In a Swinging State

by by Katie Lindstedt

It wasn’t an ordinary kiss that Axel and Eigil Axgil shared as they rode away in a horse-drawn carriage to a crowd of onlookers. On October 1, 1989, the Axgils were legally married in Copenhagen’s city hall, becoming the first same-sex couple to ever enter into legal marriage.
But in the United States, 20 years since that milestone, the legislative status of such unions has remained less consistent, even as the political debate surrounding their legalization stirs perennial controversy.
For its advocates, same-sex marriage is the great civil rights battle of our age. Recent progress toward legalization of gay marriage has been frustrated—and in some cases thwarted—by opposition.

The history of the gay marriage movement over the past 20 years is a back-and-forth narrative, a timeline of overturned victories—of both proponents and critics—and laws that apply in one state but not another.
In 1995, former Republican Governor of Utah Mike Leavitt signed the first state Defense of Marriage statute into law, which stipulated that the state is not obligated to recognize out-of-state same-sex marriages.
A year later, President Clinton signed the federal Defense of Marriage Act (DOMA) into law, upholding states’ rights to ban same-sex marriages.
The term “civil union” first entered American vocabulary in 1999, when the Vermont Supreme Court ruled a state law denying same-sex couples the benefits associated with marriage was unconstitutional. The Vermont legislature created the new status of “civil union” as a compromise that would endow same-sex couples with the same rights and benefits of married heterosexual couples.
In 2000, Nebraska voters approved a constitutional ban on same-sex marriage. Two years later, Nevada followed suit and set a trend; over the course of the decade, 41 states have passed statutes banning recognition of gay marriage, 26 of which have amended their constitutions to do so.
In 2003, the Massachusetts Supreme Judicial Court gave gay marriage proponents a victory, ruling that the state constitution guarantees equal marriage rights for same-sex couples.
California’s history of gay marriage is particularly complicated. In February of 2004, San Francisco Mayor Gavin Newsom authorized city officials to marry same-sex couples; a month later the California Supreme Court ordered the city to stop. Last fall, Proposition 8 undid the California Supreme Court’s May 2008 ruling that denying gay marriage is unconstitutional. California gay rights groups are planning a counter-amendment granting the right to marry, but the pendulum swing of legislation has left the LGBTQ community waiting for true stability.
In Maine, the fate of a gay marriage law reflected the outcome in California; in early November voters overturned a law permitting same-sex couples to wed.
On Wednesday, the New York State Senate defeated a bill, introduced by Governor David Paterson in April, that would have legalized same-sex marriage. The state currently recognizes out-of-state same-sex marriages.
New Jersey has accepted applications for civil unions since February 2007. New Mexico, however, has no same-sex marriage legislation. At present, only Massachusetts, Iowa, Vermont, New Hampshire, and Connecticut legally recognize gay marriage. Connecticut legalized gay marriage on October 10, 2008. Iowa, Vermont, and New Hampshire followed in 2009.
Washington and Oregon remain in a similar state of limbo. In 1998, Washington state passed a Defense of Marriage Act. In 2007, the state offered limited rights to registered domestic partners. On May 18, 2009, Governor Christine Gregoire signed into law a civil-union-esque measure that extends all state-level spousal rights to same-sex couples. In November, voters affirmed the state law by passing Measure 71.
Although Oregon has had a constitutional ban against gay marriage since November 2004, the state enacted a domestic partnership that extends all state-level spousal benefits to same-sex couples in May 2007.

According to Robert Self, an Associate Professor of History at Brown University, the dominance of the contemporary gay marriage movement stems from two primary factors: the formation of public LGBTQ families during the 1970s and the impact of AIDS.
It was perhaps these two historical trends that initially depicted the depth and breadth of marriage’s legal significance. Marriage confers a vast array of legal rights, typically including some 400 state benefits and more than 1,000 federal ones. For example, only legally married couples are guaranteed the right to joint parenting and adoption, next-of-kin status for hospital visits, joint insurance policies, and automatic inheritance in the absence of a will. The majority of these benefits cannot be privately arranged or contracted for.
Kathy Kushnir, Executive Director of Marriage Equality Rhode Island, views marriage as a “broad stroke that encompasses so many different rights and responsibilities, plus a certain familial recognition.”
Self notes that the formation of such families with children illuminated the impact of marriage laws upon childrearing; marriage became important through the construction of families. The close ties between child custody and marriage laws surfaced as members of LGBTQ communities publicly came out after choosing to dissolve their straight marriages. Often, individuals attempted to raise the children of these former marriages with their same-sex partners. The struggle for gays and lesbians to adopt their partners’ biological children—and the construction of new LGBTQ families altogether—shed light on the relevance of marriage.
In the 1980s, the AIDS epidemic further exposed the scope of benefits associated with marriage. Members of the LGBTQ community struggled with medical problems, but their partners were not considered immediate family members and denied hospital visitation rights.
The relationship between these rights and marriage is still problematic for many same-sex couples. Just two years ago, Janice Langbenh could not visit her partner, Lisa Marie Pond, at Jackson Memorial Hospital in Miami where she died. The two women were on a cruise when Pond suffered an aneuyrsm. Langbehn sued the hospital for emotional distress. Self attributes the contemporary gay marriage movement in part to “the complexities of dealing with the medical system when you lack marriage rights.”
Self cites the rise of the conservative movement’s family values rhetoric and the prominence of health care as a social issue as additional forces that sharpened the relevance of gay marriage. Corporations frequently provide married couples with health care as a spousal benefit. He notes that these factors became more prominent throughout the 80s and 90s.

While the publicity of gay marriage has increased over the last ten years, the stability of marriage as an institution has decreased; for one thing, there are more unmarried households than married ones. The growth of the gay marriage movement and the changing nature of the institution of marriage are occasionally at odds with one another. Marriage seems at once increasingly obsolete and, to the LBTQ community, more significant than ever before.
Self acknowledges this tension within the gay marriage movement itself. He has encountered members of the LBGTQ community who are trying to adopt and form families as well as those who speak of marriage as a “bourgeois, oppressive system” and accuse lesbians who choose to adopt sons as “raising oppressors.”
“The gay marriage movement is not ideologically pure,” he said. “No movement is.”
Kushnir believes that the changing significance of marriage affects the LGBTQ community as well. “I would say that marriage is an individual choice, a personal individual choice. If that’s the way you want to structure your family, your relationship, you need to have the right to do that. Just because the LGBT community achieves the right to marry doesn’t mean that they will choose to do that.”
Despite America’s lack of consensus on gay marriage legislation, Amoureux views same-sex marriage as a nascent

social institution that is inherently—and paradoxically—liberating.
Because gay marriage is still largely undefined, Amoureux said, “in a queer relationship you have the opportunity to construct marriage as you would like it to be. There’s a lot more freedom, a certain queer freedom.”

Many believe that states should preserve marriage as an act between one man and one woman because it promotes procreation and healthy childrearing practices.
Mazaris takes offense at the implication that same-sex couples cannot raise a healthy child. “I didn’t get pregnant by accident. We didn’t just fall into parenthood. It was a really planned, thoughtful process that was not undertaken lightly. I actually find it really offensive and insulting when people suggest that gay people can’t be good parents or that we’re somehow destroying the fabric of the family.”
She and Amoureux, who identifies as male, recently decided to switch their 16-month-old daughter Ocean from part-time to full-time daycare. “That was a little scary for us,” she said. “It was the first time we were out in the world as a queer family, looking for a specific service, but we were treated very well.”
The family is well-acquainted with the almost arbitrary nature of state law. Rhode Island law allowed Jack to adopt Ocean, but her home state of Idaho would not have recognized the family. Next summer, when Jack and Angela marry, they will have two ceremonies—each in a different state.
“We will be having our ceremony here in Rhode Island and we may also have a legal ceremony in Massachusetts or another state that recognizes gay marriage,” Mazaris said.

Gay marriage has come to dominate the current gay rights movement as a talking point in recent elections. But there are other significant, though less frequently discussed, legislative goals, like an Employment Non-Discrimination Act and the overturning of Don’t Ask Don’t Tell. It was only several weeks ago on October 28 that President Barack Obama signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act into law, which expanded the definition of federal hate crimes to include those committed on the basis of a victim’s sexual orientation.
The academic pursuits of Amoureux, a Political Science PhD candidate at Brown University, reflect his view of the overall relevance of marriage to the LGBTQ community. He researches the international refugee policies for LGBTQ people.
“On the one hand, I think that marriage is very important and I see its impact in my own life on a very personal level,” he says. “As a political scientist who studies international politics, I am aware that gay people in this country—and in other countries—face more dire situations. Their very lives and security can be threatened.”
Though Amoureux is critical of what he perceives as the LGBTQ community’s overemphasis on gay marriage, he understands the resonance of marriage as a social institution.
“We’ve grown up learning lessons of history that involve equality through legal rights. To be denied something as basic as marriage just strikes a lot of gay people as wrong,” he says.
Kushnir agrees, viewing the absence of gay marriage legislation as a reminder that not all members of American society are equal. “I think that we have to take a look at just leveling the playing field for the LGBT community and making sure that all people are treated equally. Probably the broadest stroke you can take to make that happen is treating all couples, all relationships equally.”
The status of gay marriage remains in Rhode Island as it does elsewhere: undetermined. State law does not permit same-sex marriages, but that has not prevented Rhode Island from recognizing those performed in Massachusetts. Kushnir hopes the state will pass gay marriage legislation in the next election.