Waiting, not wedding

Fighting for the right of same-sex marriage

by Neil Miller

The Rev. Jan Nunley has drawn her personal line in the sand. The Episcopal priest and rector of St. Peter's and St. Andrew's Church in Providence refuses to sign marriage licenses -- for anyone -- until gay and lesbian couples have the same legal right to marry as heterosexual couples. She took this stand in September 1996, the day after President Clinton signed the Defense of Marriage Act (DOMA), barring federal recognition of same-sex marriages. "I woke up that morning and I thought, `I just can't do this anymore,' " she recalls. "It's just not fair."

Nunley still celebrates the sacrament of marriage for heterosexual couples in her church. She blesses gay unions, too -- although her bishop won't allow her to do so on Episcopal property. (The denomination is badly split on the issue.) But as for signing marriage licenses, forget it. Not until same-sex marriage is legal, Nunley says.

Actually, that could happen sooner than most people expect. Right now, no state recognizes marriages between members of the same sex as legally binding. But last November, the Vermont Supreme Court heard oral arguments in a lawsuit of three gay couples seeking the legal right to marry. Now, with hopes for same-sex marriage in Hawaii fading after the passage in November of a statewide constitutional amendment restricting marriage to a man and a woman, advocates have turned their eyes towards Vermont. With its liberal high court and progressive reputation, they see the state as the most likely place for a breakthrough.

"We know gay marriage will eventually come," says Kate Monteiro, president of the Rhode Island Alliance for Gay and Lesbian Rights. "The question is, when will one court get brave enough to take the first step. Is Vermont brave enough?"

That's the big question. And no one knows exactly when the Vermont court will rule. "It could be any Friday from here to eternity," says Gary Buseck, executive director of Boston-based Gay and Lesbian Advocates and Defenders (GLAD), and co-counsel in the Vermont case.

Rev. Jan Nunley

In the meantime, gay and lesbian couples in Rhode Island are waiting with anticipation. "In Rhode Island we are in a holding pattern," Monteiro says. "A lot of people are anxious for a favorable verdict and will go to Vermont to be married." A proposed statewide domestic partner bill -- which would give gay and unmarried heterosexual couples many of the same legal rights as married couples, but without the word "marriage" attached -- is on hold, too, its supporters waiting to see what happens in Vermont.

While the justices in Montpelier ponder their decision, same-sex marriage remains as controversial and polarizing as ever.

Proponents and opponents don't even seem to speak the same language. Those in favor, like the openly-gay state Representative Michael Pisatauro (D-Cranston), frame the argument in terms of equal rights. "It's not a fight about marriage," he says. "It is a fight about justice. It could be about trash collection, if gay people were singled out for discrimination." The Rev. Nunley is critical of a system in which a straight couple, "who have known each other for about 10 minutes," can get legally married, while a gay couple who have been together, "through years of ups and downs," can't.

And supporters emphasize that gay couples inhabit a kind of legal limbo, even when they have been together for years. Not only do they lack the respect and often the stability that a marriage license brings; They also don't have the rights and privileges that heterosexual married couples take for granted -- from medical decision-making to ensuring that pension and social security benefits go to the surviving spouse, and "family" membership rates at the local YMCA. According to Monteiro, there are some 1700 federal and state laws addressing marital status, from which gay couples are excluded. "It is everywhere in the law," she says.

Those opposed to same-sex marriage see it quite differently -- as a threat to longstanding cultural norms. "I have been married for 45 years and could never tolerate it or support it," says state Senator Catherine Graziano (D-Providence). "No one wants to do away with the traditional image of marriage."

If same-sex marriage does become legal, the law wouldn't require churches to marry gay couples. Currently, only the Unitarian-Universalist church and the United Church of Christ bless gay and lesbian relationships. In the divided Episcopal church, for example, Nunley doubts legalization of same-sex marriage would have much effect. "I might wind up being able to do something legally that I can't do sacramentally," she notes.

For Rhode Islanders, a major question is whether a same-sex marriage that is recognized in Vermont would be recognized here, just as out-of-state heterosexual marriages are. In legal language, that's called "full faith and credit." No one knows the answer. "Will a Vermont marriage be honored in Rhode Island?" asks Monteiro. "We hope so. But it is unclear."

Given the legal ambiguities, some gay couples aren't waiting to find out. Regardless of what Vermont decides, Amy Black, 24, a community organizer at Ocean State Action, and her partner, Karen Hanecak, also 24, who works at an environmental consulting firm, plan to have a big wedding celebration next summer in Provincetown, Massachusetts. "If Vermont legalizes gay marriage in the next year, it might change our plans, but I doubt it," says Black. "Because a marriage would be legal in Vermont, but not in Rhode Island." And she adds, "I always said until gay marriage was legal, I didn't want to do it. But things change when you fall in love."

Black and Hanecak have already decided what they are going to wear on their wedding day: they will wed in plain silk dresses.

"We want it to be classic," says Black.

Representative Pisatauro anticipates that, should Vermont approve same-sex marriage, the issue of "full faith and credit" will wind up in court here. The way it would go, he suspects, is that a Rhode Island gay couple married in Vermont would attempt to gain access to a marriage-related right in Rhode Island -- say, a bank loan based on a spousal guarantee. If the couple were denied such a right, they would then file a lawsuit demanding recognition of their Vermont marriage license. "There will be lawsuits and court cases all over the country," says Pisatauro. "It will be a very long process and a convoluted and confusing one. There could be a dozen court cases just in this state."

One advantage that advocates of gay marriage in Rhode Island have over those in other states is that Rhode Island never enacted a Defense of Marriage Act. Such laws, now on the books in 30 states, bar recognition of same-sex marriages approved in another state. (The laws were rushed through a number of legislatures after Clinton signed the federal Defense of Marriage Act, which gave states the green light to enact such legislation). In Rhode Island, the House Judiciary Committee killed a DOMA bill two years ago.

Some gay rights supporters worry that should the Vermont court legalize gay marriage, someone in General Assembly could reintroduce DOMA here. "Basically, there has been an agreement between the parties to leave it [DOMA] alone," says state Representative David N. Cicilline (D-Providence). "But that can change and is likely to change if Vermont decides in favor of same-sex marriage. The issue would not be abstract then." Sen. John Roney (D-Providence), the vice chairman of the Senate Judiciary committee, is even more emphatic. "Under the stimulus of Vermont," he says, a revived DOMA-type legislation "would pass in an instant."

Senator Graziano

For her part, Senator Graziano, one of the leaders of the pro-life forces in the General Assembly, says that if the issue of same-sex marriage became center-stage, "There would be a hue and cry" against it. "My constituents would come out of the woodwork on this."

Should the Vermont court delay ruling on gay marriage or decide against it, one issue that is likely to emerge in Rhode Island is domestic partnership legislation. Supporters of the idea tout it as a compromise between full marriage rights for same-sex couples and the current legal limbo. Such a bill -- still in the planning stages -- would propose the creation of a new, state-sanctioned relationship category that would give gay and unmarried heterosexual couples many of the same rights and benefits as married couples in areas such as health care, insurance, pensions, and the like.

The General Assembly has been moving cautiously in this direction, passing laws on health care visitation and funeral planning that enable people, respectively, to designate individuals other than family members to visit them if they are severely ill or to make decisions about their funeral.

Representative Cicilline argues that the key is to give legal recognition to gay couples, whether or not one uses the word "marriage." "My position is that it is important for all people to have the same rights," says Cicilline, who came out as gay in an interview with the Providence Journal in early April. "If we accomplish it with different language, so be it."

And state Senator John Roney (D-Providence) sees domestic partnership legislation as the more realistic course, given the fierce opposition that same-sex marriage engenders. "There are glaring inequities that should be addressed any way we can," says Roney, who is vice chairman of the Senate Judiciary Committee. "Domestic partnerships would give, piece by piece, the attributes of marriage. There is nothing we couldn't approach under domestic partnerships." And a domestic partnership bill could have a broader appeal than gay marriage, he contends, because the majority who would benefit from it are heterosexual couples.

Roney says that he explored the possibility of trying to introduce a domestic partners bill in the last legislative session, but the gay community was ambivalent, preferring to wait and see what happened in Hawaii or Vermont. Without their support, the effort was not worth it, he says. "I think that their reliance on Vermont and Hawaii is misplaced," says Roney. But Representative Pisatauro doesn't want the gay community to "settle" for domestic partnership legislation, if they can obtain full marriage rights.

However, a domestic partnership bill might not necessarily find much more support than same-sex marriage. Representative Joseph McNamara (D-Warwick), a member of the House Judiciary Committee, doubts that the committee would approve domestic partnerships, although he emphasizes that he himself has "no preconceived notions." Senator Graziano says that her constituents look on domestic partnership "in the same category" as same-sex marriage. "They shudder at the idea of benefits for people who cohabitate," she says. "It is looked upon as kind of an insult to hardworking people." She notes that there are many companies in Rhode Island that don't offer health benefits to their own employees, let alone to "significant others." "People would seriously oppose this idea at a time when we're not even providing benefits to hardworking citizens," Graziano says. "I would be leading the fight against this."

Both Cicilline and Pisatauro agree that domestic partnership legislation shouldn't go forward in Rhode Island until Vermont makes its decision. Pisatauro says he "anticipates" a 4-1 or 5-0 victory in the Vermont Supreme Court. Lawyers involved in the case are loathe to make that kind of prediction, but they believe that the way the Vermont Supreme Court justices approached the case during oral arguments offers grounds for some optimism. The justices "asked very penetrating questions," says Mary Bonauto, civil rights director at GLAD in Boston, who has worked closely on the Vermont case. "They definitely had a sophisticated understanding of contemporary reality."

And Bonauto ticks off a number of things that she sees as "encouraging" about Vermont: the state has no sodomy law; second parent adoption was recently codified by the legislature after a court decision; the state offers domestic partnership benefits for state employees. She also notes that after Hawaii's Traditional Values Coalition sent a letter in April to every household in Vermont urging them to "defend traditional marriage," the state's lieutenant governor, speaker of the House, and the Rutland Herald, one of the leading dailies came out in favor of gay marriage.

Even in Hawaii, the issue isn't quite dead, yet. The Hawaii Supreme Court still hasn't made a final ruling on its gay marriage lawsuit that triggered last year's statewide vote. Evan Wolfson, director of the Marriage Project at the Lambda Legal Defense and Education Fund in New York City and co-counsel in the Hawaii case, argues that while the passage of the constitutional amendment, "throws up an extra roadblock," it doesn't rule out victory in court. But, at this point, Vermont seems a better bet.

Meanwhile, Rhode Island's gay and lesbian community continues to look northward. "Within the community, there has been a real opening of expectations in recent years," Monteiro notes. "It is not new that gay people want to marry. What is new is allowing ourselves to hope." But Monteiro knows a favorable Vermont decision is no "magic bullet." Instead, she says, "It would be a big step on a very long staircase."

Neil Miller can be reached at mrneily@aol.com.