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States of Marriage

01/02/10 2:00PM
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Transcript - "States Of Marriage: The Debate Over Gay Rights"

Gay Marriage. Those words are emotional, personal and very public

(Joseph Watson) "We exchanged vows and rings in ‘93 and that was really when I think of when our marriage began."

(Frank Schubert) "The people of this nation don't want marriage to change."

(Marc Solomon) "In 20 years people will wonder what the heck we were all so excited about." 

I'm Jane Lindholm, and this is "States of Marriage." 

In the next hour, we'll examine why this issue has some raising the pride flag and others raising picket signs. From the groundbreaking legal claims in New England; to the surprising decision in Iowa; and the pitched battle over Proposition 8 in California -- we'll listen to the stories of people on both sides and learn why this has become one of the most controversial debates of our time.

We begin in Vermont, a state that started a firestorm of controversy when it became the first to legalize same-sex unions.

Several dozen people gather under the warm sun near the shore of Lake Champlain. Two women are the center of attention: this is the couple's third ceremony in their 37-year relationship. They made their partnership official for themselves in the 1970s when no state or court would do it for them. Nearly a decade ago they got a civil union. And now, on this September day in 2009, Lois Farnham and Holly Puterbaugh are getting married: 

(Two ministers, in unison) "By the authority vested in us as ministers of the Church of Jesus Christ, and through the law of the State of Vermont, we now declare you joined in the holy covenant of marriage. Those whom God has joined together, let no one separate!" (Wedding guests applaud.)

A few weeks before their wedding day, the couple sat at a picnic table outside their red brick home in Burlington. Holly remembers the day Lois walked into her life:

(Holly Puterbaugh) "1972, summer school. I was teaching math at UVM.  And I walked into class one day and looked out, and there was a tall, lanky gray-haired woman in the first row.  And after the semester was over, we started a friendship. And I may as well throw in now, which is hard for young people to believe, but at that point I didn't know the word lesbian. I did not know that this was something, anything. I just knew that there was this person who I was strongly attracted to."

Their friendship grew, they shared books, took long walks and then one short-term separation made them realize they wanted to be together. They raised foster kids, adopted a daughter, participated in their church, traveled widely, and lived their lives quietly and privately.

That is, until the mid-1990s, when Lois and Holly heard about a community meeting.

(Lois Farnham)  "So we went to this uh.... queer... Queer Town Meeting. That's what they were called. I still hate that word.  But anyway, one the topics for that day was marriage. So we went and got our eyes wide open. Because we did not realize, even though we had been together for a number of years at that time, the number of differences- legal things- that we were not accessible to."

Some of those "legal things" included making medical decisions for a partner in the hospital, access to a partner's Social Security benefits, and the right to file taxes as a married couple.

That eye-opening workshop was conducted by a lawyer in her early thirties, Beth Robinson. She and her law partner, Susan Murray, laid the groundwork for the court case that would test Vermont's marriage statutes.

Robinson was intent on learning from the failed attempts in other states.  She followed a case in Hawaii in 1993, where the state Supreme Court ruled in favor of same-sex marriage, and then she saw voters overturn it with a constitutional amendment.  In Vermont, Robinson wanted an argument that would win.

(Beth Robinson) "Our first move here in Vermont was not to file a court case but to found the Vermont Freedom to Marry Task Force, which we did in the fall of 1995.  We knew that we needed to establish an infrastructure, begin doing public education and organizing."

By 1997 the Freedom to Marry Task Force was ready to move forward. Lois and Holly, who had then been together 25 years, were ready too. Holly Puterbaugh:

(Holly Puterbaugh) "At some point, Beth Robinson and Susan Murray started saying, we are coming to a point where we'll need to file a lawsuit, and we'll need plaintiffs. Lois and I both sort of threw our hat in the ring and said we would consider it.  And finally one day, Susan and Beth sat us down and painted the worst possible, bleakest picture of what could happen, up to - somebody could decide to kill us. And said, ‘If you want to follow through, you need to know that these things could happen.'"

They wanted to follow through. That spring, Lois and Holly, along with two other same-sex couples, applied for marriage licenses in their towns. All three couples were denied.  But that was the point.  Their lawyers now had the basis to argue discrimination, and that marriage should be extended to same-sex couples.  The case was Baker v. the State of Vermont.

Supporters of same-sex marriage weren't the only ones paying attention to what had happened in other states.

(Craig Bensen) "Some folks who had been involved in the Hawaii battle called some folks in Vermont and said, ‘You should hear what our experience has been out here because we see the same thing coming down the pike in your state,  you should have a little heads up.'"

Craig Benson has been a pastor for 30 years, and he's affiliated with an independent church in the small town of Cambridge, Vermont.

(Craig Bensen) "We've always been advocating for what came to be called ‘traditional marriage,' which we prefer to just call advocating for marriage. The changing of the definition was part of what we were opposed to."

Bensen says his opposition to legal rights for gay couples isn't about religion - it's about what he calls "social norms":

(Craig Bensen) "Essentially, every child needs a mom and a dad to be able to develop their full potential as a human being. And it's in the state's very vital interest to preserve that model as the core that receives state sanction, blessing, promotion, funding, etcetera."

Bensen began meeting with other organizers who objected to the rights that the Baker plaintiffs were seeking.  They formed an organization, "Take It To The People," and argued that the public should decide the gay marriage question, not the courts or the Legislature.  

As lead attorney in the case, Beth Robinson delivered opening arguments to the Vermont Supreme Court.  Plaintiff Holly Puterbaugh recalls the media circus that was brewing outside:

(Holly Puterbaugh) "... to have CNN and everybody interviewing you. And then we walked out of the Supreme Court building and there's all of these press people with their cameras walking backwards taking pictures of us.

Attention was on the plaintiffs, and it was also on the five justices who would decide the case.  In December 1999, more than a year after opening arguments, the ruling came down: same-sex couples deserved the same rights as heterosexual couples. But there was a catch: the court told the Legislature to decide how those rights would be granted. 

(Howard Dean) "And basically they said, you gotta get equal rights under the law and we don't care what you call it. Which I thought was pretty ingenious."

Howard Dean had been governor of Vermont for eight years when the ruling was announced. Just hours later he staked out his own position: the Legislature should satisfy the court's ruling, but not pass a marriage law.

Dean also made a comment that day that, afterward, he would have to explain and defend:

(Howard Dean) "As in many things that I do, I probably shouldn't have said it but it's what's I was thinking and I think it was what most Vermonters were thinking. I said, ‘Look, I'm uncomfortable with same-sex marriage, same as everybody else.'  Well there was a big to-do about that. But you know I was where most Vermonters were."

Vermont doesn't make law through ballot initiatives, so if public opinion was against the idea, it would be expressed through pressure on the citizen legislature. The question of same-sex marriage was becoming what advocates had wanted to avoid: a legislative battle.

(Hearing begins) "Rules of the assembly require that we all behave ourselves, try to be polite to each other, respect each others opinions...."

That winter, Vermonters braved the snow and packed the Statehouse to stand up and give testimony on marriage. Round after round, citizens were given two minutes to speak their piece. Hundreds of people pleaded with lawmakers to right an injustice, or to preserve the sanctity of marriage.

(Excerpts from 1/25/00 public hearing)

(Man) "It concerns me that without traditional marriage intact, the children of our state will be victims of confusion and a lack of a strong standard."

(Woman) "The question is not only should they be allowed to marry, but are gay and lesbian Vermonters worthy of respect and acceptance?"

(Man) "For centuries marriage between a man and woman has been the glue that has held societies together."

(Woman) "As a woman living in a committed, loving relationship with another woman with whom I am raising her two sons, I live a secretive life out of fear."

(Man) "...and would ask that this body of lawmakers not bend to political pressure to legitimatize this behavior by calling it marriage."

The House Judiciary Committee took up the issue first, and spent a month determining how to proceed.  Should they attempt a bill legalizing same-sex marriage, or create a separate, parallel institution? 

Several individuals were key to the politics of the issue throughout that winter. One of them was Representative Bill Lippert, then vice-Chairman of the Committee. He was also the only openly gay member of the Vermont Legislature.

(Bill Lippert) "It's hard to recreate the fact that in the year 1999, prior to the Baker decision, there was no gay marriage legally established anywhere, not only in the United States, but anywhere in the world. Now, I've got to tell you I've had numbers of conversations with people who would say to me, ‘I just don't understand why you didn't just do gay marriage in 2000, why did you settle for civil unions? After all there was marriage in blah blah blah, and blah blah blah country.' And I have to remind them, no, there wasn't actually. I can assure you, we took the testimony. It really did not exist."

So, after weeks of hearings, the committee put forth a bill to create a new institution: civil unions. The idea was to grant the same benefits of marriage but without the title.  Even that would face a tough fight.

Angry protesters from out-of-state became commonplace; one group even rented a storefront near the state capitol. The lawmakers in Montpelier, all of them part-time public servants with no offices or staff, had their mail screened in a separate building. The intensity of the issue, and the pressure on the legislators was unprecedented.

As the bill was debated on the floor of the House of Representatives, observers packed the visitors' gallery and lined the walls of the chamber.

(Excerpts from House floor debate)

(Rep. Nancy Sheltra) "I will not support the legalization of sodomy, the tearing down of traditional marriage in this country by the passage of this law."

(Rep from Newbury)  "I haven't heard anything in this bill that I consider to be a threat to my traditional marriage or any other traditional marriage. I'm going to vote for this bill."

(Rep. John LaBarge) "I believe in the importance for children to search back and find out their heritage, to know who their father was, and where their father came from - and not be able to trace him back just from the corner sperm bank."

(Rep. Francis Brooks) "We can't take a person and set them aside.... We can't take a person and suggest that there's a difference and we can deny them rights."

(Rep. Nancy Sheltra) "I believe that we are really putting ourselves in a dangerous situation in regard to a judgment from the Almighty God. Thank you, Mr. Speaker."

It took twelve hours of debate on the House floor, before the bill ultimately passed - 76 to 69. 

Getting through the House was just the first hurdle.  Debate began anew in the Vermont Senate. More testimony, more arguments, more passionate pleas from people on both sides of the issue. By the time the bill passed in the Spring of 2000, Vermont was exhausted.

Governor Dean avoided attention when he signed the bill into law. There were no reporters or photographers to document that historic moment, no public signing ceremony - which garnered criticism from many observers. A decade later, Dean still remembers the mood in his office that day: 

(Howard Dean) (Pause, loud exhale.) "It was very emotional, even among my staff. It was incredible. Um. It was in many ways a crystallization of what we all stood for. It was why, why we were in politics." (Loud exhale) "It's amazing I can get this emotional about it 10 years later."

Even now, his eyes redden at the memory:

(Howard Dean) "Most public servants, never get a chance to do something like this. I think the civil rights laws in the 1960s were like this, where the absolute nature of your soul is tried by, by doing something like this. And there are so many people that have been in- and if you miss the boat, you dodge the vote, then you've wasted your whole life in politics. Because you've really never accomp- you know, you can change the tax law, and the state education formula, and even universal health care, which is my passion, is a big deal. But there are sometimes when you have to see who you are as human being at the deepest level that, that you're in. And that was, that was what was happening in my office when I signed it. (Loud exhale.) 

At the time, though, the enactment of civil unions wasn't universally accepted as a meaningful triumph of humanity.

That summer in the small towns of the Green Mountains, black and white signs appeared on road sides, barns and car bumpers: "Take Back Vermont."  There were other political issues that fueled the "Take Back Vermont" sentiment, but civil unions were a driving factor. Craig Bensen from Take It To The People explains:

(Craig Bensen) "The coalescence was over the idea that someone had taken away what we had always considered Vermont to be, which was belonging to the people. And when our elected representatives tell us very clearly time after time in big ways that they don't want to know what the people want, or they don't care what the people want, then it's time to Take Back Vermont."

Gay marriage advocate Beth Robinson:

(Beth Robinson) "...people think how ugly it got.  It did get ugly, but it actually didn't get ugly until somewhat later." 

(Crowd surrounds Howard Dean in Williamstown, summer 2000)

(Man in a crowd) "We've seen you down in San Francisco being hugged by all those gays and lesbians!"

(Howard Dean) "That's crap! You haven't seen any such thing..."

(Man) "That isn't crap! It was right in the Times Argus!"

That summer, Howard Dean felt the wrath of voters as he campaigned for re-election and traveled the state.

(Man) "...the people were hugging you and trying to touch you."

(Dean) "I thought you said there was a picture?"

(Man) "No, but it says your what your words - ‘Oh, I'm so happy to endorse this, civil rights!'"

(Second man in crowd) "Are you a bisexual?"

(Dean) "Guys, look...." (crowd noise continues)

Marriage advocates say people in the gay community felt fear for their safety as the campaign season grew more heated. Years later, Governor Dean revealed that he wore a bullet-proof vest for much of that summer and fall. 

Election Day in the fall of 2000 was largely a referendum on civil unions.  Dean held onto the governor's office with just a hair over 50 percent of the vote. Democrats barely kept their majority in the state Senate. But in the House of Representatives, 16 lawmakers who supported civil unions were turned out of office, and Democrats lost control of the chamber. Angry voters had made themselves heard.

The outcome in Vermont was not entirely the victory that gay rights advocates had hoped for.  Civil unions was short of their goal, and the public backlash was chilling.

Yet soon, Vermont's historic law would be overtaken: advocates in Massachusetts were already strategizing to move beyond civil unions. Coming up, legal marriage takes hold for gay and lesbian couples. I'm Jane Lindholm and this is "States of Marriage."

(Sound of California protesters) "We're here! We're queer! We're married! Get used to it!"



(Marriage ceremony, Massachusetts) "By the power vested in me by the Commonwealth of Massachusetts, I hereby pronounce you legally married. Amen!" (Crowd cheers)

Vermont's civil unions law was a momentous step for supporters of gay rights. But those advocates had fallen short of what they really wanted: marriage.  So, in 2001, when seven couples filed a case against the Commonwealth of Massachusetts, they changed the argument. Lee Swislow is executive Director of Gay and Lesbian Advocates and Defenders, in Boston:

(Lee Swislow) "Civil unions are not the same...People understand what marriage is; it says what your place in society is; it's universally understood.  And in GLAD's subsequent work in Massachusetts and since then it's been very important to us to make sure that we don't just talk about the rights and benefits but talk about the much deeper meaning of marriage in this society."

In the case Goodridge v. Department of Public Health, advocates argued that all people have the same access to rights under the Massachusetts constitution, and that marriage was one of those rights. In November 2003, the Massachusetts Supreme Judicial Court ruled 4-3 in favor of the plaintiffs. The court said the existing marriage law was unconstitutional and directed the Legislature to fix it.  Lead attorney Mary Bonauto:

(Mary Bonauto) "Some court has had the courage to say ‘this is about human equality and dignity and it's time the government treat these people fairly."

(Kris Mineau) "I was a pastor in my church, and preparing a sermon in my office when the secretary came running down the hall saying, ‘Pastor Kris, you will not believe what the Supreme Judicial Court of Massachusetts has just announced, that marriage is no longer the union of one man and one woman.' And it sent a shockwave through me.  I can remember that day very vividly."

Kris Mineau had gone into ministry after 35 years in the Air Force.  The day the Massachusetts high court handed down its decision to allow same-sex marriage he went from pastor to protester, and soon after became the spokesman for the Coalition for Marriage and VoteonMarriage.org.

Even as the first same-sex marriages were being performed in May 2004, a new legal battle was beginning over a constitutional ban that would trump the Supreme Judicial Court's ruling.   Opponents started a petition that would force the Legislature to vote on an amendment to the state constitution:

(Kris Mineau) "We had 60 days to collect the signatures.  In 60 days we collected the largest number of signatures ever gathered in the history of Massachusetts: 170,000 of them...There was no doubt that the citizens were highly motivated to get that amendment on the ballot." 

On the other side of the debate, same-sex marriage advocates were working on the "hearts and minds" of legislators.  Marc Solomon was Executive Director of Mass Equality:

(Marc Solomon) "We were all about people telling their stories.  We had a campaign sort of called, ‘you're not fully out until you're out to your legislator.' Once couples started getting married on May 17...we got the contact info of all the couples that were married...and then called them and said, you know, especially ones in target legislative districts, we really need your help.  We really need you to sit down and tell your story and talk about marriage."

The "hearts and minds" campaign was ultimately successful: in order for a constitutional amendment to get on the ballot in Massachusetts, a quarter of the legislature has to support it in two consecutive sessions. The first year it did.  But on the second vote the amendment failed; opponents were denied public ballot initiative they sought.  Massachusetts, the first state to allow same-sex marriages, held on to its new law. 

Vermont created civil unions, Massachusetts had marriage. And soon another New England state would provide legal status for gay and lesbian couples. A year after the Massachusetts marriage law went into effect, Connecticut passed a civil unions law.  Considered radical just a few years earlier, some advocates had begun calling this a "conservative fallback position." By 2008, the Connecticut Supreme Court ruled that civil unions were not enough.  The equal protections clause in Connecticut's constitution required that same-sex marriage be legal. 

The Massachusetts court ruling in 2003 spurred efforts across the country to amend state constitutions. The following year, 13 states joined the ranks of those that constitutionally prohibit same-sex marriage. Those amendments were also motivated by the renegade actions in February 2004 of San Francisco Mayor Gavin Newsom, who took it upon himself to authorize marriage licenses for same-sex couples.  Newsom believed denying some people the right to marry was inconsistent with the values of the country.

(Assessor Mabel Teng, speaking to couples at San Francisco City Hall) "We have inside City Hall 400 couples that we let in this morning and you are one of them-congratulations! ... And again, I want to thank you for bringing so much love and joy to City Hall."

(Just-married man) "When we heard the words ‘by the authority vested in me by the State of California, I pronounce you spouses for life' we felt something transform within us."

Within a month, the California Supreme Court had nullified the 4,000 marriages that were performed in San Francisco.  Gay marriage advocates immediately filed a lawsuit.

(Woman, speaking through a bullhorn at a protest) "We are here to say that this is a right that must not be taken away from American people, and that includes same-sex people. We have been married!" (Crowd cheering)

In March 2008, the California Supreme Court began hearing oral arguments on whether the state's ban on same-sex marriage was discriminatory, and whether it violated the fundamental right to marry. 

(Oral arguments, California Supreme Court)

(Attorney Glen Lavy) "This court as early as 1850 was talking about the primary purpose of marriage being procreation and the raising of children of the marriage."

(Justice Carol Corrigan) "Well then should have marriage laws that say you can't marry unless you are prepared to have children or capable of having children?  Or your marriage doesn't count until you do have children?"

On May 17, 2008, the California Supreme Court announced its ruling in favor of same-sex marriage. But for supporters of gay marriage, the celebration was short-lived.  As in Massachusetts, opponents immediately moved for a constitutional amendment banning same-sex marriage, which would supersede the Supreme Court decision. Unlike Massachusetts, California's constitution is relatively easy to amend.  More than a million California voters signed a petition to put the question on a ballot.  And Proposition 8, the measure to ban same-sex marriage, was ready for a vote in November.

Proposition 8 was the same-sex marriage debate played out on its largest scale yet.  Money raised by both sides totaled more than 83 million dollars and poured in from all 50 states and 20 countries.  The ballot question even became fodder for presidential debates.

The Roman Catholic Church backed Prop 8.  So did the Mormon Church, whose members provided money and volunteers for the effort.  But some religious groups opposed the ban.  Episcopal bishops in California and the Board of Rabbis of Southern California were against Proposition 8.

Initial public polls showed Prop 8 failing in the November election -- that people would not support a ban on same-sex marriage.  Kate Kendell is executive director of the National Center for Lesbian Rights. She says internal polling revealed a different story.

(Kate Kendell) "People just did not believe that we were going to lose. And the number of times I would be asking people for financial contributions to defeat Prop 8 that I would get the response, ‘Oh, well, gosh Kate, we don't need to worry about that.  There's no way that would pass here.' If I had a dollar for every time somebody said that to me we could have funded, you know, at least a couple of ads in Modesto."

Frank Schubert, a political consultant based in Sacramento, managed the "Yes on 8 Campaign."  His immediate strategy was to show California voters how granting marriage rights to gay couples would have a negative impact on straight families.

(Frank Schubert) "And it was our position, based on what had happened in Massachusetts and just taking a look at the statutes in California, that if gay marriage were legalized that it would eventually be taught to children as being the same as traditional marriage.  And that that teaching would violate the deeply held beliefs of the majority of California parents."

The "Yes On 8" campaign ran ads showing that young school children would be taught about gay marriage. 

("Yes On 8" campaign ad)

(Little girl) "Mom, guess what I learned in school today?"

(Mother) "What, sweetie?"

(Little girl) "I learned that a prince can marry a prince and I can marry a princess!"

(Narrator) "Think it can't happen here? It's already happened...."

Same-sex marriage advocates were furious about what they saw as fear-mongering.  But the strategy was effective.  On November 4, voters went to the polls.  Just after midnight, "Yes On 8" campaign manager Frank Schubert called the race.

(Frank Schubert) "...and the battle tonight has been won!" (Sound of applause.) "We are now projecting Proposition 8 has passed!" (Sound of cheering.)

Marc Solomon was the Executive Director of Mass Equality at the time.  Now he works as the marriage director for Equality California.  On election night he was working in San Francisco, helping the "No On 8" campaign.

(Marc Solomon) "It was completely devastating.  I was in the War Room at the time with the real number crunchers watching the returns come in...  It was like, this surreal moment because Obama had won and we watched his victory speech and you could just hear people in the street just ecstatic about the Obama win... So it was like, this surreal, very isolating feeling like, all the progressives in the world were happy except for the gay community."

18,000 same-sex couples got married in California in the five months between the court decision and the public vote. Later, the California Supreme Court allowed those marriages to stand but at the same time upheld Proposition 8.  California, the most populous state in the nation, had made its choice. 

In the months following the ban in California, a handful of states did legalize same-sex marriage.  But none was met with more surprise by outsiders than the heartland state of Iowa. Ann Laquer Estin says people shouldn't have been surprised.

(Ann Laquer Estin) "I think Iowa is misunderstood in many parts of the country. I think people on the coasts may speak of this as flyover country, and that suggests that there's nothing interesting that one could find or discover. I think it's much more diverse and interesting in its culture and in its history than people may realize. There are strong voices on both ends of the political spectrum here and those have long traditions as well."

Estin is a professor at the University of Iowa College of Law in Iowa City, and she signed two amicus briefs in support of the plaintiffs in Iowa's court case. She says Iowa has a progressive legal tradition - the state was ahead of others and ahead of the federal government on questions of slavery, desegregation, and women's rights.

Iowa's Supreme Court ruled same-sex marriage legal in the Spring of 2009. But the stage was set a year and a half before that, when a lower court judge ruled that the state's Defense of Marriage Act was unconstitutional.  The judge expected his decision would be appealed, so the next day he put a stay on his own ruling. 

But in the brief hours between the ruling and the stay, one young couple read the tea leaves and acted quickly. Sean Fritz and Tim McQuillan were students at Iowa State, and they knew exactly what legal steps were required for them to get married. Reporter Reid Forgrave of the Des Moines Register followed their race around town on August 31, 2007, to get their marriage finalized before the stay went into effect. It started with getting a waiver of Iowa's three-day waiting period for marriage licenses.

(Reid Forgrave) "So Tim and Sean pay the $5 waiver, they had to go to a judge to get him to sign off... ... They ran three blocks down Court Avenue in Des Moines, Iowa, from the Recorder's Office to the courthouse, found a judge who would sign on it.... ... ... Then what they did, they had to find a minister to marry them, immediately. They drove, followed by reporters, to a synagogue in Des Moines because they had heard that the rabbi there was going to marry them.  But the rabbi wasn't there..... ... There's about a dozen reporters at this point, standing outside the synagogue.... .... They ended up frantically making phone calls, dripping sweat on an 85 degrees and humid, hot August Iowa day. ..... ... . Called Mark Stringer, a reverend at the First Unitarian Church of Des Moines and literally woke him up..... ... So moments later he's having his first cup of coffee and these two young men followed by a bevy of reporters show up on his lawn. And it was a shotgun wedding if you ever could imagine one.... ... The reverend just winging it on the ceremony.... ... And there was one more step to the process - it was they had to get it certified at the Recorder's Office. It was this race against time because they heard there was a stay coming any moment now. And they flew down Interstate 235 in Des Moines ... .... drove right to the Recorder's Office and got their marriage officialized. And it was less than an hour later that there was an official stay on it."

Of the 20 or so same-sex couples who tried to get married in Des Moines that morning, Sean Fritz and Tim McQuillan's marriage was the only one that was made official, and remained so for the next year and half.

Interest in Iowa's case crashed the Supreme Court's web site the day the ruling was announced on April 3, 2009.  Reporter Reid Forgrave remembers the scene in a hotel conference room when Sean Fritz, Tim McQuillan and the gay couples who were plaintiffs in the case learned that the Iowa Supreme Court had legalized same-sex marriage.  The reporters in the room already knew the outcome, but Lambda Legal, which had been involved in arguing the case, wanted to deliver the news to the couples in public:

(Reid Forgrave) "Camilla Taylor, who's kind of the lead legal counsel in this, steps up to the microphone. These couples have these looks of ‘Oh boy, what's going to happen,' - because they really didn't have a clue. And she simply just said, ‘We won.' People started crying and applauding.... .... And I think no matter what side of the argument people are on here, it was pretty powerful to see - to actually watch these people's, what they said was among the happiest moments of their life. Plenty of people were really upset about it. But in that room with people who had prayed for this for years, it was a pretty powerful scene.  I think that's ultimately what Lambda Legal - they really handle the media very well.  And that's what they were looking for was, whether it was anger or happiness, they wanted people in Iowa and around the country to see those emotions. And they sure did." 

New England states had broken the most ground in the push to legalize unions and marriage for gay couples, and in 2009 the momentum there continued.  Among the states taking up the issue was New Hampshire.  The Granite State, known as a political battle ground, adopted civil unions in 2008, and the following year the Legislature went a step further and passed a same-sex marriage bill. Governor John Lynch deliberated on whether to sign the bill, and ultimately he did - after asking lawmakers to ensure that no religious groups would be pressured to perform same-sex marriages if they didn't choose to.

The Maine Legislature also voted to allow same-sex marriages in May 2009, expanding the block of New England states that legally recognized gay couples.  But Maine wouldn't stay in that column for long. Much like California, Maine has a ballot initiative process. In November 2009, Maine voters went to the polls to vote on Question 1, which read in part, "Do you want to reject the new law that lets same-sex couples marry?"

(Voter Sherry Jones) "I plan on votin' yes because I believe it's an abomination..." 

(Voter Dorothy Silvers) "I voted no because ... civil marriage is a legal institution."

(Voter Mark Eno) "I voted against same sex marriage.  I don't believe that it's a natural thing and I don't believe that it's right."

Initial polls showed the ballot initiative going down to defeat, but in the end, Maine voters banned same-sex marriages six months after the Legislature had approved them. Frank Schubert, who ran California's successful effort to ban gay marriage, also managed Maine's campaign. 

(Frank Schubert) "The fact of the matter is that the politicians have had their say...But now the people have spoken and it's time for those in power to listen and to follow the lead of the people...And it's their right to exercise public policy and they have done that here in Maine.  They have decided that marriage should remain between a man and a woman. And now it's time for the politicians and the elected officials to accept that answer."

The day after the election, supporters of gay marriage conceded the vote, but not the fight.

(Betsy Smith of Equality Maine, speaking to supporters) "To help Mainers understand why marriage matters for all families, some of the families affected by not having the protections of marriage...opened their lives to the public and shared their personal stories.  We're extremely grateful to those families.  And while we know voters gave consideration to them, it seems in the end (choking up), that Mainers are not ready to treat these families fairly (crying).  Having the protections of the law as well as the respect and dignity that comes only with marriage is a journey on which we will continue...I hope all of you will stand with us."   (Sound of cheering.)

By the end of 2009, five states recognized same-sex marriage: Massachusetts, Connecticut, Iowa, Vermont and New Hampshire.  Two other states - Maine and California - had taken a step in that direction and then retreated at the say-so of voters.

Coming up: what is the future of this debate at the national level? I'm Jane Lindholm and you're listening to "States of Marriage."



Why is gay marriage one of the most controversial issues of our time? Is it the evolution of a civil rights issue? 

(Beth Robinson) "Folks who oppose the equal right to marry for same-sex couples don't like to call it a civil right, because who likes to say they oppose civil rights?"

(Frank Schubart) "Well, but same-sex marriage is not a civil right, it's a civil wrong.  Ask an African American leader whether or not this is a civil rights issue and you'll get an earful."

We did ask the question to Mary Frances Berry. She was chairwoman of the U.S. Commission on Civil Rights from 1993 to 2004, a time when dozens of states grappled with the legal status of gay couples.  She believes same-sex marriage is a civil right but says it's not helpful to compare it to racial injustice.

(Mary Frances Berry) "Each group of people is being discriminated against.  They're all suffering as victims of people abusing them and doing things to them and depriving them of rights.  Let us describe what is happening to each group of people and not try to say, ‘Oh it's exactly the same'. And there's no need to irritate people from the black community who are bound to a traditional view about their civil rights by saying ‘you've got to admit that it's exactly the same.' Because what difference does it make whether they admit it or not? The point is, let's support doing something about this civil rights issue at this time in our history."

Berry says discrimination against gays and lesbians is the major civil rights struggle of our time.  And she says African American civil rights groups and gay rights organizations need to collaborate on issues they have in common.

(Mary Frances Berry) "The gay civil rights movement...has not been as supportive of the causes that black people put as priorities for themselves as they should have been...They don't have as much diversity in their leadership or in the people who are spokespeople or the people who organize or the relationships.  At People for the American Way, we have an African American group of ministers, religious ministers, who are working hard on this issue to try to get rid of the homophobia that exists among the community.  But I think there is also the necessity for people who are in this issue and who are not black to understand that they ought to diversify their approaches and be more supportive.  I mean, coalitions work both ways."

Twenty-nine states have constitutional amendments banning same-sex marriage. Five states have laws protecting it.  Between those ends of the spectrum, other states have passed civil unions, or agreed to honor the laws passed in other states, or provided some legal benefits to same-sex couples without giving it the name ‘marriage' or ‘civil unions'.

David Masci is a senior analyst with the Pew Research Center's Forum on Religion and Public Life, a non-partisan research group. He says there's a reason behind the diversity of approaches states have taken to the question:

(David Masci) "People talk about the separation of powers in this country, and when they do they usually mean the three parts of the federal government: the executive, the legislative and the judiciary branch, but before that separation of power there is another separation, a broader separation, and that is between state and federal government. ...We get these ... again these dichotomies, these differences. You're treated one way by one jurisdiction and treated another way by another. ...Different parts of the country doing different things based on whatever the community standards are in these various places."

Creating the right strategy in various places is crucial to the leaders of the same-sex marriage movement. They consider pushing for same-sex marriage in states that already have protections for gays and lesbians, like adoption rights, workplace non-discrimination, and anti-harassment measures. Lee Swislow is with Gay and Lesbian Advocates and Defenders:

(Lee Swislow) "To a large extent the strategy is driven by the situation in particular states.  There's no mystery: there are states that have a history of, again, supporting and respecting same-sex individuals and families in which activists are doing that work of education and persuasion to move the community forward."

David Masci of the Pew Research Center says there is also the question of public perception when a marriage statute is created: 

(David Masci) "There are some same-sex marriage advocates who will say, I much prefer this to happen legislatively, rather than in the courts for two reasons. One is, when the Legislature does it it's more likely to stick in terms of, there's less likely to be a backlash that succeeds in overturning the Legislature's decision, in part because these are representatives of the people who've done this. The other is that if a  court does it, as was the case in California, a lot of times you get people very upset who say, essentially, a small group of elite judges is changing one of our most fundamental institutions.  This is very undemocratic, people will say."

The calculation of whether to rely on a legislature or to file a lawsuit is a critical piece of the strategy for advocates.  A badly crafted lawsuit could get a ruling that enforces a same-sex marriage ban, rather than overturns it.

The federal Defense of Marriage Act is a prime example. Passed with strong support by Congress in 1996, it was signed by then-President Bill Clinton. The essence of DOMA is that it defines marriage as one-man-and-one woman for the purposes of federal law. One of the legal challenges to DOMA is over the specific part of the law that denies federal benefits to same-sex couples who are legally married in their own states. A lawsuit is pending.  

As advocates for same-sex marriage work within the courts to advance their cause, supporters of traditional marriage have had their best success when voters are given the decision. Frank Schubert led the campaigns in California and Maine where voters rejected same-sex marriage.

(Frank Schubert) "There's no evidence whatsoever that momentum for gay marriage is picking up.  There's been no change in their favor in national polling for the better part of the last year and a half.  ... And we're beginning to see evidence that where they did make some advances they've now lost those.  Maine is certainly an example of that.  CA was an example of that."

The Pew Research Center has been tracking Americans' opinions of same-sex marriage since 1996. That year, 65 percent of people opposed it. In 2009, 54 percent of people polled opposed same-sex marriage.  The margin has closed a bit, but opponents of gay marriage consistently outnumber supporters. In states where the question of same-sex marriage has been put to a public vote, time and again voters have said ‘no' to legal marriage for gays and lesbians.

We began this hour with a Vermont court case in the year 1999. But in the years that followed, the state that was first to enact civil unions was no longer so radical. Vermont was playing catch up. In 2009, advocates saw their best chance to push for a full marriage statute in Vermont. The Legislature was strongly Democratic, and public opinion had mellowed. This time around, the drama was in the governor's office.

A same-sex marriage bill had passed the Senate and was pending in the House in late March when Republican Governor Jim Douglas called a press conference:

(Jim Douglas, addressing reporters) "I'm announcing that I intend to veto this legislation when it reaches my desk. ...I believe that marriage has always been and ought to remain the union of a man and a woman. I believe that the civil union law has afforded equal rights and benefits under state law to same-sex couples and that that should suffice."

The Legislature did pass the bill and Governor Douglas vetoed it, setting the stage for a political cliffhanger: a legislative override. As the vote in the Vermont House of Representatives approached, the outcome was too close to call.

(Beth Robinson) "When I got in my car and started driving to the Statehouse in the morning, I wasn't sure where we stood on votes, but I thought we maybe weren't there."

Same-sex marriage advocate Beth Robinson:

(Beth Robinson) "How are we going to deal with the fact that we don't have the votes? You get to the Statehouse and you start talking to people - ‘Who've you talked to, who've you talked to, where do things stand? Let's look at your list, let's look at my list,' that kind of thing."

One-hundred-forty-nine members were present in the House that day; 100 of them would have to vote ‘yes' for the override to succeed. As the last votes of the roll call were cast, the room held its collective breath until House Speaker Shap Smith made it official:

(Speaker Shap Smith, from the podium) "Please listen to the results of your vote, those voting yes 100, those voting no, 49. 100 needed to pass, you have voted to override the veto." (Sound of cheering.) "The House will come to order!"

Months later, Representative Bill Lippert reflected on that moment of victory for his cause.  During the 2000 debate on civil unions, he had been the only openly gay member of the Legislature:

(Bill Lippert) "It was deeply moving, and moving because, I have to say, that there was a point when I never could have envisioned the possibility of marriage for me and my partner. Without question, not that many years ago, it would have seemed like an impossible goal to attain in my lifetime."

But not everybody was celebrating. Craig Bensen of Take It To The People had been deeply critical of the fast pace with which the bill advanced in the Legislature.

(Craig Bensen) "The whole way it was pulled off said, ‘Sorry, you're not part of the process.' Or actually, ‘We're not sorry you're not part of the process. We don't want you to be part of the process because if we let you be part of the process we might not get what we think you deserve....." (Craig Bensen - cut 7) "From many persons' points of view outside this building, it was not a proud history that we had made that day. 

There are many political lessons from a decade of debate over gay marriage.  But there is also something to be learned from the stories of people who've taken advantage of new marriage laws. Michael Warner and Joseph Watson both grew up in Vermont.  They met in 1992 when their personal ads showed up side-by-side in a local newspaper.  They've been together ever since.

(Michael Warner) "We got engaged and we had an engagement.  It was (laughs) old fashioned."

In November of 2009 they had a simple wedding in the meadow behind their house, affirmed by the words they'd longed to hear for 17 years: "I now pronounce you married."

(Joseph Watson) "It's important because we are fully equal and our love is recognized as being fully equal.  That it doesn't matter whether you're loving a man or a woman, that that love is valued, and recognized legally, equally, with opposite sex couples. 

(Michael Warner) "They may try to overthrow the law in the future, whatever. But it felt like we got to the top. You know, it was like we going up a mountain, and civil unions was one stop. And then a few years later, here we are."

The word marriage has meaning.  And the fight often comes down to whether or not same-sex couples should be conferred that title, that word. 

The vast majority of states - 37 of them - have statutes that reserve marriage for heterosexual couples.  At the end of 2009, the New York legislature took up a bill that would have added that state to the small group that does allow same-sex marriage.  But after the Assembly agreed to the measure, the New York Senate voted it down. The Washington D.C. city council has also taken up the question of marriage. That debate may lead to federal action: if the city council approves gay marriage, the U.S. Congress has the ability to stop it from becoming law.

Will this continue to be an issue played out state by state? Or will the U.S. Supreme Court or Congress ultimately decide the definition of marriage? For now, states, the federal government and citizens will continue to wrestle with what the Vermont Supreme Court called, "our common humanity." 

For VPR News, I'm Jane Lindholm.


"States of Marriage" was reported, written and produced by Patti Daniels.

Reporting and production also by: Jane Lindholm, Lynne McCrea and Willa Kammerer.

Chris Albertine was the production engineer. The executive producer was John Van Hoesen. Original music by Peter Engisch.

Production support from: Sarah Varney of KQED, Jonathan Butler, Jason Bushey and James Dillon. Special thanks to NPR and WBUR.

For more information go to vpr.net. Funding for this program was provided by the listeners of Vermont Public Radio.



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