the history of this issue or of the debates within the LGBT community itself. To that end I will attempt to present here a brief introduction to the issues surrounding this topic.

The lesbian and gay community is an enormous group consisting of people from every conceivable age, race, religion, lifestyle, income, and opinion. This, of course, means that there is no single lesbian or gay opinion on same sex marriage. Some homosexuals argue that regardless of any individual’s desire to get married, the community as a whole should support official recognition of their right to do so. On the other hand, there are those who decry marriage as a sexist and patriarchal institution that should be avoided at all costs. Still others are enjoying a higher level of income than the average American and don’t feel constrained by a lack of marriage rights. Another subgroup doesn’t want to risk repercussions while others just doesn’t care one way or the other.

The movement by same sex couples to have their relationships recognized by the state began more than thirty years ago in the early 1970’s, when lesbian and gay couples began applying for marriage licenses, asking courts to allow one partner to adopt the other, as well as taking other steps to try and legally cement their relationships. The vast majority of these efforts failed. A few examples will serve to illustrate the bigotry these people faced from within the judicial system itself. In Baker vs. Nelson (Minnesota, 1971), a gay male couple argued that the absence of sex-specific language in the Minnesota statute was evidence of the legislature’s intent to authorize same-sex marriages. The couple also claimed that prohibiting them from marrying was a denial of their due process and equal protection rights under the Constitution. The court simply stated that “we do not find support for [these arguments] in any decision of the United States Supreme Court”. Two years later in Jones vs. Hallahan (Kentucky, 1973), a lesbian couple argued that denying them a marriage license deprived them of the right to marry, the right to associate, and the right to freely exercise their religion. The court refused to address the constitutional issues, stating that “the relationship proposed does not authorize the issuance of a marriage license because what they propose is not a marriage”. Finally, in Thorton vs. Timmers (Ohio, 1975), a lesbian couple was denied a marriage license, and the court concluded that “it is the express legislative intent that those persons who may be joined in marriage must be of different sexes”.

By the mid-1980’s, after more than a decade of defeats, the emphasis of those supporting same sex unions changed to seeking “domestic partnership” recognition for same-sex couples. The concept of domestic partnership was born out the realization that despite the fact that only an estimated 10% of American families are made up of a working husband, a stay-at-home wife, and children, our legal and social systems still provided benefits and protections based on that model. Domestic partners are unmarried couples (same sex or opposite sex) who live together and seek economic and non-economic benefits which are granted to their married counterparts. These benefits include things like health, dental and vision insurance, sickness and bereavement leave, accident and life insurance, death benefits, parental leave (for a child of your co-parent), housing rights and tuition reduction, and use of recreational facilities. In the early to mid-1990’s the desire to have the official recognition of marriage accorded to their relationships reemerged and many couples once again began applying for marriage licenses and suing their states when their requests were denied.

Only time and public pressure will determine if this decades old fight is to be won or lost, but one thing is clear: given the current rise in homophobic legislation and the insidious silence of this reaction, we must all be on our guard or else we as a community may one day lose everything that we have gained without even knowing it.



T O P

The Thistle Volume 13, Number 3: Dec., 2000/Jan., 2001.