20.
And Now It Is Law
January 2004
On Monday, January 12, my partner, Richard, and I stood among a crowd of a hundred or so outside the office of the New Jersey Governor, Jim McGreevey. We were waiting to go into the governor's conference room for an historic event - the signing into law of the New Jersey Domestic Partnership Act.
Shortly after 1 p.m., the governor's aides opened the doors and we all crowded into the conference room. As a boy, I had been in this room many times when my father was acting governor, and I pointed out the desk where I'd sat when I was 6, and showed Richard the portraits of the governors whom I'd met at one time or another. Needless to say, we were overwhelmed not so much by the grandeur of the room but by the gravity of the occasion and the events of the prior week. My home state was about to convey legal recognition on our relationship. How far we have come, I thought, and at the same time, how much farther we have to go.
A week before, the call went out on a list for New Jersey gay and lesbian lawyers - the New Jersey Senate was going to consider the Domestic Partnership Act on Thursday, January 8, and the vote in the evenly-divided Senate was going to be close. There were only 18 yes votes committed and 21 were needed for passage. For the remainder of the session, the 40-seat Senate was evenly divided between Republicans and Democrats and so we needed to get at least a few Republicans on board. Would any of us be able to go to the State House on Thursday and lobby those Senators who were undecided? Would we be willing to write and/or call various Senators to express our support for the bill?
That day, I called my Senator, a Republican who was opposed to the bill, and told the staffer who answered the telephone that I lived in the Senator's district and I supported the Domestic Partnership Act. Looking over the Senator's biography on-line, I also realized that his father and mine had been leaders of the New Jersey legislature in 1958. I wrote the Senator an email, not knowing whether he would even read it, reminding him that our fathers had often cooperated on legislation that was good for New Jersey, despite differing on party affiliations. I expressed my father's support for the bill and I closed with a personal appeal,
New Jersey has often led the rest of the US in its recognition and support of human rights. I ask you to consider supporting this bill, as a constituent, and as one who is in a committed relationship of over 15 years.
I also sent an email to my partner, asking him to call or email our Senator in support of the bill, which he did right away. Another email went out to extended family, asking for them to call or write in their Senators in support of the bill. Many of them, in turn, emailed their friends to ask for support for the bill.
Thursday morning, in full lawyer drag (suit, white shirt & power tie), I met up with a group of lobbyists from Lambda Legal, Stonewall Democrats, and the NJ GLB Coalition at the State Capital. These wonderful people are the real heroes in all of this for they have been working on compromises, rewriting the bill, lobbying the Governor and the legislature for many months. As a result of their hard work, the bill had passed the Assembly in December and had been sent over to the Senate over the Christmas break. Now, it was the Senate's turn.
The bill was to be voted on at 2 that afternoon, if it made it out of the finance committee. Several Republicans on the committee, including my Senator, had strong reservations about the bill and were on the record as opposing passage. Another Senator, a Democrat from my old town of Camden, refused to commit to the bill. Our job was to attempt to speak with those Senators as they came in and out of their meetings, and to try to convince them to either vote in favor or, at least, to abstain.
The first Senator to come out the door was Senator Thomas Kean, son of the former governor. We cornered him and he listened politely but continued to express his opposition, not to domestic partnership laws in general, which he claimed to support, but to the procedural maneuvering that had rammed the bill through the Assembly and now the Senate during a lame duck session. Unfortunately, we were unable to sway him, but I was impressed that he took a substantial amount of time to listen to us. I could not imagine a Texas Republican even deigning to speak with a group of queers, let alone expressing respect for our position.
Next up was my own Senator, Republican Leonard Lance who would become the Senate Minority Leader when the 2004-2005 legislative session began in a few days. When I introduced myself, he immediately remembered the email I'd sent him. We talked about the bill for quite some time, during which he expressed his reservations about the impact the bill would have on the state's budget. I told him I thought the costs would be well offset by the increase in revenue that would come from the many same-sex couples living in the New York or Philadelphia area who would now have an incentive to move to New Jersey. Senator Lance would not agree to vote for the bill, be he promised that he would not speak out against the bill on the floor and would most likely abstain rather than vote against it.
Finally, I met with Senator Martha Bark, a Republican woman who represents the district where my parent's had recently moved and who knew my parents well. She had some interesting objections to the bill, primarily that the bill did not extend domestic partnership to straight couples under the age of 62. I told her that there were parts of the bill that I was not satisfied with, either, but that these "bugs" in the bill could be worked out later, after the bill had passed. I must have said the right things to her because she later voted in favor of the bill.
After a quick lunch, our group headed up to the gallery overlooking the Senate floor to stake out some seats, and to do a little last-minute lobbying as the Senators came out of their party caucuses. The gallery began filling up with supporters of the bill - mostly gay or lesbian couples. There was a festive air to the group, coupled with an edge of concern as we all discussed the current vote count and wondered whether one Senator or another had changed their mind.
At 2 p.m., the Senate Co-President, a Republican, called the Senate to order and soon a quorum (two-thirds majority) was announced. First up were a series of bills that were uncontested. The bill was announced, the vote was quickly tallied on the electronic board, and the results were announced. Next up were the contested bills-those on which there was some controversy and on which the vote might be close. Several Senators got up to speak either for or against the particular bill that was under consideration, and the session began slowing down.
Finally, the bill number was called, and all of us sat up straight in our chairs. Would Senator Cardinale launch into a tirade against homosexuals? Who else would rain invective on us, when it came their time to speak? Did we have the 21 votes needed after all? The Co-President cautioned the packed gallery to keep quiet while the Senate considered the bill.
The Democratic Co-President, Senator Codey, rose to speak. He reminded the Senate that he'd agreed to sponsor this bill because it was the right thing to do. New Jersey, he said, had long been a leader in recognizing the civil rights of its citizens and he was proud to be voting for the bill and proud of the many people who'd expressed their support.
Then another Senator rose, a Republican, who said he'd originally planned to vote against the bill but had changed his mind. He urged his fellow Republican's to also support the bill. A third Senator spoke next, a Democrat. He said he was a life-long Catholic, but he rejected a letter from the Catholic Bishops calling on the Senators to vote against the bill. "I love my Church," he said, "but on secular matters, on legal matters, relationships between people it is not infallible." One more Senator rose and spoke glowingly in support of the bill and then it came time for the vote. Amazingly, only four Senators spoke about the bill and all did so in favor. Dorothy, I thought, we're not in Texas anymore.
At last, the Co-President called for the vote. As the green and red lights flashed on the board, I watched to see what the Senators I had lobbied would do. Senator Lance abstained. Senator Kean voted against the bill. And Senator Bark voted for the bill. The gallery broke into applause when the yes votes hit the 21 mark, and by the end of the vote, 23 Senators had voted in favor of the bill, including a number of Republicans. 9 Senators voted no, and 8 abstained. All of us in the balcony hugged each other, many in tears. TV cameras and lights swept over the crowd as reporters asked questions.
So now there we were, four days later, standing with a crowd of supporters, news cameras turning, as various members of the legislature gathered around the podium. Then the Governor entered the room and he smiled and spoke briefly about this historic occasion and New Jersey's commitment to all of its citizens. He called on several gay activists to join him at the desk, then with a flourish, signed the bill, saying, "Now it is law."
Afterwards, Richard and I walked around the State Capital, admiring the marble and the paintings hanging on the wall, glowing in the pride of being valued in our own state. We walked upstairs to the gallery overlooking the Assembly, and I showed him my father's photograph on the wall with other past Speakers of the Assembly. So much has changed in our lifetimes and there is so much left to do. I remarked to Richard how impressed I was at the lack of rancor in the discussions about the bill.
The bill isn't perfect and it doesn't go nearly as far as the Vermont civil union bill. But it's a good start and one which will help straight people see that recognizing gay couples will not destroy their marriages. The challenge to the marriage laws in New Jersey continues, as it should, with an appeal to the New Jersey Supreme Court. We wait to see what the Massachusetts legislature will do in the the 5 months they have remaining on their court deadline. We will all need to be on our guard against the passage of an amendment to state and federal constitutions prohibiting our marriages. But for the moment, it's OK to bask in the glow.
21. Valentine's Day
February 2004
The old Chinese curse,
May you live in interesting times,
came to mind this past Valentine's day weekend as I read about the lines of people being married by the City of San Francisco. This past years has become an interesting time for gay civil rights. From the striking down of US sodomy laws to the legalization of gay marriage in Canada and then Massachusetts. It must seem to straight people that we have come very far in a very short time. Those of us who are gay, however, know that these rights have been a long time coming.
There was a particularly good article in the New York Times on February 19 profiling the Mayor of San Francisco, Gavin Newsom. He decided to order the County (San Francisco is a city and a county), to begin issuing marriage licenses as a result of attending Bush's State of the Union Address. After listening to Bush speak against same-sex marriage, Mayor Newsom thought to himself,
This is not the world I grew up aspiring to live in, that he was talking about. I just found some of the words divisive.
Upon his return, he became convinced that he had a moral obligation to grant these licenses.
I fully expect that the over-3,000 licenses now granted in San Francisco will be declared void. But for a short time, over 3,000 same-sex couples have a marriage license. As Mr. Newsom said,
I just say to the president, ‘Come out and meet with the three-plus thousand couples that have committed themselves to one another, committed to a long-term loving relationship with equal status, the same status that he and his wife are afforded. And recognize the spirit and the pride that comes with that.’
With all that's been going on, however, it is easy to lose focus on some of the other legal issues that continue to effect our community. Despite the victory in the Supreme Court striking down US sodomy laws, several states still try to limit our right to love.
Shortly after the Lawrence decision struck down the Texas sodomy laws, I mentioned the case of Matthew Limon, the 18-year-old Kansas man who was sent to prison for 17 years for having consensual sex with a minor.
Kansas law makes any sexual activity involving a person under 16 illegal. The 1999
Romeo and Juliet
law, however, provides lesser penalties for consensual sex when one partner is 19 or under and the other partner's age is within four years. Convicted of sodomy for having sex in 2000 at age 18 with a 14-year-old boy, Matthew R. Limon was sentenced to more than 17 years in prison. Had Limon's partner been an underage girl, he could have been sentenced at most to one year and three months in prison.
Limon appealed the case to the US Supreme Court, arguing that the law singled out homosexuals for disparate treatment, allowing them to be sentenced to much greater punishment. Several days after the
Lawrence
case, the US Supreme Court directed the Kansas Supreme Court to
reconsider its decision in the light of the
Lawrence
decision.
Unfortunately for Limon, on January 30, 2004, in a 2-1 decision, a panel of the Kansas State Court of Appeals upheld the law and Limon's sentence. The case will next be appealed to either the full Court of Appeals or to the Kansas Supreme Court and may need to go to the US Supreme Court again.
Other states have been busy trying to ignore or minimize the Lawrence decision. The Virginia legislature has been busy with an attempt to replace their statute forbidding sodomy in private with one prohibiting sodomy in public. In Florida, which has the only US law forbidding homosexuals from adopting, a federal court of appeals upheld this law, arguing that the Lawrence decision was completely inapplicable to the Florida law, a decision which seems to fly in the face of the majority decision in Lawrence.
Despite the Lawrence decision, the US military continues to prohibit sodomy and continues to discriminate against gays and lesbians in the services. Immigration laws in the US continue to discriminate against gay and lesbian couples. In many US states, it is still permissible to discriminate against us in jobs, housing, and other crucial areas. Clearly, there is still much that needs to change. Please be sure to send a contribution to organizations such as Lambda Legal, Human Rights Campaign, and the ACLU Gay Rights Project, who've won some hard-fought battles and continue to work hard to win our rights.
Finally, I wanted to bring to your attention a great pamphlet published by
Lambda Legal. As I've written shortly after the
Lawrence
decision, public sex is still prosecuted in all US states (something that seems to have escaped the great minds in the Virginia legislature.) Just a few weeks ago, several men were arrested in the bathrooms at a New Jersey mall. This came to the attention of the police who regularly monitor the listings on the
Cruising for Sex
site. If, despite the dangers, you continue to cruise the
tea rooms
, parks, and other public venues, I urge you to read a copy of this brochure,
The Little Black Book
(en Español).
22. Massachusetts Marriage: Pros and Cons
April 2004
I'm back after a trying six weeks during which my partner has been laid up with emergency knee surgery. The staff at our local hospital and at the physical rehab facility have been wonderful, treating us with as much respect as any straight couple and keeping me up-to-date on his recovery. We also had several staff members who confided in us about their gay relatives, and my partner helped several staff members work through their mixed feelings about gay or lesbian siblings.
In the meantime, the marriage saga moves forward. Gay and lesbian couples are in court in various parts of the country, testing the validity of marriages entered into in California, Oregon, New Jersey, and New York. Our opponents are also busy trying to preserve their narrow view of civil rights by amending state constitutions or passing ever more restrictive
defense
of marriage acts. Since the demise of the sodomy laws in the US, marriage and our desire to protect our partners has emerged as the next lightning rod in our battle for equal rights.
In less than 30 days, barring some unlikely circumstances, marriage, with all of its rights and responsibilities, will be legal in Massachusetts for same-sex couples. Although this is welcome news for Massachusetts residents, there are many couples living in other states who are considering whether they should make the trip to Massachusetts. For all couples, there are a pros and cons that should be considered carefully before you take the plunge.
Cons
First, outside of Massachusetts, the marriage will have no U.S. state recognition. If you live in one of the 38 states that specifically ban same-sex marriage, your marriage will be completely void in that state. In all U.S. states other than Massachusetts, your marriage will not entitle you to any of the benefits of marriage under your state laws - yet. However, expect to see lots of court challenges made by couples who marry in Massachusetts and then file suit to recognize the marriage in their state. Ultimately, these suits will win, which is why those who oppose us are trying to pass a federal amendment.
Second, regardless of where you live, the marriage will have no federal recognition. The federal Defense of Marriage Act, which President Clinton cowardly signed in the middle of the night, prohibits the federal government from recognizing a same-sex marriage. This means federal rights, such as social security, medicaid and medicare, and immigration laws, among other rights, will be unaffected until the DOMA is overturned or repealed. However, a legal marriage in one state gives rise to a legitimate legal challenge to this unconstitutional law.
Third, for non-residents of Massachusetts, a marriage in Massachusetts may affect your legal rights in your home state. Several states have already adopted laws recognizing some rights for same-sex couples and most are not clear on how they would be effected by a legal same-sex marriage. Vermont's civil union requires the parties to
not be a party to another civil union or marriage
, although it is not clear whether this applies to a same-sex marriage, since a Massachusetts marriage would be void in Vermont. California's domestic partnership act will recognize a
legal union of two person of the same sex,
other than a marriage, that was validly formed
outside the state and is roughly equivalent to the California DP law. New Jersey's Domestic Partnership Act automatically recognizes civil unions, domestic partnerships, and affinity relationships entered outside the state. However, you may not enter a domestic partnership if you are in a marriage recognized by New Jersey, which means a Massachusetts marriage would not prevent a couple from registering as a domestic partner.
Finally, there is a chance that a Massachusetts marriage will be declared void in Massachusetts in November 2006. The state legislature has recently enacted a proposed amendment to the Massachusetts constitution that would define marriage as a union between one man and one woman but allow same-sex couples to form civil unions that "shall provide all the same benefits, protections, rights, privileges and obligations" of marriage and shall make all laws applicable to marriage apply to civil unions. However, in order to amend the Massachusetts constitution, the legislature must pass the exact same proposed amendment in its next session, after which the people of Massachusetts must approve the amendment by a majority vote.
Assuming that the amendment passes all of these hurdles, the earliest it could come into effect would be in 2006. In the interim, same-sex couples are legally able to marry beginning May 17. The proposed amendment does not address what happens to these same-sex couples who marry under the current law. Some think that the state would void the marriages and require the couples to form a civil union. Others think the marriages would be converted to civil unions. This opens up a significant number of legal questions, such as what happens to jointly owned property, and what is the status of children of the marriage. I don't have any answers to these questions. Frankly, it's anyone's guess as to how these issues will play out but I believe that all Massachusetts same-sex couples should execute some form of prenuptual agreement that addresses these and other questions should the marriage be declared void.
Pros
Despite the above-listed drawbacks to a Massachusetts marriage, there are some significant benefits as well.
First, there is the psychological lift your relationship will get from being legally married, even if it isn't recognized in very many places. This is no small thing, and a number of couples who have married in San Francisco, Oregon, Toronto, and other places have reported this.
Second, there are some places that will recognize the marriage. Most likely, Canada, the Netherlands and Belgium will do so. There are also some local governments, including Seattle, that will recognize a marriage license issued to a same-sex couple and extend to these couples whatever local benefits they confer on married couples.
Third, although not legally recognized, the marriage license becomes one more piece of paper that could bolster a claim of certain rights in court. For example, in a probate contest or a contested guardianship, a state marriage license would have to be considered by the judge as strong proof that a couples' contractual rights should be upheld.
Fourth, more and more employers, independent of state and federal law, will extend insurance and other benefits to same-sex couples. Some will do so by extending, as many already do, domestic partnership benefits. Others will decide to provide such benefits to married couples but extend their definition of marriage to include same-sex marriages.
Fifth, as more and more same-sex couples marry, it raises the
ho-hum
quotient and decreases the average person's opposition to marriage equality for same-sex couples. We've already seen a significant increase in support for other types of benefits for gays and lesbians as more and more of us have come out. Many people believe a similar increase in support for our marriage rights will occur as straight people realize that gay marriage has no effect on their rights.
Finally, when marriage equality throughout the US is finally realized, as I believe it will be inevitably, the duration of the marriage will date back to the time the marriage was entered, not when the right was recognized in your state. Thus, community property, adoptions or births, and the like will be recognized from the date of marriage.
Overall, I would recommend that couples living in Massachusetts should marry, but do so with even more careful consideration than a straight couple. As for non-residents of Massachusetts, they should consult with a local attorney to consider what the effect of their marriage will be in their home state, as well as prepare the kinds of legal agreements between them that will protect them outside Massachusetts.
Some Reminders
Massachusetts has some legal requirements for marriage that require a little bit of advance planning. First, there is a three day waiting period (including holidays and Sundays) between the time you file the notice with the clerk and the issuance of the license. Second, you must have a blood test for syphillis, no more than 30 days prior to the license issuing. Third, non-resident couples will be required to sign an affidavit that the marriage would not be void in your state.You can expect that clerks who oppose same-sex marriage will challenge you on this last item whereas clerks in some other cities, particularly gay-friendly places like Provincetown, will take your word for this. There are 38 states that specifically ban same-sex marriage so you must not ignore this; if yours is one of these 38 states, the marriage is void ab initio (from the start.)
23. Banned in Boston
May 2004
Much as I keep hoping to write about some important other legal issues, such as domestic partnerships and elder law, the Massachusetts marriage equality issue keeps dominating GLBT legal news. To give you an idea of the volatility of this legal issue, this is the third time I have updated this column today, May 14, 2004.
As I write this, we are just seven days away from seeing the first legal same-sex marriages in the United States. On Monday, May 17, barring any last-minute legal impediments, same-sex couples will begin legally applying for marriage licenses at town halls throughout Massachusetts. After a three-day waiting period imposed on all couples in the state, same-sex couples will be saying their vows in front of friends and family as they are joined in
wedded bliss
, just like any other couple.
Foes of gay and lesbian equality, however, continue attacks that range from petty and mean-spirited to desperate and despicable.
In the petty category, I count the Massachusetts union that has taken advantage of a federal legal loophole and declared that its health plan will not extend benefits to same-sex marriages. Because the insurance plan is governed by federal law, the union can get away with this blatant discrimination without fear of violating Massachusetts law. Fortunately, there don't appear to be any other groups following this union's lead. However, many companies in Massachusetts that have provided domestic partner benefits are now dropping those benefits for Massachusetts residents, on the basis that these benefits have been provided only because same-sex couples could not legally wed. Now that marriage is becoming a reality, the companies will treat such couples the same as heterosexual couples, which means that if a company refused such benefits to unmarried straight couples, they will similarly refuse them to unmarried same-sex couples. That's certainly fair.
Also in the petty category is the refusal of the Massachusetts governor's office to grant one-day waivers to allow those who are not licensed to perform marriages in Massachusetts for same-sex couples. These waivers are routinely granted by the governor in order to allow couples in Massachusetts to be married by an out-of-state family member or friend who would otherwise be unable to officiate at the wedding. Because the requests for such waivers take from four to six weeks, many same-sex couples have applied for them already, in anticipation of a May or June wedding. Governor Romney's office has taken the position that, since same-sex marriages are not yet legal, it will not grant such waivers until May 17. This has forced some couples to delay their marriage plans until after they have received the waiver.
In the desperate category are the continuing efforts of various religious organizations to seek a court order barring same-sex marriage pending the outcome of the attempt to amend the Massachusetts Constitution to ban equal marriage rights.
These efforts include an appeal by 13 Massachusetts legislators, Republican and Democrat, who argued to the Massachusetts Supreme Judicial Court that it did not have the necessary jurisdiction to decide marriage laws. The legislators, who were supported by the Christian legal group funded by Pat Robertson, the American Center for Law and Justice (ACLJ), argued that only the Legislature and governor had the power to determine marriage law in Massachusetts. The SJC rightly rejected this challenge on the basis that it was untimely and had already been raised and rejected in the previously-decided marriage suit.
Another challenge, brought by the Boston Catholic Archdiocese and argued by former Boston mayor and Vatican ambassador Ray Flynn, was also rejected by the state courts. In addition, a petition to the SJC was fiied by the Catholic Action League arguing that the court should delay same-sex marriages pending the outcome of the amendment effort. The Supreme Court Justice hearing the petition, Justice Ireland, who was among the majority deciding in favor of equal marriage rights, rejected the petition on the basis that the petitioners did not have legal standing, meaning they did not represent anyone affected by the law. He also warned these and other groups that, even if they had standing, he would have rejected the petition on other grounds.
The latest court challenge was one brought in federal court by the Catholic Action League, which is represented by Liberty Counsel, a Christian legal group funded by Jerry Falwell. The League claims that the Massachusetts courts violated the U.S. Constitution by usurping the Legislature's authority to change marriage laws. On May 13, the court rejected the suit, and the Catholic Action League appealed to the First Federal Court of Appeals. That court refused to issue an injunction, although it agreed to hear arguments on the matter in June. In a last-ditch effort, the CAL appealed to the U.S. Supreme Court, which refused to hear the matter without comment.
In the truly despicable category, however, I rank the efforts of Governor Romney to prevent out-of-state same-sex couples from coming to Massachusetts to marry, as many had planned. The Governor's stance is based on an interpretation of a little-used 1913 law meant to prevent interracial marriage.
This law prevents a Massachusetts clerk from issuing a marriage license to an out-of-state couple if the marriage would be void in the couple's state of residence. Out-of-state couples have generally not been asked for proof of residency, and have only to sign an affidavit that the marriage would not be void in their state.
When Romney's office first raised the law as an impediment to out-of-state couples, the state's Democratic Attorney General issued an opinion that the law prohibited marriage for couples from the 11 states that actually had laws prohibiting same-sex marriage. When clerks in some cities began stating they would not enforce the law against same-sex couples, Romney responded by threatening the clerks with prosecution if they violated the law. He also issued new guidelines and a new affidavit requiring the out-of-state couple to provide proof of residency. Romney also took the position that all other states were presumed to ban same-sex marriage and unless the Governor received a legal opinion from another state's governor or attorney general stating otherwise, Massachusetts clerks were prohibited from marrying non-resident same-sex couples.
Many clerks in Massachusetts, particularly those in gay-friendly cities such as Provincetown, subsequently declared they would not ask for proof of residency from same-sex couples who signed the affidavit. An attempt to repeal this law failed in the face of the Governor's threat to veto such a repeal. As it stands, therefore, it is unclear whether a Massachusetts marriage of a same-sex couple would be void. If you're planning such a marriage, don't go to Boston, which has stated that it will not issue licenses to out-of-state same-sex couples.
There are some bright spots, though. The Governor quelled an effort by some clerks opposed to same-sex marriage, who had stated that they would not perform such marriages. Romney has told such clerks that if they are unwilling to perform such marriages, they must resign.
In addition, clerks in Provincetown, Worchester, and several other Massachusetts towns have reiterated their position that they will not ask for proof if an out-of-state couple declares in their affidavit that they intend to reside in Massachusetts after the marriage, and will issue marriage licenses to such couples.
On May 20, 2004, when the first same-sex marriages actually take place, the sun will rise, the moon will set, and the tides will ebb and flow. Heterosexuals will wake up, go to work, come home for dinner and go to bed, and just like any other day, their marriages will be no better or worse than on May 19. I predict that by the time the Massachusetts marriage amendment comes to a vote by the people of Massachusetts, much of the opposition will have faded and marriage in Massachusetts will continue to be afforded equally to all couples, regardless of sexual orientation.
Finally, a little personal news. I am running for city counsel in our little town of Flemington. Although I am not running as the
gay candidate
, I am one of only two openly-gay candidates for office in New Jersey this year. Last week, Richard and I attended the NJ Democratic Party Conference in Atlantic City, where we received lots of support from state and local party leaders, both straight and gay. I'm looking forward to a tough campaign in this Republican stronghold, but it should be loads of fun and we stand a good chance of winning.
24. Odds and Ends
July 2004
Once again, I haven't got time to write an article here. I'm finishing up a book on the New Jersey Domestic Partnership law, which went into effect last weekend. That, plus political activities and some other writing that I am doing is taking up most of my time. I have had some interesting questions come in this month, so be sure to look at these.
Meanwhile, we in the U.S. should all breath a (short) sigh of relief that the Republicans were unable to get a vote in the Senate on the anti-gay marriage amendment. This blatent attempt to make political hay out of our civil rights failed, but it is not the final effort but, rather, the opening shot in a very nast battle for our rights. I am encouraged to see that there were some courageous Republican Senators who were willing to buck their leaders, but there were only a few. How sad that moderate Republicans have allowed their party to be hijacked by the extreme right.
The battle continues, now, in the House of Representatives and the state legislatures. The House, under the direction of Tom DeLay, is planning to move forward on its version of the marriage amendment, as well as a law that would prevent U.S. courts from having the authority to decide challenges to the federal Defense of Marriage Act. DeLay, who used to be our Congressman when we lived in Houston, is one of the meanest, nastiest, most corrupt politicians in Congress today. Unless we in the U.S. can replace the Republicans as the majority party in the House and Senate, we can continue to expect these hateful bigots to continue trying to destroy us.
In the states, the picture isn't very good either. The state of Oklahoma passed a law banning adoption by same-sex couples and refusing to recognize such adoptions from other jurisdictions. Ohio, Utah and Virginia passed laws that not only forbid recognition of same-sex marriages, they also forbid any other form of same-sex relationship, including civil unions, domestic partnerships, or even simple contractual relationships. Louisiana, Missouri and several other states have passed proposed constitutional amendments forbidding same-sex marriage. The atmosphere in some states resembles the level of hatred that brought about years of legalized racial discrimination in the South of the U.S.
Still, there are bright spots in the legal landscape. As of yesterday, July 14, 2004, the Yukon Territories in Canada agreed to extend marriage rights to same-sex couples, joining British Columbia, Quebec, and Ontario provinces in recognizing marriage equality. Now, every Mountie can get his man!
The State of Maine recently enacted a Domestic Partnership Act. Although the act provides limited recognition for same sex couples, it's a start. Maine is proving to be surprisingly forward-thinking in this regard. Even its two Senators, both Republicans, voted against the marriage amendment.
As I mentioned, my own state of New Jersey is also moving forward. The Domestic Partnership Act went into effect on July 10, and I understand over 500 people registered in just the last few days. In addition, the suit on behalf of 7 New Jersey couples who want to marry is moving along rapidly. This case may be fast-tracked to the New Jersey Supreme Court within the year. Hopefully, New Jersey will soon join Massachusetts as states where we can marry.
In Massachusetts, the 1913 law that was used to prevent out-of-state couples from marrying in Massachusetts has been challenged in court. The judge in this matter has asked for additional legal briefs from the parties but, no matter how this judge rules, you can expect an appeal. Fortunately, every other attempt to prevent same-sex marriage in Massachusetts has failed in the courts, and it's been lots of fun to see how many same-sex wedding announcements make it into the New York Times' wedding pages each Sunday.
25. Commentary: The Governor Comes Out
August 2004
I was just finishing this month's article when the news trickled in that New Jersey Governor Jim McGreevey was making a major announcement and would probably resign. Like many of us here in New Jersey, and elsewhere, I watched the news conference live. And like many of us here in New Jersey who knew or had met the Governor, the news was no surprise.
I do not pretend to know the Governor, but as a politically active member of the GLBTI community in New Jersey, I had the privilege of meeting him on several occasions, most recently at a brunch at the Governor's Mansion celebrating first domestic partnerships in the state. The Governor is a warm man and his heart is generally in the right place, particularly when it comes to equality.
I thought the Governor's admission, I am a gay American,
was particularly brave of him. How many of us could handle coming out in such a public manner and do so with as much dignity? On the otherhand, his admission made the Governor's opposition to same-sex marriage seem hollow and hypocritical.
His former aide is, by every account I have heard over the last two years, an opportunist who took advantage of his relationship with the Governor. He was given several high-level government positions at the Governor's insistence, despite the fact that he was completely unqualified. When he became an embarrassment to the Governor's office, he was given jobs with two Trenton lobbying firms, both of which fired him for his incompetence. After attempting to blackmail the Governor, he has the temerity to threaten to sue for sexual harassment, playing the innocent, heterosexual
led astray by a powerful man. I don't believe there is anyone in the State of New Jersey that buys into this man's story.
But Jim McGreevey is a flawed man in many ways, who was often led astray by people he trusted and by his own political ambition. Their actions reflected badly on him, giving the appearance that corruption was rampant throughout his administration. Several of his former aides and political acquaintances have been indicted and many people believed that the Governor could not survive another scandal. Many of us were heartened that the Governor's new chief of staff, a man for whom I have great respect, could keep the Governor insulated from these bad actors.
Then this bombshell hit and for most of us in the Democratic Party, it was the last straw. Make no mistake about this -- Governor McGreevey didn't resign because he was gay, and he didn't resign because he'd cheated on his wife. He resigned because he abused his office for his own personal needs.
If there is a bright lining in this, it is the response of the people of my state. They are disgusted by the corruption, and by the Governor's betrayal of his wife, but almost without exception, they don't seem to care that he is gay. That says volumes about how far we have come, and opens the door to openly gay candidates running throughout the state.
26. Formalizing Partnerships: Part 1
August 2004
When I finished law school in 1996, I could not have imagined that eight years later I would be discussing any form of government-sanctioned legal protection for same-sex couples, other than Vermont's civil union. But with the recent enactment of a domestic partnership act in the state of Maine and new victories for marriage equality in the state of Washington and the Yukon Territory, there are now eleven jurisdictions in North America that allow same-sex couples to formalize their relationship.
Six jurisdictions have extended marriage rights to same-sex couples. The Yukon joins the Canadian provinces of Ontario, Quebec, and British Columbia in granting marriage licenses to same-sex couples. Many in Canada believe the province of Nova Scotia will be next, while others await a national law that would extend marriage equality throughout Canada.
The situation in the U.S. is more fluid. In addition to Massachusetts, a Washington state court has ruled that marriage certificates must be issued to the eight same-sex couples that filed suit in that state. Undoubtedly the decision will be appealed, probably directly to the state Supreme Court, and until a final decision is reached, the state will not issue further licenses.
Marriage alternatives have popped up in other U.S. states. The State of Hawaii was first, passing its Reciprocal Beneficiaries law in 1997, followed by California passing a limited Domestic Partnership Act in 1999, and Vermont passing its Civil Union law in 2001. In 2003, California considerably strengthened its Domestic Partnership Law (it goes into effect on January 1, 2005), and in 2004 New Jersey and Maine joined the crowd with their Domestic Partnership Acts.
Finally, we should not forget the time-honored alternative of living-together. What was once our only choice has now become another alternative in the way we join our lives.
In this month's column, I will briefly discuss the rights, responsibilities, requirements and limitations found in each of these laws. Next month, I'll discuss the comparative advantages and disadvantages of the different alternatives. I'll also look at how these legal alternatives are viewed at the federal and state level in the U.S., and how they are viewed in Canada.
In discussing each of these alternatives, I'll include information about whether these legal relationships are recognized in other states or countries and, if so, where. This recognition is important because it means that if you visit or even move to another state or country, you need to know if and to what extent that jurisdiction will recognize your relationship.
Reciprocal Beneficiary
If, in 1996, you polled same-sex couples on the terms they used to refer to each other, you might hear terms such as lover,
spouse,
companion,
partner,
or even husband (wife).
It is unlikely, however, that you would have heard someone refer to his or her reciprocal beneficiary.
Nevertheless, reciprocal beneficiary, as enacted in 1997 in Hawaii, has the distinction of becoming the first kind of state-sanctioned relationship available to same-sex couples in North America.
In general, it refers to a form of domestic partnership made available to two persons who are legally prohibited from marrying for one reason or another, including that they are a same-sex couple. So far, reciprocal beneficiary laws have been enacted in only two states ??? Hawaii and Vermont ??? and it is unlikely that any others will follow suit.
Currently, only the state of New Jersey recognizes reciprocal beneficiaries entered in Hawaii or Vermont, and reciprocal beneficiaries can expect to receive the full set of rights available to domestic partners in those states.
The reverse doesn't hold true, however, and a domestic partnership or civil union entered elsewhere is not recognized as a reciprocal beneficiary in Vermont or Hawaii, nor do these states recognize each other's law, despite the similarity in name and form.
Hawaiian Reciprocal Beneficiary
The Hawaiian reciprocal beneficiary law allows same-sex couples, relatives and friends to register as reciprocal beneficiaries if they are both at least 18 years of age, not legally married or part of another reciprocal beneficiary relationship, and would be legally prohibited from marrying the other person under Hawaiian law. There is no state or U.S. residency or citizenship requirement.
The reciprocal beneficiary law confers certain property rights, such as joint tenancy. Registered beneficiaries have the same inheritance rights, visitation rights, and health care proxy rights as married spouses. They are also protected under the state's domestic violence laws. State employees do not, however, receive any health benefits.
In order to register as reciprocal beneficiaries, an eligible couple files a notarized registration form with the state Department of Health and pays an $8 fee.
Hawaii's reciprocal beneficiary relationships are recognized in New Jersey. They are not explicitly recognized in Vermont. They may be recognized under the new California domestic partnership act when it goes into effect in 2005. Hawaii does not allow same-sex marriage and does not recognized same-sex marriages entered into elsewhere.
Vermont Reciprocal Beneficiary
Although overshadowed by Vermont's civil union laws, the state also has a reciprocal beneficiary law. However, its law is restricted to individuals who are related by blood or adoption. Thus it is of no interest to same-sex couples.
Civil Union
In December 2000, the Vermont Supreme Court unanimously ordered the state to provide the rights and obligations of marriage to same-sex couples. In order to comply, the Vermont Legislature passed the Civil Union Act of 2000, which was signed into law by then-Governor Dean.
The Act created a separate but equal
status for same-sex couples, conferring all of the state rights and responsibilities under the marriage laws to same-sex couples who registered. Federal rights given to married couples are not available.
Same-sex couples register a civil union by obtaining a civil union license from the clerk of their town of residence, or if neither are residents, from any town clerk in the state.
In order to enter a civil union, the partners may not be in another civil union or marriage, must be of the same sex, and must meet all other requirements for marriage in Vermont. They are not required to be residents of Vermont or even citizens of the U.S.
A civil union is dissolved in the same manner as a marriage, and requires at least one partner to have been a resident of Vermont for at least 6 months prior to filing for dissolution and the partner must be a Vermont resident for at least one year prior to the final hearing granting the dissolution.
Vermont does not specifically recognize domestic partnerships or reciprocal beneficiary relationships entered in other states. The state also does not permit same-sex marriages.
Vermont civil unions are recognized in New Jersey. They will also be recognized in California once that state's new domestic partnership act goes into effect on January 1, 2005.
Domestic Partnership
A third alternative to same-sex marriage ??? domestic partnership ??? emerged in California in 2000, and has subsequently been implemented in New Jersey and Maine.
California
In 1999, California created a state domestic partner registry and in January 2000 began extending health benefits to state employees who registered their partnership. The state expanded the rights of domestic partners in 2002 when it enacted the AB25, the Domestic Partnership Act of 2002.
The 2002 Act provided about 20 rights to same-sex couples and opposite-sex couples who were at least 62 years old. Realizing that there were significant flaws in the 2002 Act, the state enacted the Registered Domestic Partner Rights and Responsibilities Act of 2003, which goes into effect on January 1, 2005.
The new Act provides nearly all of the state rights and responsibilities afforded to married couples in California. Federal rights given to married couples are not available.
In order to register, the partners must be at least 18 years of age, have a common residence, neither married to someone else nor a member of another domestic partnership, and of the same sex or, if they are of opposite sex, one or both partners must be at least 62 years old. They are not required to be U.S. citizens and may not be required to be residents of California.
Partners may terminate a domestic partnership in one of two ways. They may file a proceeding in state court, following the same rules and procedures as a marriage termination. Alternatively, they may terminate their partnership by filing a Notice of Termination if they have been together less than 5 years and they meet other criteria, such as having only limited community property.
The new California law when it goes into effect will extend recognition to legal unions entered elsewhere that are substantially similar
to a domestic partnership. Although it is clear that a Vermont civil union would be recognized in California, it is not yet clear whether California would recognize New Jersey and Maine domestic partnerships or Hawaii reciprocal beneficiary relationships. California does not allow same-sex marriage and explicitly does not recognize same-sex marriages entered elsewhere.
New Jersey
The New Jersey Domestic Partnership Act, which went into effect in July 2004, is very similar in the protection that it provides to the earlier California law, AB 25.
The Act provides a limited set of rights to same-sex couples and to some opposite-sex couples. The rights include hospital visitation and health proxy rights, inheritance transfer tax exemption, and health and pension benefits for state employees, and statutory protection from discrimination on the basis of domestic partnership.
As in California, the partners must be at least 18 years of age, have a common residence, neither married to someone else nor a member of another domestic partnership, and of the same sex or, if they are of opposite sex, one or both partners must be at least 62 years old. They are not required to be U.S. citizens but, in general, they must have a New Jersey residence.
In order to terminate a registered partnership, one of the partners must file a petition in family court. The judge will decide the distribution of property, and may use equitable distribution (i.e., a fair but not necessarily equal division) to distribute all property acquired either jointly or individually during the partnership. There is no support (alimony
) awarded unless the partners' had agreed to this in a contract.
The New Jersey Domestic Partnership Act explicitly recognizes civil unions, domestic partnerships and reciprocal beneficiary relationships entered in other states. New Jersey currently does not allow same-sex marriage, but it isn't clear whether the state would recognize a same-sex marriage entered elsewhere.
Maine
The recently enacted Maine Domestic Partnership Act, which went into effect in late July 2004, is the newest entry in the menu of choices for same-sex couples.
The Maine Act provides limited rights to registered, unmarried couples in three areas. First, it allows domestic partners to inherit from a partner who dies without a will. Second, it allows an incapacitated person's domestic partner to be appointed as their guardian or conservator. Third, it provides that a deceased person's domestic partner will automatically have the right to receive their remains and make funeral arrangements.
Unlike the laws in other states, domestic partners may be same-sex or opposite sex. They also may be related by blood or by adoption. In order to register, the partners must have been legally domiciled together for at least 12 months, unmarried or in another domestic partnership, and agree to be responsible for each other's common welfare. They are not required to be U.S. citizens nor are they require to be Maine residents.
At this time, Maine has not defined the termination procedure for domestic partnerships. Presumably, the partnership is terminated when one or both partners file a notarized affidavit attesting to the termination with the Maine Secretary of State.
Maine does not recognize domestic partnerships, civil unions or reciprocal beneficiary relationships formed in other states. It also does not allow same-sex marriage and does not recognize same-sex marriages entered elsewhere.
Civil Marriage
In North America, same-sex marriage is now legal in five jurisdictions ??? Massachusetts in the U.S., and in Ontario, British Columbia, Quebec, and the Yukon in Canada. Each of these has its own laws regarding marriage.
Massachusetts
Same-sex marriage became legal in Massachusetts on May 17, 2004. Couples who marry in Massachusetts have all of the same rights and responsibilities as opposite sex married couples.
Individuals who wish to marry must be at least 18 years of age, unless they have obtained a judge's permission. They must not be in another marriage or in a civil union or domestic partnership with someone else, and they may not be closely related, by either blood or marriage.
The couples must first get a blood test for syphilis and bring the results when they apply to a local town clerk, where they fill out a sworn notice of intent to marry. After waiting three days, they may pick up their marriage license from the clerk. The license is valid for 60 days from the date of the notice. During that period, the marriage must be solemnized by either a Justice of the Peace or a clergy member who is authorized by the State. The officiant will sign the license and send it to the State where the marriage is officially registered.
Although you do not have to be a U.S. citizen, same-sex couples must be residents of Massachusetts or intend to move to the state. This current impediment for out-of-state couples came about because the governor of Massachusetts, Mitt Romney, is a well-known and vocal opponent of same-sex marriage. He has chosen to enforce a previously unused law that prohibits non-resident marriages if the marriage would be void in the couple's state of residence. This law has recently been challenged in court and may be invalidated.
Massachusetts does not recognize domestic partnerships, civil unions or reciprocal beneficiary relationships entered elsewhere, other than as an impediment to marriage in some circumstances. The state does recognize marriages entered in other states and, probably, in Canada.
The Massachusetts Legislature passed a proposed amendment to the state's constitution that would prohibit same-sex marriage but would legalize civil unions. The exact same amendment must be approved in the next legislative session (2004-2005), and then must be ratified by the voters of Massachusetts. Therefore, same-sex couples who marry in the state should be aware that after 2006, their marriage may be invalidated or converted to a civil union should that amendment be ratified.
Canada
Same-sex marriage became a reality in Canada in June 2003, when courts in the provinces of Ontario and then British Columbia ruled that the prohibition against same-sex marriage violated the Charter or Rights and Freedoms. Shortly thereafter, the national government decided not to challenge the decisions.
Nearly a year later, in May 2004, the Quebec Court of Appeal legalized same-sex marriage in that province and in June 2004, the Yukon Territory followed suite.
In general, individuals who wish to marry in Ontario must be at least 18 years of age (19 in British Columbia and the Yukon), they must not be in another marriage or in a civil union or domestic partnership with someone else, and they may not be closely related, by either blood or marriage. There is no residency requirement nor is there a citizenship requirement. There is, however, a residency requirement for divorce.
In Ontario and British Columbia, the intended spouses first obtain a wedding license. They may then be married by an officiant, who signs the license. Two witnesses are required. Couples may be married in a civil ceremony or religious one.
In Quebec, the procedure is a bit different. The intended spouses first visit the person who will officiate, and set a date for their marriage. After ensuring that the requirements for marriage are met, the officiant publishes the banns of marriage at least 20 days in advance of the marriage. A civil marriage is solemnized in a public place before the officiant and two witnesses, after which a declaration of marriage
is signed and forwarded to the Registrar of Civil Status. The procedure for a religious marriage is slightly different and depends, in part, on the particular religion.
Marriage in one Canadian province does not guarantee recognition in those provinces that currently prohibit same-sex marriage, such as Alberta. Canada is currently wrestling with the issue at the national level, which may result in a legalization and recognition of same-sex marriage throughout Canada.
In the U.S., the status of a Canadian marriage is unclear. Most states will refuse to recognize the marriage, as will the U.S. government. Already, there have been problems with same-sex Canadian couples visiting the U.S. One thing is clear, there will be considerable litigation in this regard.
Ceremonial Marriage
In this category I include those who choose to have a ceremonial marriage that is not state-sanctioned. By this I mean that two partners marry in a religious or quasi-religious ceremony but are not granted a legal license. These ceremonial marriages can be accompanied by various written documents attesting to the marriage.
Although these marriages are not sanctioned by the state, they can be persuasive if the legal documents that are created to protect the partners are challenged in some way. In effect, the guests at your wedding become additional witnesses to your relationship and as many as possible should sign a commitment document if you have one.
Summary
Having laid out all the forms of state-sanctioned protection for same-sex couples in North America, in Part 2 of this article, I will compare the options and also discuss problems that occur when a couple leaves home.