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MA, NJ Suits Help Blaze Trail for Gay Marriage
by Lynn McNicol
Three years after Vermont’s civil union law went into effect, lawsuits in Massachusetts and New Jersey appear poised to achieve same-sex marriage. An effort to ban gay unions in Massachusetts has been put on hold, and a similar proposed amendment to the U.S. constitution seems unlikely to succeed.
In New Jersey, there has been a “huge outpouring of support” in a series of town meetings concerning the lawsuit filed last year to legalize same-sex marriage, said Steven Goldstein, Lambda Legal’s New Jersey Campaign Director. More than 55 groups sponsored ten community meetings in support of the legalization of marriage between two people of the same gender.
Lambda Legal represents the seven gay and lesbian couples who filed the lawsuit a year ago, captioned Lewis et al v. Harris et al. The state has filed a motion to dismiss the case and Lambda has filed a response. Arguments will be heard this month, Goldstein said, adding the case is in the very early stages of litigation.
Advocates of same-sex marriage have a “good shot” in New Jersey, Goldstein said, “because the judiciary in New Jersey is fair-minded.” He cited New Jersey’s legalization of gay adoption of children (in 1997) and the case involving gay rights in the Boy Scouts.
The seven plaintiff couples have been together between ten and thirty years, and five of the couples have children.
Mark Lewis and Dennis Winslow, two Episcopalian pastors who have been together 10 years, said they want equal treatment from the government – not religious approval – according to a report from Lambda. “We get moral approval from our church and those who love us; what we need from our government isn’t approval, but equality in legal rights and responsibilities,” Lewis is quoted as saying.
In a friendly editorial by the Newark Star-Ledger, Cindy Meneghin, “a lesbian and mother of two” remembers being rushed to the hospital during a nearly fatal health emergency. “In the emergency room, the hospital staff barred her partner from the intensive care unit. She had the legal papers she needed, but she spent several minutes arguing their validity as Meneghin struggled to stay alive,” the paper reported.
Cindy and her partner Maureen Killian have been together 28 years and have a ten-year-old son and an 18-year-old daughter.
“How can it be that we have to pay the same taxes as everybody else but don’t get the same legal rights?” asked Karen Nicholson-McFadden, another plaintiff. She and her partner Marcye have been together 12 years and are raising a three-year-old son.
The New Jersey case would go a step beyond Vermont’s civil union law in that marriage is the ultimate goal. The legislature is also working on a domestic partnership law that would help not only gay or lesbian couples but other nontraditional family groups as well – an effort supported by Lambda and other gay rights groups. But marriage remains the goal.
“Marriage is such a huge legal institution, with so many legal protections attached, that the words ‘husband,’ ‘wife,’‘spouse,’ or some form of the word ‘marry’ appear in more than 850 separate provisions of New Jersey law,” Lambda noted.
An effort by conservative groups to join the state’s opposition to the lawsuit has been barred. In late March, Mercer County Assignment Judge Linda Feinberg threw out a motion filed by third parties, including the New Jersey Family Council and Sen. Gerald Gardinale, R-Berger, to join the defendants.
Feinberg ruled that “the groups did not have a legal right to formally oppose a lawsuit, and that the state could adequately defend itself,” according to the Hudson County (NJ) Jersey Journal.
Massachusetts Lawsuit Gets Supreme Court Hearing
In Massachusetts, another lawsuit, also filed by seven couples, received a hearing before the state’s Supreme Judicial Court in March. Filed in 2001 by New England’s Gay and Lesbian Advocates and Defenders (GLAD), Goodridge et al v. Department of Public Health also seeks the right of same-sex couples to marry.
GLAD is the organization that along with co-counsel Beth Robinson and Susan Murray won at least a partial victory in Vermont (Baker v. State, 1999), requiring the state’s legislature to equalize the status of gay and lesbian unions and resulting in the nation’s first civil unions law. Because of the state Supreme Court ruling, the lawsuit challenging traditional marriage statutes as unconstitutional was first held in abeyance, then withdrawn when the civil union legislation became law.
However, many same-sex marriage advocates still view civil unions as a partial victory, because civil unions are legal only within Vermont, and their status under reciprocity provisions of the U.S. Constitution is uncertain at best. Further, the federal government does not recognize civil unions as equivalent to marriage, excluding its participants from thousands of rights, benefits, and responsibilities.
Supporters of the Massachusetts lawsuit expect a decision from the court sometime this summer.
The seven Massachusetts couples have been in committed relationships between seven and 32 years. Four of the couples are raising children, and others face health dilemmas. Each couple has been denied a marriage license by local officials.
A recent poll reported by the Boston Globe shows half of Massachusetts residents favor gay marriage, and an even higher number favor civil unions. Almost all the Democratic presidential candidates favor civil unions, according to the Boston Globe including not only former Vermont governor Howard Dean, but also Rep. Richard Gephardt, Rep. Dennis Kucinich, Rev. Al Sharpton, Sen. John Kerry, and former Senator Carol Mosley Braun.
A proposed amendment to the Massachusetts state constitution to ban same-sex marriage received a hearing in April, when advocates from both sides testified for five hours before a legislative committee. However, the committee declined to take any action due to distractions of the state’s fiscal crisis, the Boston Globe reported. The amendment is sponsored by state Rep. Philip Travis [D-Rehoboth] and was drafted by the Massachusetts Family Institute. The earliest it could go to voters after approval by the legislature would be 2006, the Globe said.
Meanwhile, a proposed amendment to the U.S. constitution, while raising ire among supporters of same-sex marriage, is nothing much to worry about, according to Snopes, a web page that investigates and reports on internet hoaxes.
A group called Alliance for Marriage announced their proposed amendment in 2001, calling it The Federal Marriage Amendment. It would add two sentences to the U.S. constitution: “Marriage in the United States shall consist only of the union of a man and a woman,” and “Neither this Constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”
Several gay and lesbian rights groups are circulating email links to a petition against the proposed amendment. The Snopes urban legend-debunking website takes a look at the petition and its accompanying message that it is being “pushed quietly through Congress.” The proposed amendment was introduced in Congress last year.
Several factors, says Snopes, mitigate against its success, including the difficulty of passing and ratifying any meaningful constitutional amendment, such as the Equal Rights Amendment. Every amendment ratified in the last eighty years, except prohibition in 1933, has dealt solely with technicalities regarding national office-holders and voting regulations.
However, Congress passed the Defense of Marriage Act (DOMA), signed into law by President Clinton in 1996, which defines marriage as between a man and a woman and denies a same-sex couple having marriage or partnership rights in one state or territory the same rights in other states. This law would seem to already have accomplished the purposes of the Alliance for Marriage. While not an amendment to the U.S. Constitution, the Defense of Marriage Act is nonetheless federal law and apparently denies, for example, the right of a couple joined under Vermont’s civil union law to have their civil union honored outside the state.
For more information: www.lambdalegal.org, and www.glad.org. For the email message regarding a petition against a US constitutional amendment to ban gay marriages and its rebuttal, see www.snopes.com/inboxer/petition/marriage.htm.