Meet the Couples Who Can't Marry

By Susan Paynter
Seattle Post-Intelligencer

These are the people we're afraid of if we felt reassured by this week's state Supreme Court ruling to uphold the ban on same-sex marriage.

These are the people the Defense of Marriage Act protects us against. They're the dangerous types who are threatening the institution by trying to get in on this thing we male-female couples must keep for ourselves.

Jay Porter and David Smith got married in Canada in May 2004. They've been together five years.

Jay's pretty traditional. He proposed on one knee, holding a ring in his hand, on a romantic Kihei beach on Maui.

(Gee. That's exactly where my own husband and I got engaged. But that must be totally different because we're a male and female married by a real Seattle judge.)

"By our second date, I was already pretty much a goner," Jay told me. "By the time he (David) went home with me to Oklahoma and my mother got hold of him, there was no turning back."

At the time, Massachusetts had not legalized same-sex unions. The only accessible place Jay and David could get married was in Vancouver, B.C.

"So we went to that city we loved to have a real ceremony and affirm our love for and commitment to each other," David said.

Jay's parents are evangelical Christians. Jay grew up hearing some pretty strong words against homosexuals, and that didn't make him want to jump out of the closet really fast, he said. He remembers feeling that his parents' "unconditional love" came with the asterisk (* so long as you're straight).

But, amazingly, his family "turned on a dime" when Jay and David got married.

They still worship within the same denomination, the Church of the Nazarene, although they now go to a church that doesn't make being anti-gay part of its agenda.

Jay's parents lost a few friends, but they kept their son and gained a "son-in-law." And the fact that Jay and David had an actual wedding ceremony helped everyone a lot, they say, including David's family.

The act of getting married where a government officially recognized it was important to them, David said. "It takes away the unusualness. We were making the same statement any other married couple makes. Our vows were no different from the vows our parents and other couples have said forever."

Sure, some people back home would have preferred that Jay marry a woman and live a lie, he told me. "I had always wanted to be married and finding David made that even more true."

Here's another nightmare pair for marriage protectionists:

Joyce Allen and Jessica Lynn have been together since 1992.

Both were raised Catholic but getting married in that church wasn't an option. So, in 1994, an ex-priest married them in the closest thing they could find -- a ceremony at a Quaker Friends Meeting Hall in Seattle.

That was emotionally fulfilling, Jessica said. But the pair still longed for something official. So, when same-sex unions were OK'd in Oregon, they headed for Portland in the same wedding dresses they had worn here.

"There are a few events everyone remembers for life," Joyce said. "Like the first man walking on the moon. For me, that day standing in that long line on a very busy street waiting to get married, with people driving by honking and waving, still gives me goose bumps."

In an understatement Jessica adds that, after rescinding its law, "It was a serious bummer when they (the state of Oregon) sent us our $60 back in the mail. Actually, it was horrible."

And then there's the scary James Phelps and Tim Baldwin, who've been a couple for 16 1/2 years -- ever since a friend introduced them in their hometown of Klamath Falls, Ore. (they now live in Vancouver, Wash.).

On their 15th anniversary they got married in the "other Vancouver."

Tim admits he wondered, after all those years together, what difference getting married would make. That night it hit him. He was really a part of James' family now, not just "the friend."

"Something about us having a public ceremony that was recognized by law brought a legitimacy to the commitment we'd made to each other," James said.

It mattered to their families, too. Until the wedding the families, who lived just one mile apart, had never met. Not that they objected to their sons' relationship. But, as with any family, the tradition of the event triggered something, pulling them together the way society has done for centuries.

"I don't think that part is much different for us than it is for a man and a woman," Tim said. And James added, "I feel more welcome now in Tim's brother's home. Since we've been married the family feels, 'Well, I guess this is going to last.' "

Of course the framed marriage certificate on the mantel isn't legal in this state. And, because of Wednesday's 5-4 ruling upholding discrimination based on sexual orientation, such certificates are little more than pretty paper.

"When I'm having a down day it feels like half the country doesn't want me here," said David, who is from Australia. "It doesn't make you feel very welcome."

Joyce and Jessica, too, admit to a feeling of foreboding. What if, as their parents age and need care, they must move to a state where their relationship, and their right to make decisions for one another, may well be challenged?

Sometimes, James said, it seems that great progress has been made. As a kid struggling with coming out, he never would have dreamed that marriage would be legal for him, anywhere, in his lifetime.

Still to have his marriage recognized by the state after 16 years would be good.

Now that won't happen any time soon. And it must be a relief to those bent on guarding against these barbarians at the gates of marital legitimacy that, at least so far, none of these couples has children.

According to this week's court opinion, "promoting procreation and encouraging stable families" is what our state's marriage law is all about. And, obviously, with only a total of 35 years of commitment between them, these folks could hardly be seen as stable.

Why We're Losing the Gay Marriage Battle

By Chris Crain
Washington Blade

It's truly the dog days of summer in the battle for marriage equality. This month alone, judges in six states — New York, Massachusetts, Connecticut, Georgia, Nebraska and Tennessee — have ruled against lawsuits brought by gay marriage supporters.

The worst defeat was in New York, where the state's highest court decided it was constitutional to exclude gay couples from marrying because there are rational reasons other than disapproval of gay relationships for doing so.

The justification cited by the court was protecting the welfare of children, who Judge Robert S. Smith said would best be served by a mother and a father. He acknowledged no research support for that conclusion, but argued "intuition" was enough.

Left unanswered by Judge Smith was the excellent question raised in dissent by Chief Judge Judith Kaye: Why exactly would heterosexual couples be less likely to have children in wedlock if homosexual couples were allowed to marry?

"There are enough marriage licenses to go around for everyone," wrote Kaye, answering her own question. "No one rationally decides to have children because gays and lesbians are excluded from marriage."

And the list goes on…

The highest court in Massachusetts famously ruled the other way on gay marriage a few years back. But even though the Massachusetts Constitution prohibits amendments intended to overturn court opinions, this month that same court said it won't stop an amendment that would do just that, turning back the clock to hetero-only marriage.

In Connecticut, gay couples can't marry but they can, like their not-so-distant neighbors in Vermont, enter into civil unions that include the same rights and benefits, but under a different name and set of laws. This month, a judge there said that was good enough, and ruled against gay couples suing under the simple idea that separate is inherently unequal.

That had to make gay advocates in California nervous, since in oral arguments this month the state defended its exclusion of gays from marriage with the same argument: that the state's domestic partnerships are good enough.

Georgia is a lot more conservative, of course, than New York, Massachusetts or Connecticut. But the state's supreme court has a fairly good gay rights track record. The U.S. Supreme Court upheld Georgia's sodomy law in the infamous decision of Bowers vs. Hardwick, but it was the Georgia Supreme Court that threw the law out — several years before their black-robed colleagues in Washington finally saw the error in their Bowers ways.

This month, however, the Georgia Supreme Court overturned a ruling by a lower court overturning a state constitutional amendment banning gays from marrying, which passed overwhelming as a ballot measure in 2004. The high court decided the amendment did not violate the Georgia Constitution's "single subject rule," even though it not only blocked gay marriage, but civil unions, domestic partnerships and other forms of legal recognition as well.

The scene was much the same in Nebraska and Tennessee, where courts brushed aside efforts to either undo a state amendment that had already passed (Nebraska) or block one from reaching the ballot (Tennessee).

Depressing common thread

The marriage lawsuits in these six states involve a wide array of legal issues and state constitutional provisions, and they were decided on very different grounds. But they share one common, depressing thread: The good gays lost.

It's only fair to ask why. If, as our advocates keep telling us, we have the better of the arguments on marriage, then what happened to the momentum we had in these lawsuits just a few years ago?

Back then, when the highest courts in Hawaii, Alaska, Vermont and Massachusetts considered the gay marriage question, we won. Have our conservative legal opponents come up with some dynamite new legal arguments that have caught our advocates flatfooted?

The answer is pretty much no. All in all, in the battle of the legal briefs, the arguments are the same and, allowing for the natural tendency to smoke our own dope, the gay couples have by far the stronger case.

No, we aren't losing marriage cases based on the merits. We are losing because the courtroom battle over marriage has been transformed from one about principles like equal protection and fundamental rights, into one about power.

We're taught in civics class that judges apply the law in each case free from
the pressures of politics. But of course that's not the case.

Whether they will say so or not, the No. 1 priority for almost all judges is to preserve their own authority. Faced with the choice of doing the right thing or losing that authority, they will find a way to duck the right thing — and the law is replete with ducking opportunities.

The way most judges see it, though they won't ever say it, there is no point to "doing the right thing" if their decision faces a veto from the people in the form of a constitutional amendment. Not only is it pointless to risk prestige and rule one way, only to see it reversed by amendment, but their authority to rule on countless other issues, including other civil rights cases and even gay rights cases, has been irreversibly undermined.

Look at what's happened on marriage. In both Hawaii and Alaska, the supreme courts ruled a decade ago that excluding gays from marriage was unconstitutional. Before the cases could be completed, both court rulings were overturned by constitutional amendments.

In Vermont four years later, the supreme court ruled the same way but cleverly put the issue back in the legislature's hands and telegraphed that they'd likely accept some other institution for gay couples, with a different name but otherwise identical. Civil unions were born.

The high court in Massachusetts defied the odds, striking down the marriage laws and later ruling that any institution other than marriage would be inherently unequal. Only an incredibly complex constitutional amendment process there has preserved those rulings from the people's veto, and this month's decision shows even our courageous champions in Boston can be cowed.

Almost half the states have since followed Hawaii and Alaska's lead, adopting constitutional amendments by ballot measure. Gay marriage supporters haven't even come close to stopping one.

In Georgia, after the lower court judge threw out the amendment there, the Republican governor threatened a special legislative session to enact a new amendment unless the Supreme Court expedited review and reversed the ruling. The leading Democrats seeking to unseat him this fall quickly agreed, despite the time and taxpayer expense it would involve.

Looking down the barrel of that political shotgun, is it any wonder the Georgia justices meekly complied, expediting review and unanimously reinstating the amendment?

The lesson is a depressing one but let's at least learn it: Either we win the freedom to marry in the legislatures or we must at least make our court victories stick. Because only the rarest of judges will rule our way if it means jeopardizing their own authority.

Aging in a Time of War

By Joan Nestle
(From her talk at SAGE (Senior Action in a Gay Environment), New York City, May 16, 2005)

I now live under a different sky since last we met, walk different streets: Melbourne’s West Brunswick streets that are lined with old workers’ cottages turned into family homes, with grey green slivers of gum tree leaves above my head and the red and green flashing wings of King parrots lighting up the sky. The houses here are made of wood, mostly, and sit low on their lots of land—no basements, no concrete slab, just the old stumps, buried deep in the clay, holding up their burden of house. Small gardens front the streets, marked by longings for other worlds—the original lands of our neighbors—Calabria, Hong Kong, Chile, Vietnam. Tiny hot red peppers and purple salvias, walnut, olive, lemon and fig trees carry their histories of scent and fruit to this older island continent. Red kangaroo paws and yellow wattle, pepper trees and banksias, the native flora share their sun with them and even more, the precious root water of this arid land. And I, too, am given life by this intermingling of yearnings.

When I come to New York now—and this is my second visit since my world changed, since the gritty streets of Manhattan, the grit I have loved for forty years and more, fell away in a flood of love, fear and the most mundane thing of all, a landlord’s greed—I have to reorient myself. The streets still teem with conversations, some spoken, others not, with workers and owners and sellers and the homeless who sleep in neighborhoods in which they could never afford to live, all the vitalities and losses that are the city’s breath; but now I am part of the stream of impermanence and I turn to my comrades’ faces, their New York faces, to give me purchase for the weeks I am here. Leni, Linda and Dawn, Deb and Teddy, Naomi and Eva, Liz and Bobbi, Marcia and Liza, Jonathan, to your faces, and to all of you gathered here, my comrades—I will not say “family” because of the corruption of that concept by the conservative political and cultural forces that are the greatest source of my despair in this my 65th year, because the concept of family—like that of “nations,” “borders,” like “gender,” like “race,” like “faith,” like the very concept of “home” itself—are orthodoxies I want to use all my life’s last energies to question and, in so doing, change what some think “old” should be, what being a citizen of the world is.

I have only a month in which to take hold here again, to be part of the immense and complex history of New York. Before I left Melbourne’s softly beginning winter, I thought what must I do to touch the life of my past life here, and two sites came to mind: the old wooden dining room table that had been the heart of the Lesbian Herstory Archives when it was in my 92nd Street apartment and a public meeting place at the LGBT Community Center on 13th Street, in the company of faces that have been known to me for so many years. We arrived on Sunday night, May 1st and after recovering from the 21 hours of flight and time changes, I made my way to the Wednesday night coordinators’ meeting of the Archives collective, sitting once again at the old table, now in Brooklyn, but still pulling us all together. Food, papers, cups of tea, scraps of telephone messages, all pushed aside as we took our place—the image of the Knights of the Round Table just flashed in my mind—but we had no swords, no dynasties, no mythic operas waiting to be born—just lesbian women committed to making possible a more inclusive human history. Deborah and Paula and Maxine and Saskia, the old-timers who have kept so much going for so long, joined by faces I did not know—Lisa and Jane, the next generation of grass-roots archivists. As we sorted out the agenda, reported on the accomplishments of the book group—all our holdings now on the computer, from comic books to self—made poetry collections and all the wonders in between, as we recognized the death of two women in the New York community—Nancy Johnson, the printer who published our first Archives’ poster, and Marge Barton, an activist who kept organizations like the 1970s and 80s Gay Women’s Alternative alive—I felt the wonder of our own histories, the 60s and early 70s, those times of re-visioning that put such undertakings in our heads—without money, without cultural or political permissions, those times so reviled now by the Right, the would-be conquerors of collectivist possibilities.

And now I am at my second port of call, this public room, in this Center of our own making, to share our words on being queer and aging in this time of war. Old and war, old and killing, old and the young dying, old and the closing down of dissent around us, old and a right-wing youth intent on consolidating their powers, old and progressive youth refusing the weight of the Right’s deadly certainties, old and queer and worrying about housing and health care, about generations brainwashed into thinking one generation must lose social securities for another to have them while money washes over the State like an oil spill, old and watching the sparkling complexities of secular thinking dim in the fog of religious nationalisms, old and watching terror become the politics of unity, old and with our bodies often weakened just by time and illness, we watch torture become a national legal procedure, we listen to debates over how much body breaking is allowed in an illegal patriotic jail.

Aging in a time of war is to feel the very real grasp of history in our hearts. We have seen wars, we have witnessed how manipulated national terrors can make sane people accept the murder of their children and their children becoming murderers, how decades of alternate visions can be emptied of meaning, becoming the cause of all things bad. Right-wing columnists call us intellectual thugs, call us the chattering classes because we talk about ideas and we dream of other ways of being human, other ways of being American. We are the new aging enemies of this State. Let us not betray what we have seen, let us in our older years speak for complexity, not cheap safeties. I know that aging is not an answer to anything, and that is one of its wonders. This body knows its luck—for 65 years it has had enough to eat, a place to live, medicine to take, books to read, breasts to touch, students to teach and learn with, ideas to tumble in and moments of human solidarity where old and young spoke “no” to a ruthless and certain State. Old and queer and full of questions, but connected to historical possibilities, to knowledges that hint that Bush and Rumsfeld and Rice and Cheney will fall victim to the very orthodoxies they have empowered. Aging in a time of war is to watch armor and rockets deny what we know about the preciousness of flesh.