The Marriage Law Project at The Catholic University of America

TOP6NEWS - October 5, 2004

1-NEWS: Baton Rouge court hearing m amendment challenge today

2-NEWS: NJ clergy, coalition rally for m

3-NEWS: AR foster care case back in court

4-NEWS: Taking ssm on the road: 1st bus stop in Reno, NV

5-NEWS: NYC not prepared for implementation of dp contracts law

6-OP-ED: E. Wolfson gives ssm lessons

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1-NEWS: Baton Rouge court hearing m amendment challenge today

10/4/2004, 3:30 p.m. CT
The Associated Press
http://www.nola.com/newsflash/louisiana/index.ssf?/base/news-12/1096922387226471.xml&storylist=louisiana
BATON ROUGE, La. (AP) — Louisiana's new ban on gay marriage, approved by voters in an overwhelming September vote, faces a courtroom challenge by gay advocates here Tuesday who say it is illegal.

State District Judge William Morvant will hear the challenge at 10 a.m. It follows earlier attempts to throw the amendment off the September ballot. Those challenges were dismissed as premature, with courts ruling they could only be made after the vote.

It came in on Sept. 18th with some 78 percent of those voting favoring a constitutional ban on same-sex marriage, and its related prohibition against state recognition of same- and opposite-sex civil unions. The vote was part of a national groundswell against gay marriage, which followed last year's Massachussetts Supreme Court recognition of gay marriage.

The Louisiana Legislature pushed through the proposed ban in its session this spring; the proponents argued that unless it was put in the state constitution, a Louisiana court could, in theory, one day follow the Massachussetts example.

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2-NEWS: NJ clergy, coalition rally for m

Clergy unite to decry same-sex unions
Coalition gathers on the Statehouse steps to weigh church petitions, amendment drive
Tuesday, October 05, 2004
BY TOM HESTER
NJ Star-Ledger Staff
http://www.nj.com/search/index.ssf?/base/news-2/109695597458630.xml?starledger?ntr
A coalition of Protestant, Catholic and Jewish clergy and church activists vowed yesterday to oppose any attempt to legalize gay marriage in New Jersey.

With more than 120 clergy and activists gathered behind them on the steps of the Statehouse, leaders of the New Jersey Faith Alliance and the New Jersey Coalition to Preserve and Protect Marriage, said they are prepared to ask churchgoers to sign petitions opposing gay marriage and calling for an amendment to the U.S. Constitution that would prevent its legalization.

Two leaders criticized Gov. James E. McGreevey's August announcement that he was a "gay American," saying the gay rights movement should not be equated to the civil rights movement.

The Rev. David Ireland, senior pastor of Christ Church of Montclair, said marriage has deeply rooted benefits that have been recognized by government.

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3-NEWS: AR foster care case back in court

Arkansas Anti-Gay Foster Care Law Back In Court
by 365Gay.com Newscenter Staff
Posted: October 5, 2004 11:02 am ET
http://www.365gay.com/newscon04/10/100504arkAdopt.htm
(Little Rock, Arkansas) After a six-month delay a legal challenge to an Arkansas policy that prevents lesbians and gays and anyone living in a household with a gay adult from being foster parents resumed today.

"The state has put up nothing but outdated, baseless myths to justify denying Arkansas's foster children potential homes," said Rita Sklar, Executive Director of the ACLU of Arkansas which is fighting the law. "There may be a new witness taking the stand, but the state is going to be singing the same old song."

The trial began in March but was cut short after the state's only expert witness was killed in a car crash before he could testify. After being given time to find another witness, the state chose Dr. George A. Rekers, a founder of the conservative Family Research Council.

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4-NEWS: Taking ssm on the road: 1st bus stop in Reno, NV

Same-sex couples hold rally in Reno
Don Cox RENO GAZETTE-JOURNAL
10/4/2004 11:57 pm
http://www.rgj.com/news/stories/html/2004/10/04/82015.php?sp1=rgj&sp2=News&sp3=Local+News&sp5=RGJ.com&sp6=news&sp7=local_news&jsmultitag=news.rgj.com/news/local

Same-sex couples from California whose controversial marriages earlier this year were ruled invalid by the state’s supreme court stopped Monday in Reno on a cross-country trip to raise support that culminates Monday with a national rally in Washington, D.C.

“Those weddings in San Francisco took us a step toward social acceptance,” said Brian Davis, one of about 40 members of the Marriage Equality Caravan. “That’s what we’re talking about here, social acceptance.”

The men — some, including Davis, wearing tuxedos, and women, some wearing wedding gowns — stood in front of the downtown federal building and carried signs that said, “We all deserve the freedom to marry.”

“We can be completely open wherever we are,” said Davis, who spoke while standing next to his partner, Ted Guggenheim. “We will be completely free.”

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5-NEWS: NYC not prepared for implementation of dp contracts law

Equal Benefits Law; Hearing Into Police Activity During Convention; New Sexual Harassment Charges in the City Council
by Andy Humm in Gotham Gazette
October, 2004
http://www.gothamgazette.com/article/civilrights/20041005/3/1138
City Not Preparing Contractors for Compliance with Equal Benefits Law
The Mayor's Office of Contracts has yet to receive instructions on how to explain and enforce a major new law for those doing business with the city even though it goes into effect before the month is out. Mayor Michael Bloomberg's office refuses to say whether it will enforce the law.

As of October 26, 2004, the 2,600 businesses and non-profit organizations that do more than $100,000 worth of contracts with the City of New York must certify that they provide the same health and leave benefits to the domestic partners of their employees that they do to the spouses of their workers. If a contactor can't purchase domestic partner insurance from its carrier, it must compensate the employee who has a domestic partner.

I called the Office of Contracts in late September and the person answering the phone said, "We've been getting a lot of calls on this, but we haven't been given any direction on it." There is no information on the contract office's Web site. She suggested I call the City Council, "which passed the bill."

Councilmember Christine Quinn, the chief sponsor of the Equal Benefits Bill, said, "That is a completely ridiculous response. The law is clear. The executive has to implement it. But the mayor is opposed to it. We cannot take legal action until the date of implementation has passed. If that date comes and they have not done what they are legally bound to do, the Council has retained outside lawyers to take them to court. Sadly, I'm not surprised, though I am disappointed."

The Equal Benefits Law was passed by the City Council in May by a vote of 43 to 5 and vetoed by Mayor Bloomberg. The Council then overrode the mayor's veto overwhelmingly by a 41 to three vote (with four abstentions) in June, but Bloomberg said he would "probably" take legal action to block its implementation.

Jordan Barowitz, a spokesperson for the mayor, says "the city is still reviewing its options" with respect to enforcing the contract requirement. There has been speculation that either Bloomberg or a city contractor such as Catholic Charities would sue to stop the law from taking effect, although Msgr. Kevin Sullivan, the director of Catholic Charities who testified against the bill, did not return a call for comment on their plans on whether or not to comply with the law.

The benefits that contractors must equalize include health insurance, pension, retirement, disability and life insurance, leave policies, tuition reimbursement, legal assistance, dependent care insurance, moving expenses, membership discounts, and travel benefits. Any of those offered to the spouse of an employee must be offered to the domestic partner of an employee.

Bruce Millman, a labor and employment lawyer who advises many clients who are contractors, sent out an advisory (in pdf format) to his clients of the compliance date. While he said he was not "challenging" the law, his release stated that "these costs may be particularly difficult for small businesses" and that "the law will likely encourage couples who are living together to register as domestic partners because they will have a real economic incentive to do so."

Cynthia Goldstein, a San Francisco official who administers that city's 1997 law that served as a model for New York's, disputed speculation that the law burdened contractors. She said that it did not drive up contracting costs and that virtually all contractors complied, including the Catholic Archdiocese of San Francisco.

There is a clause in the New York law specifically for religious contractors that may have moral objections to co-habiting employees. It says that instead of covering a domestic partner specifically, the employee can name one other person of unspecified relation on his or her benefits policies. While that clause led to Agudath Israel, an orthodox Jewish organization with many city contracts, to drop its opposition to the legislation, it did not assuage Catholic Charities of the Archdiocese of New York, another big contractor, who has yet to announce whether it will comply with the law.

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6-OP-ED: E. Wolfson gives ssm lessons

Evan Wolfson gives Lavender Law keynote address in Minneapolis
October 04, 2004
By EVAN WOLFSON
Freedom to Marry
http://www.freedomtomarry.org/document.asp?doc_id=1937
September 30, 2004 speech to the National Lesbian & Gay Law Association's "Lavender Law" conference, NLGLA's annual gathering of attorneys, legal academics, and law students.

Marriage Equality and Some Lessons for the Scary Work of Winning
America in a Civil Rights Moment
One of the good things about my job is I have plenty of time on planes and trains in which to read.
Right now I'm reading the Library of America's anthology, Reporting Civil Rights. In two volumes, they've collected the journalism of the 1940's, '50's, '60's, and '70's, describing the blow by blow, the day to day, of what the struggles of those years felt and looked like... before those living through that moment knew how it was going to turn out.

Exhilarating, empowering, appalling, and scary.
That's what a civil rights moment feels like when you are living through it – when it is uncertain and not yet wrapped in mythology or triumphant inevitablism.

This year our nation celebrated the 50th anniversary of Brown v. Board of Education.
But what followed Brown was not the sincere and insincere embrace it gets today, but – in the words of the time –
• legislators in a swath of states declaring "massive resistance"
• billboards saying "Impeach Earl Warren," the then-Chief Justice who wrote the decision
• members of Congress signing resolutions denouncing "activist judges" (sound familiar?)
• and, of course, the marches, Freedom Rides, organizing summers, engagement, hard work, violence, legislation, transformations... pretty much everything we today think of as the civil rights movement – all after Brown.

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The Human Rights Battlefield of Marriage
You see, marriage has always been a human rights battleground on which our nation has grappled with larger questions about what kind of country we are going to be –

• questions about the proper boundary between the individual and the government;
• questions about the equality of men and women;
• questions about the separation of church and state;
• questions about who gets to make important personal choices of life, liberty, and the pursuit of happiness.
As a nation, we have made changes in the institution of marriage, and fought over these questions of whether America is committed to both equality and freedom – in at least four major struggles in the past few decades:

• We ended the rules whereby the government, not couples, decided whether they should remain together when their marriages had failed or become abusive. Divorce transformed the so-called “traditional” definition of marriage from a union based on compulsion to what most of us think of marriage today – a union based on love, commitment, and the choice to be together and care for one another

• We ended race restrictions on who could marry whom, based on the traditional “definition” of marriage, defended as part of God’s plan, seemingly an intractable part of the social order of how things have to be

• We ended the interference of the government in important personal decisions such as whether or not to procreate, whether or not to have sex without risking a pregnancy, whether or not to use contraceptives – even within marriage

• And we ended the legal subordination of women in marriage – and thereby transforming the institution of marriage from a union based on domination and dynastic arrangement to what most of us think of it as today – a committed partnership of equals.

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Patchwork
As in any period of civil rights struggle, transformation will not come overnight. Rather, the classic American pattern of civil rights history is that our nation goes through a period of what I call in my book, Why Marriage Matters, "patchwork."

During such patchwork periods, we see some states move toward equality faster, while others resist and even regress, stampeded by pressure groups and pandering politicians into adding additional layers of discrimination before – eventually – buyer's remorse sets in and a national resolution comes.

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Most important, as Americans –
• see the faces and hear the voices of couples in San Francisco,
• witness the families helped and no one hurt in Massachusetts and digest the reassuring way in which marriage equality is already finding acceptance there after just a few months,

• engage in conversations in every state and many families, chats with people like us and non-gay allies – hearts and minds are opening and people are getting ready to accept, if not necessarily yet fully support, an end to discrimination in marriage.

The Union a House Divided
In past chapters of civil rights history unfolding on the battlefield of marriage, this conversation and this patchwork of legal and political struggles would have proceded in the first instance – and over quite some time – in the states, without federal interference or immediate national resolution.

That's because historically, domestic relations, including legal marriage, have under the American system of federalism been understood as principally (and almost entirely) the domain of the states. 1

States worked out their discrepancies in who could marry whom under the general legal principles of comity, reflecting the value of national unity. The common-sense reality that it makes more sense to honor marriages than to destabilize them was embodied in the relevant specific legal principle, generally followed in all states – indeed, almost all jurisdictions around the world – that a marriage valid where celebrated will be respected elsewhere, even in places that would not themselves have performed that marriage.

States got to this logical result not primarily through legal compulsion, but through common sense – addressing the needs of the families and institutions (banks, businesses, employers, schools, etc.) before them. Eventually a national resolution came, grounded, again, in common sense, actual lived-experience, and the nation's commitment to equality, constitutional guarantees, and expanding the circle of those included in the American dream.

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Here are a few basic lessons we can cling to in the difficult moments ahead, to help us keep our eye on the prize of the freedom to marry and full equality nationwide, a prize that shimmers within reach.

Wins Trump Losses
Lesson number one – Wins Trump Losses
While we stand to lose several battles this year, we must remember that wins trump losses.
Wins trump losses because each state that ends marriage discrimination gives fair-minded Americans the opportunity to see and absorb the reality of families helped and no one hurt when the exclusion of same-sex couples from marriage ends. Nothing is more transformative, nothing moves the middle more, than making it real, making it personal – and seeing other states join Canada and Massachusetts will be the engine of our victory.

Losing Forward
Lesson number two – Even where we cannot win a given battle, we can still engage and fight so as to at least lose forward, putting us in a better place for the inevitable next battle.

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Tell the truths
Lesson number three – tell the truths.
Now, the principal reason we are going to take hits this year and lose many, if not all of the state attacks in November is because our opponents are cherry-picking their best targets and depriving the reachable middle of the chance to be reached. They have more of a head-start, more money and more infrastructure through their mega-churches and right-wing partners... and fear-mongering at a time of anxiety is easy to do. And, of course, historically, it is difficult to win civil rights votes at the early stage of a struggle.

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Truth 1 – Ending marriage discrimination is, first and foremost, about couples in love who have made a personal commitment to each other, who are doing the hard work of marriage in their lives, caring for one another and their kids, if any. (Think couples like Del Martin & Phyllis Lyon who've been together more than fifty years.) Now these people, having in truth made a personal commitment to each other, want and deserve a legal commitment.

Once the discussion has a human story, face, and voice, fair-minded people are ready to see through a second frame:
Truth 2 – The exclusion of same-sex couples from marriage is discrimination; it is wrong, it is unfair, to deny these couples and families marriage and its important tangible and intangible protections and responsibilities. America has had to make changes before to end discrimination and unfair treatment, and government should not be denying any American equality under the law.

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To go from a defeat in 2000 to partnership and all-but-marriage in 2004 with the possibility of marriage itself in 2005 – that's called winning.

Generational Momentum
Lesson number four – remember, we have a secret weapon: death.
Or to put it more positively, we on the side of justice have generational momentum. Younger people overwhelmingly support ending this discrimination.

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The Stakes
Why is it so important that we now all redouble our outreach, our voices, our conversations in the vocabulary of marriage equality?

• In part, because victory is within reach.
• In part, because we can and must move that middle now to make room for that generational momentum and rise to fairness.

• In part, because America is listening and allies are increasing.
• In part, because this is our moment of greatest peril.
• And, in part, because the stakes are so great.
What is at stake in this civil rights and human rights moment?
If this struggle for same-sex couples’ freedom to marry were "just" about gay people, it would be important – for gay men and lesbians, like bisexuals, transgendered people, and our non-gay brothers and sisters – are human beings, who share the aspirations for love, companionship, participation, equality, mutual caring and responsibility, protections for loved ones, and choice.

Yes, if this struggle were "just" about gay people, it would be important, but it is not "just" about gay people.
If this struggle were "just" about marriage, it would be important, for marriage is the gateway to a vast and otherwise largely inaccessible array of tangible and intangible protections and responsibilities, the vocabulary in which non-gay people talk about love, clarity, security, respect, family, intimacy, dedication, self-sacrifice, and equality. And the debate over marriage is the engine of other advances and the inescapable context in which we will be addressing all LGBT needs, the inescapable context in which we will be claiming our birthright of equality and enlarging possibilities for ourselves and others.

Yes, if this struggle were "just" about marriage, it would be important, but it is not "just" about marriage.
What is at stake in this struggle is what kind of country we are going to be.
• Is America indeed to be a nation where we all, minorities as well as majorities, popular as well as unpopular, get to make important choices in our lives, not the government, or a land of liberty and justice only for some?

• Is America indeed to be a nation that respects the separation of church and state, where government does not take sides on religious differences, but rather respects religious freedom while assuring equality under the law, or a land governed by one religious ideology imposed on all?

• Is America to be a nation where two women who build a life together, maybe raise kids or tend to elderly parents, pay taxes, contribute to the community, care for one another, and even fight over who takes out the garbage are free and equal, or a land where they can be told by their government that they are somehow lesser or incomplete or not whole because they do not have a man in their lives?

All of us, gay and non-gay, who share the vision of America as a nation that believes that all people have the right to be both different and equal, and that without real and sufficient justification, government may not compel people to give up their difference in order to be treated equally – all of us committed to holding America to that promise have a stake in this civil rights/human rights struggle for the freedom to marry.

And if we see every state, every methodology, every battle, every victory, and even every defeat as part of a campaign – and if we continue to enlist non-gay allies and voices in this campaign, transforming it into a truly organic movement for equality in the grand American tradition,

• we will move the middle,
• we will lose forward where necessary,
• we will empower the supportive,
• and we will win.
We are winning.
There is no marriage without engagement.
Let’s vote in November, get others to vote in November, and move forward in our work to win, working together, doing it right.