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Massachusetts Ruling on Same-Sex Marriage

Evan Wolfson
Executive Director, Freedom to Marry
Thursday, February 5, 2004; 3:00 PM

The Massachusetts Supreme Court ruled Wednesday that the state legislature may not offer "civil unions" instead of marriage for same-sex couples. This decision paves the way for the first state-recognized same-sex marriages in U.S. history.

Evan Wolfson, executive director of Freedom to Marry, was online Thursday, Feb. 5 at 3 p.m. ET to discuss his organization's reaction to the Massachusetts Supreme Court ruling.

A transcript follows.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

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washingtonpost.com: Evan, thank you for joining us today. In an earlier discussion today, the Family Research Council's Peter Sprigg said, "If homosexual unions, which are more unstable than heterosexual ones and less likely to be characterized by sexual fidelity, become part of the ideal of "marriage" that is held up to society, that will change the expectations and behavior of everyone, including heterosexuals, in the long run -- to the detriment of society as a whole."

What is your response to his assertion? Evan Wolfson: I am always struck when our opponents -- who spend a good chunk of their time urging people to get married and advocating special rights for those who do -- then turn around and argue that gay people alone should not be allowed to marry. In fact, gay people have the same mix of reasons for wanting to be able to marry as non-gay people, and if we as a society believe that marriage helps build strong families, and strong families in turn build strong communities, why would it not be better to allow couples willing to take on the commitment and responsibilities to do so? If marriage is good for non-gay people, why wouldn't it be good for gay people?

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Bowie, Md.: What do you make of conservatives' use of terms like "activist judges" and "renegade judges?"

Judical independence is one of the foundations of this country. Romney's comment about the people not having their say seems a bit disingenuous. The governor and the legislature appoint and approve all judges, and the people of Massachusetts (through their legislators) approve all the state laws and even the state constitution, centuries ago.

It seems as though these judges are only "renegades" because President Bush, and other conservatives, don't like their decision.

Evan Wolfson: Governor Mitt Romney and others who are criticizing the decision of the Massachusetts Supreme Judicial Court to end sex discrimination in marriage echo the vociferous opposition when another state supreme court became the first to strike down race discrimination in marriage -- also by a 4-3 vote. Each person seeking a license to marry the "wrong" kind of person, the California Supreme Court wrote in 1948, "finds himself barred by law from marrying the person of his choice and that person to him may be irreplaceable. Human beings are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains."

The 4-3 majority in that historic case, Perez v. Sharp, like the Massachusetts high court today, correctly rejected assertions by the opponents of equality that in such matters, courts should defer to public opinion or yield to a long and sorry history of discrimination. By upholding the constitution's command of equality and respecting the families and loving unions formed by Americans in a vulnerable minority, the court fulfilled the mission of the judiciary, did justice, and immeasurably enriched the nation.

Gov. Romney gives no good reason for denying same sex-couples what the California Supreme Court called "the essence of the right to marry -- the freedom to join in marriage with the person of one's choice." He never explains how denying committed gay couples marriage licenses "defends" anyone else's marriage, helps their families, or builds stronger communities. Instead, he invites a massive and divisive political campaign of resistance, much like governors George Wallace and Orval Faubus, who have gone down in history as on the wrong side of America's movement toward equality and respect for the pursuit of happiness. Gov. Romney and politicians around the country would do our nation a favor if they would stop playing with fire near the constitution, stop making America a house divided, stop trying to intimidate the courts who are doing their vital jobs, and stop standing in the doorway trying to block loving couples from crossing the threshold.

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Arlington, Va.: It seems to me that the "slippery slope" argument against gay marriage has essentially disappeared. I rarely see any referring to the inevitable consequence of bestiality as the result of gay marriage. I always thought this was a very weak argument, but honestly a better one than the argument that gay marriage will weaken heterosexual marriage. Do you think the current arguments against gay marriage will change as people become less and less opposed to the idea. The FRC can't keep sending out the same arguments for the next three years; they're a marketing organization as we all know, and they know they can lose market share without a peppy new slogan of discrimination.

Sorry, I'm a little negative, my family gives money to the FRC and have disowned me since coming out thanks to their many mailing and "factual studies." I'm in a healthy three-year relationship with my partner and I'm hoping to get married and adopt in my lifetime.

Evan Wolfson: Clearly, over the past several years, the more people have had a chance to think about the question the courts have also been considering -- "what is the reason for denying committed couples marriage licenses? -- the more Americans have moved to supporting, or at least accepting, marriage equality. The center is moving toward inclusion, and many majorities among younger people, women, independent and Democratic voters, and in several states already support full equality. The right-wing groups are mounting a fierce onslaught this year because they know that as people have this discussion, they move toward equality.

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Lake Ridge, Va.: Honestly, I cannot fathom the bigotry in this country when it comes to the issue of gay marriage.

What is so terrible about two people who are in love sharing the same privileges as any other two people who are in love? Anyone who quotes scripture in answer to that question are to be immediately disregarded. This is not a religious issue, nor is it a family issue, it is an issue of equality and personal freedom.

I am not gay and have never been concerned about gay rights. But something about this issue has suddenly boiled my blood. The idea that someone should be denied the same rights as another because of their lifestyle is absurd. How is this any different then making interracial marriages illegal?

I'm hoping beyond hope that this is a generational problem. Being in my early 20s, I have never been faced the segregation issues that my parents did. I can only hope that we handle this blatent homophobia better than our parents' did racism and segregation.

A Constitutional amendment banning gay marriage would hinder equality in this country more than anything since Plessy vs. Ferguson. I honestly cannot believe there is anyone who supports such a thing, let along that they make up the majority of the country. What is the rationale behind such a perspective?

Evan Wolfson: As described on our Web site -- -- the Constitution has never been amended to write discrimination into law... and that is because most Americans understand that you don't tamper with this charter of freedom and national unity.

Now, sadly, this election year there is a campaign underway to cement discrimination into the Constitution. In fact, the sweeping and radical amendment being proposed in Congress now is clearly intended to do two things in both its explicit language and its vagueness:
1. intrude the federal government into the regulation of marriage to prevent all states and all future generations from providing marriage equality to committed same-sex couples, no matter what, and
2. prevent state and local governments, as well as the federal government and in many cases private employers, from providing any other measure of protection ("the legal incidents" of marriage") to gay people and their families as well as other unmarried Americans and their children.

There is nothing moderate or conservative about this effort to write anti-gay discrimination into the Constitution. For that reason, many conservative voices have spoken out against this political abuse of the Constitution, including Vice President Dick Cheney, Senators Chuck Hagel and Jon Ensign, columnist George Will, and even former Congressman Bob Barr (author of the 1996 federal law discriminating against gay people's marriages).

In 1998, voters in South Carolina were asked to approve an amendment to their constitution to remove archaic and offensive language prohibiting interracial marriage -- language that was no longer enforceable because of court rulings. Shockingly, 40% voted to keep it in... showing what a bad idea it is to enshrine discrimination in constitutions.

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Mt. Rainier, Md.: Could this Massachusetts ruling be knocked down?

Evan Wolfson: Governor Mitt Romney of Massachusetts and some other politicians there are inviting a massive and divisive political campaign of resistance, much like governors George Wallace and Orval Faubus, who have gone down in history as on the wrong side of America's movement toward equality and respect for the pursuit of happiness. They are trying to pressure state legislators into changing the state constitution -- the oldest constitution in the world, written by John Adams himself -- to enshrine discrimination.

Gov. Romney and politicians around the country would do our nation a favor if they would stop playing with fire near the federal and state constitutions, stop making America a house divided, and stop standing in the doorway trying to block loving couples from crossing the threshold.

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Washington, D.C.: Just to address any bias, let me say that I am not gay, but I support gay unions. Now, on to my question ...

How can your or any other group address the issue of gay marriage/unions in a way that meaningful to most people? To many people, gay marriage is the end to civilization as we know it. Yet, these are the same people whose belief has no real basis other than misconceptions and ignorance (not to mention hypocrisy). How do you get opponents to see that the real threat to marriage are Britney Spears-esque situations...?

Evan Wolfson: The key is for each of us, gay or non-gay, to ask our neighbors to take a deep breath and think about. We need to tell our own stories, how we are affected by this discrimination. This is about real families who are really harmed by the exclusion, just as our country is harmed by attempts to carve any group of Americans out.

Denied the freedom to marry and the ability to dream of a life together with a partner, supported and embraced by the society, gay youth are sent a message of inferiority and exclusion; often before they even know they are gay, they can sense that their difference means they will be excluded from an important part of life. Gay couples are deprived of important protections and support -- tangible and intangible, as described at length by the Massachusetts court and at www.freedomtomarry.org.

Moreover, non-gay parents, siblings, nieces and nephews, grandparents, and friends suffer, too, when gay relatives are treated unequally and cast outside the law's protection. What good parent does not want the same opportunities, joys, and shelter for all their children, gay or non-gay? The law should help support families and enlarge people's possibilities, not tear them apart or put barriers in their way.

Ask people to be fair, and to at least stand up against discrimination. Given a chance to think it through, people will come to the right place ... which is why the right-wing is fighting so hard to stampede people right now.

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Capitol Hill, Washington, D.C.: I say let 'em marry! Why shouldn't they be as miserable as the rest of us?!

Seriously, I don't agree the sole purpose of marriage is procreation. Maybe a long, long, long time ago, when extinction was perceived as a real threat, but not today. How many people nowadays actually believe the human race will become extinct if homosexuals are allowed to marry?
C'mon! No tempest in a cup, please!

Evan Wolfson: You are right that marriage is not just about procreation -- indeed, is not necessarily about procreation at all. Many people, of course, choose to have children within the context of marriage -- people like my parents (thanks, Mom and Dad!). Raising kids within marriage is precisely what many gay people are seeking to do, amidst fierce (and unhelpful) right-wing attacks on their families.

At the same time, we all know that many people marry for reasons other than procreation -- think John & Theresa Heinz Kerry, Pat & Shelley Buchanan, Bob & Elizabeth Dole, or, for that matter, George & Martha Washington. We don't issue marriage licenses with a sunset provision whereby you have two years to produce a child or lose your license... and gay people have the same interest in the many other reasons why people want and exercise the freedom to marry.

The "important attributes of marriage," as the Supreme Court held in one unanimous case, are its "expressions of emotional support and public commitment"; its "spiritual significance" for many; the sexual fulfillment it may entail; and its role as a "precondition to the receipt of government benefits? and other, less tangible benefits." Or as the Massachusetts high court put it, the tangible and intangible "benefits accessible only by way of marriage license are enormous, touching nearly every aspect of life and death."

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Washington, D.C.: How do you think this ruling will affect the 2004 election assuming that Kerry is the Democratic elect? Kerry, being from Massachusetts, has already been accused of being a "Massachusetts liberal." This, of course is a fallacy. Do you think it will ultimately hurt his chances at becoming president?

Evan Wolfson: Freedom to Marry is non-partisan and we do not endorse candidates. In fact, we have advice to candidates of every party on our Web site at http://www.freedomtomarry.org/document.asp?doc_id=1033.

No public opinion poll ranks "attacking gay families" or "amending the Constitution" as a pressing item on America's"to do" list. Voters understand that our nation has real concerns -- national security, the economy, health care, terrorism, education -- and politicians who try to divide the country at a time when we need unity will, I believe, see that cynical electoral strategy backfire. Most Americans do not want a culture war; they want a better society for us all.

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Browerville, Minn.: When did the idea first appear that gay rights and race rights were comparable? I don't remember hearing it until recently?

Evan Wolfson: Actually, many civil rights leaders and other Americans have seen the parallels, as well as the differences, for quite some time. You might like to check out the information on the Web site of the National Black Justice Coalition -- www.nbjcoalition.org -- or take a look at the civil rights briefs filed in the Massachusetts freedom to marry case -- www.glad.org.

In 1996, for example, Congressman John Lewis, the last living speaker from the 1963 March on Washington, stood on the floor of Congress and opposed the anti-marriage bill (the so-called "Defense of Marriage Act") with these words:

"Let me say to the gentleman that when I was growing up in the south during the 1940s and the 1950s, the great majority of the people in that region believed that black people should not be able to enter places of public accommodation, and they felt that black people should not be able to register to vote, and many people felt that was right but that was wrong. I think as politicians, as elected officials, we should not only follow but we must lead, lead our districts, not put our fingers into the wind to see which way the air is blowing but be leaders.

Mr. Chairman, this is a mean bill. It is cruel. This bill seeks to divide our nation, turn Americans against Americans, sew the seeds of fear, hatred and intolerance. Let us remember the Preamble of the Declaration of Independence: "We hold these truths self-evident that all people are endowed by their creator with certain inalienable rights. Among these are life, liberty and the pursuit of happiness."

This bill is a slap in the face of the Declaration of Independence. It denies gay men and women the right to liberty and the pursuit of happiness. Marriage is a basic human right. You cannot tell people they cannot fall in love. Dr. Martin Luther King, Jr. used to say when people talked about interracial marriage and I quote, "Races do not fall in love and get married. Individuals fall in love and get married."

Why do you not want your fellow men and women, your fellow Americans to be happy? Why do you attack them? Why do you want to destroy the love they hold in their hearts? Why do you want to crush their hopes, their dreams, their longings, their aspirations?

We are talking about human beings, people like you, people who want to get married, buy a house, and spend their lives with the one they love. They have done no wrong.

I will not turn my back on another American. I will not oppress my fellow human being. I have fought too hard and too long against discrimination based on race and color not to stand up against discrimination based on sexual orientation.

Mr. Chairman, I have know racism. I have known bigotry. This bill stinks of the same fear, hatred and intolerance. It should not be called the Defense of Marriage Act. It should be called the Defense of Mean-spirited Bigots Act."

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Washington, D.C.: "Ask people to be fair ... Given a chance to think it through, people will come to the right place."

With all due respect Mr. Wolfson, this is pie-in-the-sky thinking. Our history shows that appeals to fairness and the belief that people merely need to "think things through" do nothing.

Fairness means nothing without demonstrating how the dominant classes can benefit from it. And no one can just "think things through" -- our media-saturated society constantly bombards people with ready-made spin, and if we don't have some of our own, then we're eventually going to suffer for it.

Evan Wolfson: I am not saying it will be easy, or that it will happen overnight or simply by wishing. All of us need to get involved now and make sure our voices are heard. But the history of our country is that when we engage and ask people, in Lincoln's words, to "think anew" about how they have been treating a vulnerable minority, America moves in the direction of equality and fairness.

Marriage has been a battleground before. In fact, we have, in our lifetimes, seen four major changes in the institution of civil marriage that were at least as "radical" as anything proposed here today: allowing divorce; ending race restrictions on marital choice;
assuring women's equality and completely altering doctrines such as "coverture" (i.e., eliminating married women's loss of legal identity, property, and rights);
barring the government from interfering in married and unmarried people's decisions about whether to have kids or use contraception (i.e., Griswold v. Connecticut, a court ruling Senator Santorum attacked last year). All of these were hotly fought over, but fortunately, our country got to the right place -- and few Americans want to turn back that clock (though the opponents of marriage equality for gay people do).

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Alexandria, Va.: With the issue of federal and state recognition still at issue (people in these marriages will still have to file as "single" status or face penalties), inheritances and benefits issues would be treated as "non-spousal" in most cases, SSA benefits would not apply and on and on ...

I mean, under the circumstances, what protection would these poor people actually benefit from?

Also, if the Massachusetts voters change the Commonwealth's constitution in 2006 then where would these people be? Would the marriages be valid? Rescinded?

As structured now, isn't the whole thing a little "hollow" and/ or non-applicable from that standpoint/argument?

Evan Wolfson: It's true that once same-sex couples can legally marry, they will for a time still face a patchwork of discrimination in some states and from the federal government ... though that eventually will change as people realize how illogical it is to force families to play "now you're married, now you're not." For a discussion of how the denial of the protections and responsibilities that come with marriage falls harshest on the most vulnerable -- people of lesser means, immigrants, people who are ill, kids -- please see "For Richer, For Poorer: Same-Sex Couples and the Freedom to Marry as a Civil Right" on our www.freedomtomarry.org Web site under "Essential Resources."

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Washington, D.C.: Thanks for doing this chat. What are the benefits of being married? Please share with the readers what are the benefits a couple gets when they are married that they don't get if they are not. Thank you.

Evan Wolfson: There are many important tangible protections and responsibilities that come through marriage -- in addition to the intangible but real security, clarity, and support that marriage brings.

These include access to health care and medical decision making for your partner and your children; parenting and immigration rights; inheritance, taxation, Social Security, and other government benefits; rules for ending a relationship while protecting both parties; and the simple ability to pool resources to buy or transfer property without adverse tax treatment.

A few examples:
Spouses are allowed to make life-saving decisions for each other without drafting powers of attorney or other complicated legal documents;
Spouses presumptively inherit each others' estates without the need for intricate wills;
Spouses may cohabitate in public housing units;
Divorce laws protect both members of the relationship and minimize the power of one partner to keep the other in a situation of domestic violence;
The spouse of a U.S. citizen may obtain residency in the United States without a long legal battle;
Married people may adopt the children of their spouses easily and cheaply;
Dependent health benefits are tax-free for a married couple, whereas an unmarried couple is taxed;
By filing jointly, married couples in which one partner has a much higher income pay significantly less tax than similarly situated unmarried couples.

But, of course, for most people, marriage is more than the sum of its parts... and more than a list of legal and economic protections. For gay people, too, it is about love as well as law, emotion as well economics, spiritual commitment as well as security.

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Washington, D.C.: In the polls that I've seen, people are more supportive of civil unions and granting similar rights to same-sex couples than they are of full-on marriage.
Do you think that the Mass. case will actually hurt your cause by pushing the envelope too far, too quickly? Why not give people a chance to get used to the idea of civil unions, and once they realize that Civilization As We Know It will survive, move on to the marriage issue?

Evan Wolfson: As Martin Luther King, Jr. said, "The time is always ripe to do right."

Canada has moved to end marriage discrimination, thousands of same-sex couples are now legally married, and Niagara Falls is still falling, but the sky has not. Americans are just as fair as Canadians, and once the dust settles, people will realize that families are helped and no one is hurt when gay people, too, are treated equally and our personal commitments to our partners are acknowledged under law.

As Frederick Douglass reminded us long ago: "Those who profess to favor freedom and yet deprecate agitation are people who want crops without plowing the ground. They want rain without thunder and lightning...." People should absolutely have the chance to get used to the idea of same-sex couples marrying and see that they didn't use up all the marriage licenses, no one is hurt, and we are all better off. And that is what our country is about to see.

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Alexandria, Va.: Mr. Wolfson, I think you're a great advocate for gay people's equality, and I thank you for your efforts. Let's face it, the issue at hand is not so much the status of marriage as it is the status of people who have historically been third- or fourth-class citizens, gay people.

I'm wondering why activists supporting our equal rights are so reluctant to engage directly the bigotry underlying the anti-marriage movement. Mainstream medical opinion says people do not choose to be gay, that people cannot change their sexual orientation, and that homosexuality is a normal, albeit minority variant of human sexuality.

The facts are on our side, but our activists engage in vague discussions of divisiveness and nondiscrimination instead of getting people to pull back from the emotional responses to homosexuality they were taught as children and rationally think this through. The first step to curing people of bigotry is to get them to recognize the problem. Homophobia isn't organic, it's taught. We gay adults had to unlearn the homophobia we were taught in order to gain self-respect. We need to get our straight peers to un-learn this prejudice, too.

Evan Wolfson: Yes, and I think each one of us has to have that conversation with our family, friends, neighbors, co-workers, and on outward. What has happened in the past decade is that despite a fierce right-wing campaign to "protect" marriage and attack gay families -- a campaign that was declared in Feb. 1996 by the usual right-wing suspects at a press conference in Iowa -- the center has moved toward support for gay families and marriage equality. When people hear about real gay people, not stereotypes, and think about the real impact on real families and kids... they move. And young people overwhelmingly support marriage equality because they have had the chance to grow up knowing that gay people are not some alien "others," not a threat, but their fellow Americans.

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Washington, D.C.: Quite frankly, it's simply wrong, wrong, wrong. It's issues like this that are keeping our children as confused as a box of marbles. I say "hogwash" to all that, "as long as two people love each other" mess. Heaven help this country ...

Evan Wolfson: And one of the great things about America is you are free to believe what you believe, and I am free to believe what I believe... but government and constitutions should not be used as weapons. Rather, we should all be equal under the law, free to contribute to our country and communities, love our families, and exercise our inalienable rights to life, liberty, and the pursuit of happiness.

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Evan Wolfson: Freedom to Marry is the gay and non-gay partnership working to win marriage equality. Please visit our Web site at www.freedomtomarry.org and get involved in this civil rights moment.

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