by Patrick Flaherty
No sooner had the dust settled on a U.S. Supreme Court decision striking down laws criminalizing sex for gays and lesbians than a new decision from the Massachusetts Supreme Court came out: lesbian and gay couples could not only “get it on” in the privacy of their own homes without worrying about Big Brother, but they may soon go down to the local courthouse and get hitched. The November 18 decision from Massachusetts ruled in favor of same-sex couples who had sued the state for the right to marry. The court gave the Massachusetts legislature until May, 2004, to open its marriage laws to gay and lesbian couples. While the decision is limited to Massachusetts and must be implemented by a skeptical legislature, in all likelihood civil marriage for same-sex couples is here. The U.S. Supreme Court sodomy decision was about twenty years behind the times (most Americans were horrified to learn that the Texas couple in the case had been criminally convicted after being discovered by police in a private home, summoned under false pretenses by a disgruntled neighbor). The Massachusetts marriage decision, however, is visionary. Like early civil rights court decisions, it is generating passionate responses. Here in Wisconsin, politicians are stumbling over each other to prove that they are strong defenders of the “sanctity” of limiting marriage to straight couples. Some have gone so far as to say that the very foundation of civilization is threatened. Meanwhile, others in the progressive community scratch their heads at what they see as a rush to embrace a troubled, conservative institution, and resent the flashy drama accorded to the divisive issue of same-sex marriage at the expense of “real” social justice issues. Lest we forget that this political drama has a human face, it’s worth illustrating how this latest cultural war is waged on the backs of real people. Britt and Noel are a Milwaukee couple in their 30s who have been together more than 10 years. They had a commitment ceremony at their church in front of family and friends. In 1999, when Milwaukee created a domestic partner registry, they were the first to record their relationship, even though it conferred no legal rights. They adopted a son soon afterward, but because they can’t legally marry, the state of Wisconsin only recognizes one as the legal parent. While conservative opponents complain that marriage must be reserved for families with children, Britt and Noel are one of the one-fifth of gay couples and one third of lesbian couples raising children at home (according to an analysis of U.S. Census figures). Yet if something happens to the legally-recognized parent, their son’s bond with the other parent is in jeopardy. Britt is fortunate to work for an employer that offers domestic partner benefits, so like his co-workers he can cover his family on the group health plan. Unfortunately, unlike his legally married coworkers, Britt pays income tax on the value of the benefits. And unlike their married counterparts, if one were to die suddenly without a will, the estate would end up in probate and — will or not — be subject to inheritance tax. If Britt and Noel could access the legal protections of marriage, they could better protect their family. Their church, family, and employer all recognize them as a couple — only their government treats them as strangers. While their family is put at risk, opponents wage elegant arguments for maintaining marriage discrimination, with expansive references to God and history. One argument goes that marriage is a sacred institution reserved by God for a man and woman in order to procreate. Of course, marriage is allowed for all sorts of heterosexual couples without children, including the elderly, the infertile, and the just-plain-don’t-want’em. The bigger problem with this argument is that it sees marriage in only one dimension — marriage as religious sacrament. But marriage is also a civil legal contract. It is this aspect — the civil marriage license — that gay and lesbian couples seek, and not some church’s blessing. Indeed, religions should always be able to choose which marriages to perform. But society should also enjoy protection from any particular faith imposing its view of marriage as the sole legal definition. The supreme irony here is that the primary opposition to same-sex marriage comes from religious quarters, which acts like it owns the institution. But civil marriage has always been granted by the government in this country, and not by religions. Clergy may pronounce you “man and wife,” but until you have the marriage license from the courthouse, you are not legally married. When you divorce, you don’t return to the wedding chapel, but divorce court. And while some faiths don’t recognize divorce, ask anyone paying alimony whether they can get a religious exemption. This is not to disparage the important pastoral work that clergy do to promote marriage and loving, long-term commitment. It’s just that civil marriage is a secular contract, and states shouldn’t let religious arguments get in the way of a person’s most fundamental choice — who to love and marry. Others, like marriage-ban crusader State Rep. Scott Gundrum (R – New Berlin) are fond of arguing that marriage is a 7,000-year-old institution that has served humankind too well to tinker with. To argue that anything, let alone marriage, hasn’t changed in 7,000 years takes a certain kind of boldness, but then again, justifying why the government should decide who you marry requires an all-knowing confidence. Marriage has in fact been improved through the ages to be relevant to its users in endless ways, such as abolishing forced marriage, child marriage, and polygamy. Few married couples long for the type of marriages that their grandparents had (or even their parents), and fewer still desire the return of the marriages mere generations ago when women were the property of men. Indeed, until the 1967 Loving vs. Virginia decision of the U.S. Supreme Court, another marriage ban was the law in many places — that between couples of different races. Well-meaning opponents of marriage equality strike another argument. They concede that it is wrong for the government to deny some or all of the more than 1,000 rights and responsibilities of marriage to gay couples. The “call-it-anything-but-marriage” camp is ready to sue for peace in the latest culture war and settle for civil unions or domestic partnerships. Civil rights icon U.S. Representative John Lewis shared his historical sense of deja vu when he dismissed this approach in a recent Boston Globe piece: separate but equal. The question worth answering comes not from marriage-ban supporters, but from the growing bloc of Americans who support marriage equality: why not? After all, there is no limit on marriage licenses. Opening marriage to lesbians and gays won’t leave someone else hanging at the altar. And just about everyone would say encouraging long-term commitment for gays and straights alike is good for society. In-between solutions like civil unions might be a politically-necessary first step. To borrow a metaphor from segregation: a second water fountain is an improvement when you’re thirsting for rights, but it just leaves you wondering — why are the people in the first water fountain line so unwilling to share? Patrick Flaherty is a long-time resident of Riverwest. He is Director of Community Relations at the Milwaukee LGBT Community Center.