Home » About » Newsletters » May 1997
The Last Civil Rights Battle: Legal Equality for Gays and Lesbians
By Andrew H. Kayton, Legal Director,
and Jessica J. Connor, Editor/Staff Associate
May 1997
Les Boatwright and Patrick Hayes have been a couple for 15 years. They share a home together, they own properties together, and in a Caribbean seaside service they have taken vows of marriage together. In every common sense of the word, they are married.
But the State of Florida doesn't recognize their commitment as a legal marriage because Les and Patrick are gay. And Les, who works for the State of Florida and receives health benefits, can't qualify Patrick under his insurance plan. "It's demeaning," says Les, who works with the Florida Department of Children and Family Services. "You can't hold your head up high with the rest of the people involved in a domestic partnership. You're the lowest of the low."
The Hawaii Supreme Court is expected to rule in the coming year that a prohibition on samesex marriages violates provisions of that state's constitution. If that occurs and if Hawaii voters reject in November 1998 a state constitutional amendment permitting reservation of marriage to oppositesex couples samesex marriages could be legally sanctioned in Hawaii before the year 2000. And Les and Patrick, like many gay and lesbian couples, have already decided that they will journey to Hawaii to legalize their own vows if the law permits them.
But federal and state lawmakers have already passed legislation intended to stem the effect of events in Hawaii, citing fears of chaos in the nation's social and moral fabric and supposed violations of natural and biblical law. Last year, Congress passed the Defense of Marriage Act, which allows states to withhold recognition of samesex marriages performed in other states. And this year, by overwhelming vote, the Florida Legislature passed a bill that would prohibit recognition of samesex marriages, becoming the sixteenth state to do so. (The ACLU, in Florida and elsewhere, is prepared to challenge the constitutionality of such legislation should gay and lesbian marriages occur in Hawaii.)
This creates serious problems for couples like Les and Patrick who are seeking to marry in Hawaii and return home to Florida. "We'd have to move back to Florida and keep fighting for equality," says Patrick, a local AIDS activist who coordinated the AIDS Memorial Quilt and AIDS Help in Key West. "It wouldn't behoove any agency to look down at a marriage certificate," says Les. "I don't care if it's two women [who want to want to marry], or an Asian man and a black woman...it's very discriminatory."
That comparison between the marriage of an interracial couple and a gay couple places the current hysteria against samesex marriage in a useful frame of reference. Many of the social conceptions put forward against legal recognition of gay and lesbian marriages are surprisingly reminiscent of another time in U.S. history. The same types of arguments now proffered by opponents of samesex marriages were once vigorously advocated by opponents of interracial marriage. In view of the widespread bias that hindered interracial couples from obtaining a right to marry, one can easily compare the discrimination and protracted legal battles lesbian and gay couples face today with the obstacles interracial couples encountered a short time ago.
Only thirty years ago, in Loving v. Virginia, the U.S. Supreme Court finally ruled that antimiscegenation laws violate the federal constitution. Such laws had been in place in many states since Colonial times, and interracial couples faced heavy fines, imprisonment and even banishment. Society and the courts discriminated against interracial unions based on the supposed existence of "biological evidence" that interracial couples could not procreate, and sanctimonious assurances that diverse races were not intended by God or nature to mix. One Virginia court went so far as to justify its prohibition simply by virtue of the "abominable mixture" apparently selfevident in interracial marriage, and a Georgia decision held that "the amalgamation of the races is not only unnatural, but is always productive of deplorable results. . . . [Such marriages] are productive of evil, and evil only, without any corresponding good." Even with the Equal Protection clause in place after the Civil War, states still were not hesitant to invoke and enforce racially discriminatory marriage laws. By the end of World War II, 31 states still maintained strong antimiscegenation bans, just as today many states have enacted samesex marriage bans.
Opponents of lesbian and gay marriages perceive the supposed inability of samesex partners to procreate as a unique contention against those particular unions. It is illuminating to learn that a nearly identical untrue argument also played a role in the fight against mixedrace marriages. Early antimiscegenists asserted that interracial couples were biologically incapable of producing children. A Missouri court decision, for example, proclaimed:
It is stated as a well authenticated fact that if the issue of a black man and a white woman, and a white man and black woman, intermarry, they cannot possibly have any progeny, and such a fact sufficiently justifies those laws which forbid the intermarriage of blacks and whites.
This "wellauthenticated fact" was an astonishing myth, as are similar assumptions about procreation among gay men and lesbians. With the advent of artificial insemination, and through adoption and other quite ordinary means of conception, there are plenty of gay and lesbian parents who in fact have children and support and nurture them in a twoparent setting.
Opponents of gay and lesbian marriage often claim they want to protect the welfare of children subjected to such a marriage, citing "evidence" that such marriages would influence children to "become" gay or lesbian, and that the social stigmas attached to homosexual parents would harm children's emotional wellbeing. Studies relied on in the New Jersey Supreme Court case of Matter of the Adoption of a Child by JMG, however, in fact found that the development of gender identification, role behavior and sexual orientation is the same for children of heterosexual and homosexual parents. In Florida, the ACLU established similar record evidence at trial just this last month in Amer v. Fla. Dept. of Children and Family Services, a constitutional challenge to Florida's statutory prohibition on adoptions by "homosexuals." June Amer, a lesbian who wished to adopt a special needs child, was denied the right to adopt based on her sexual orientation. The ACLU presented key expert testimony establishing that scientificallyaccepted parenting studies have shown there is no difference in the psychological wellbeing of a child raised by gay or lesbian parents compared to a child raised by heterosexual parents. In fact, in Florida, lesbians and gay men are allowed to be foster parents, with no know harmful effects on children, and are in effect the only class of citizens denied permission to adopt in this state.
Bias exists against gay and lesbian marriages today much as it did against interracial marriages years ago. But bias, or as the U.S. Supreme Court noted last year, "a bare desire to harm a politically unpopular group" such as homosexuals, cannot serve as a basis for denying a class of citizens a fundamental right. In striking down a Virginia ban on interracial marriages in 1967, the Supreme Court explained:
The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the basic civil rights of man, fundamental to our very existence and survival. . . . The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious . . . discrimination. Under our Constitution, the freedom to marry, or not marry, a person . . . resides with the individual and cannot be infringed by the State.
These basic notions helped to bring an end to antimiscegenation laws in this country and easily can be applied to gay and lesbian marriage bans as well. By emphasizing the similarities between the two contexts, it may help to lessen both the social prejudices and the legal obstacles that remain in the way of gay and lesbian marriages.
For now, Les Boatwright and Patrick Hayes must content themselves with waiting for the day that the State of Florida will finally recognize their 15 year union and life commitment as a legal marriage.
