Marriage-go-round – same-sex marriage ballots defeated – Brief Article
John Gallagher
How long will gays and lesbians have to wait until they can grab the brass ring?
Without a doubt, two of the most bitter defeats for gay activists in 1998 were the losses on election day for same-sex marriage in Hawaii and Alaska. By overwhelming margins, voters in both states loudly announced their disagreement with gay marriage, in the process dampening the high hopes of many gay men and lesbians. What once looked like a slam dunk, particularly in Hawaii, now looks much more like an outside shot.
But the game is not over, lawyers insist. Seeing the prospect of married bliss, gays and lesbians won’t settle for anything less. Whether the wedding day comes quickly or slowly may depend on gay willpower as well as the luck of the political draw.
“Although the votes were an injustice and a setback we could have avoided, it does not in any way end our fight,” says Evan Wolfson, an attorney at Lambda Legal Defense and Education Fund and cocounsel in the Hawaii case. “As long as we don’t give up, I’m truly confident we’re going to win it. The only question is whether it’s on the decades-long plan or the months-and-years plan.”
Strictly speaking, the vote in Hawaii, where the marriage case is furthest advanced, did not ban same-sex marriages outright. Instead, the measure authorized the legislature to pass a constitutional amendment to that effect, performing an end run around the case pending before the state supreme court. However, when the legislature met in 1996, it was unable to come to any agreement regarding same-sex marriage, stalling over a proposed domestic-partnership plan. Democratic governor Ben Cayetano, who just won reelection, has thrown his support behind such a program as an alternative to full marriage rights.
The complicated situation in Hawaii was facilitated by the supreme court’s turtlelike pace. Having heard the state’s appeal of a lower court ruling clearing the way for same-sex unions, the court has had a year and a half to issue a ruling but has yet to do so. (On November 23 the court asked for additional arguments from lawyers on both sides of the case to determine if the election results have any bearing on the impending ruling.)
“One of the major disappointments is that the court didn’t rule in an expeditious fashion,” says Dan Foley, cocounsel in the case. “It’s our belief that if the court ruled a year ago, people would have seen that the sky didn’t fall, and we would have had a better shot at the ballot box.”
Indeed, if it hadn’t been for the ballot measure, Wolfson believes that the court would have issued a favorable ruling months ago. “I’m confident we would have had the breakthrough by the end of this year,” he says.
While Foley and Wolfson insist that the effort is not over in Hawaii, attention is now turning to Vermont, where the state supreme court heard an appeal November 18 in the case of three same-sex couples who have been denied marriage licenses. A lower court had dismissed their case a year ago, citing the procreational nature of marriage as grounds.
“At this point, Vermont is clearly in the position to be the first” state approving same-sex marriages, says Mary Bonauto, cocounsel in the case and an attorney at the legal group Gay and Lesbian Advocates and Defenders. It’s not a position, she acknowledges, that the state relishes. “There are many ways in which Vermont is not particularly interested in being a poster child, if only because that brings with it a certain amount of attention, including from our detractors.”
A local group called Take it to the People has promised to take any positive ruling on gay marriage to the legislature or to put it on the ballot for voters. “I feel very uncomfortable about redefining the definition of marriage to accommodate somebody’s sexual choice,” Mary Schroyer, president of Take It to the People, told The Washington Post.
Still, Bonauto says, “We’re hopeful that the court will be fair.” The questions from the justices during the November hearing were pointed for both sides, she notes. “This court was very well-prepared,” she says. She says the supreme court could return the case to the lower court for reconsideration or possibly trial, or could simply reject the state’s defense outright, clearing the way for same-sex unions. The court is expected to role sometime in 1999.
No matter what happens in Vermont, voters in California will be getting their say on same-sex marriage in March 2000. On November 17 the secretary of state there announced that a petition drive to put the issue on the ballot bad collected more than 482,000 valid signatures to qualify a “definition of marriage” initiative. The measure would allow only opposite-sex couples to marry and would deny recognition to same-sex unions performed elsewhere.
Given California’s media-driven market, the campaign promises to be a pricey one. However, Wolfson says that neither the cost nor the recent electoral losses could serve as excuses to mount a halfhearted effort. “You don’t always get to pick your battles,” he says. “California is enormously important in terms of the development of the law and the politics of this country. Rolling over, even more than losing, sends a message too, and it’s a message we can’t afford.”
Certainly, religions conservatives are gearing up for the long haul. In light of the election results, “it is clear that America is not–and may never be–ready for homosexual marriage,” says Jay Sekulow, chief counsel of the American Center for Law and Justice, a conservative legal group. Sekulow promises that his attorneys are ready to meet any challenge to existing marriage laws.
And while some activism may question the wisdom of sticking with the marriage battle after the magnitude of the losses in Hawaii and Alaska, Bonauto says the issue won’t go away. “Whether we win in the courts or not, people are going to continue to push because they are tired of waiting for their rights,” she says. “It may mean different means of going about it, but the question of whether marriage remains on the table is settled. It’s there to stay, until we win the same freedom everyone else enjoys.”
COPYRIGHT 1999 Liberation Publications, Inc.
COPYRIGHT 2000 Gale Group
