Volume 73, Number 50 | April 21 - 27, 2004

Gay rights: Is marriage really the final frontier?

By Larry Moss

This June the Village, and the world, will celebrate the 35th anniversary of the Stonewall Rebellion, widely considered the beginning of the modern gay and lesbian civil rights movement. With lesbian, gay, bisexual and transgender rights much in the news locally, nationally and internationally, it’s a great time to consider just how far we’ve come, and how far we have yet to go.

On the one hand, we’ve witnessed progress hardly imaginable in 1969, proudly out gays and lesbians successful in even the most establishment professions, positive images in much of the media and such widespread social acceptance that many gays and lesbians can lead lives substantially like anyone else, comfortably out to family, friends and in the workplace. In major metropolitan areas and even in many rural areas, it is almost impossible not to know openly gay and lesbian people.

Before 1961, all 50 states had outlawed sodomy. By 1976, only 24 states (plus Washington, D.C.) still had such laws, but the U.S. Supreme Court upheld their validity, observing that “proscriptions against that conduct have ancient roots.” By last year, only 14 states still had sodomy laws, and the Court reversed itself and struck down those remaining laws, holding that homosexuals are “entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.” This reversal of the Court’s position in only 17 years resulted from such widespread social change that a still very conservative Court came to see the basic rights of gays and lesbians in a new light.

On the other hand, progress towards establishing fully equal rights has been halting and incremental. It took many years to pass a simple nondiscrimination bill in the New York City Council, two decades before such a bill finally passed the New York State Legislature last year, and such legislation is nowhere near adoption in most states. Homophobia is deeply engrained in a substantial portion of the population, and nothing bars its free expression even in employment and housing discrimination in many areas.

Decades of trench warfare in the courts and the legislatures have carved out only certain limited rights for lesbian and gay couples and families, and domestic-partnership benefits are generally available only when employers choose to offer them and not as a legal right. Some 1,100 federal rights, benefits and privileges, and an additional 700 bestowed by the state, flow to heterosexual couples automatically upon marriage. Expensive legal work can secure a few of these protections for same-sex couples, but most are not available at any price.

Against this background of limited progress towards fully equal rights, the marriage revolution of 2004 is truly extraordinary. Beginning with the decision of the Massachusetts Supreme Judicial Court finding a constitutional right to equal marriage for same-sex couples in that state, and more dramatically with the marrying of thousands of same-sex couples by the city of San Francisco, the real possibility of full equal marriage rights looms large. Marriage rights offer the possibility of sweeping past the lengthy battles to establish small incremental advances, and make it possible for gay and lesbian couples and families to achieve essential and valuable rights in such areas as immigration, taxation, inheritance, adoption, insurance, Social Security, pensions, medical care, etc.

Marriage is the central organizing principle in society, and we in the lesbian and gay community will never be equal until we have equal rights to marry if we wish to do so. When we do secure the right to marry, we will have achieved substantial legal, political and social equality. I respect the feminist critique of the imperfections of marriage, and recognize that many L.G.B.T. people, like an increasing number of heterosexuals, may have no interest in exercising a right to marry. But given the absolute centrality of marriage as a social and legal institution, I think it would be idiotic to hold out for some theoretical restructuring of society, and essential to recognize that marriage must be THE fundamental civil rights objective for the L.G.B.T. community at this time.

It is also a battle I am confident we will win. In a magnificent recent editorial, The New York Times took a long view of the political, legal and social evolution likely to lead to nationwide acceptance of same-sex marriage. The Times envisions the defeat of the Federal Marriage Amendment, a long process of certain states establishing civil-union and marriage rights and finally federal intervention only to pull the laggard states up to the equality standards set by the leaders. We see substantial movement in this direction already. The demand by the L.G.B.T. community for equal marriage rights has advanced the concept of “civil union” status — radical when adopted by Vermont only a few years ago — to a widely accepted compromise position.

Acceptance of same-sex marriage varies more by age group than by political or religious affiliation — religious Republicans in their 20s are more likely to accept equal marriage rights than many otherwise liberal Democrats in their 70s. Knowing this, the dogmatic opponents of equal rights seek a federal constitutional amendment, to lock in the views of the modest majority presently opposed to same-sex marriage rights, so that when majority sentiment has swung the other way it will be exceedingly difficult to again change the Constitution to permit equality. This effort presently appears unlikely to succeed, but must be vigorously opposed until convincingly defeated.

Although the long-term trend is very positive, the excitement of the winter 2004 marriage revolution has abated, as state officials in California, Oregon, New Mexico, New Jersey and New York have sought to squelch local outbreaks of marriage equality, and the Massachusetts legislature has given first approval to a constitutional amendment barring same-sex marriage. Recent developments in New York have been particularly disappointing. Despite the urging of the City Council leadership, the New York City Bar Association and other legal authorities, the City Clerk has refused to apply the state’s current gender-neutral matrimonial law in a nondiscriminatory fashion and begin issuing marriage licenses to same-sex couples. The mayor of the city with the largest L.G.B.T. population in the world has not only refused to call for the nondiscriminatory issuance of licenses, but has even refused to simply state public support for the concept of equal marriage rights. A Democratic attorney general who claims to support equal rights has chosen an unnecessarily cautious reading of current law, finding an intended or implied proscription against same-sex marriage, despite the absence of any prohibitive language or controlling legal precedent, rather than calling for the application of the law on a nondiscriminatory basis as its own words clearly permit.

The tendency of public officials is to avoid brave action to advance still-controversial civil rights, and instead direct the demand for equality to the courts. Yet New York’s Appellate Courts are not especially progressive, and it would be a mistake to trust the courts, left to their own devices, to make the correct hard choices. The movement for equal marriage rights should continue in every possible local and political forum, through same-sex couples demanding the issuance of marriage licenses from towns and cities across the state, or marrying out of state and demanding recognition of their marriages here. So too should the demand for passage of equal marriage rights legislation in Albany, however unlikely, especially in the reactionary State Senate. The demand for these rights must be constant and highly visible. I still believe victory is inevitable, but the time and manner of that victory, and its achievement before new obstacles are erected and must be dismantled, depends on continued aggressive action.

After equal marriage rights there will remain plenty of need to continue fighting homophobia and enforcing rights to nondiscrimination, but the most central battles will have been won. Equal marriage rights are truly the last great frontier of the civil rights movement that began in the Village 35 years ago. We best honor our Village predecessors by completing their work today.

Moss is the Democratic State Commit-teeman for the 66th Assembly District and chairperson of the Reform Caucus of the Democratic State Committee. Moss wrote and introduced the resolution that committed the New York Democratic Party to equal marriage rights for same-sex couples in September 2003, and has called for the issuance of marriage licenses to same-sex couples under a nondiscriminatory reading of current New York matrimonial laws.

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