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Monday, February 16, 2004 2:24 PM
Roland C. Eyears

Roland Eyears
Roland Eyears

Same-Sex Marriage - A Question Not Even Close to Resolution

As published in the current issue of OUR TOWN

The latest volleys in the Same-sex Marriage War have been fired in different directions by Massachusetts and Ohio.

Because Richard Linnell was not a juvenile dependent nor could he become the spouse of Gary Chalmers, the latter was unable to add the former onto his health insurance policy. Essentially, Chalmers and his single co-workers were being paid disparate compensation. Separate coverage was obviously expensive, so these Massachusetts residents bought suit.

In Boston the seven justices of the Taxachusetts Supreme Judicial Court broke precedent in two ways. On February 4 their 4 to 3 decision legalizing same-sex marriages sent ripples nationwide. And much has been made over the highly unusual, bitter disagreement in this court that boasts a 300-plus year history of consensus building.

Basing off the court's November ruling that homosexuals are entitled to marry, lawmakers sought clarification. Would "civil union" legislation comply, while allowing the lawmakers themselves to avoid excess heat? Wary of a separation of powers controversy, the court ordered the legislature "to take such action as it may deem appropriate" and do it within 180 days. Apparently, the majority four did not like what was deemed. So they ordered the legislators to try again, and came close to reaming them in the process.

The court's few dissents have usually been brief and polite. In the instant case, Justice Martha Sosman, 53, former federal prosecutor and founder of one of the first all-female law firms, ripped the majority's "activist" approach and accused them of regurgitating "impassioned rhetoric." Her opinion that some form of "civil union" would suffice had been rejected none too smoothly.

Street demonstrations followed. Last week legislators failed to reach compromise on a constitutional amendment that would limit marriage to heterosexuals but allow same-sex civil unions, thus joining 16 states that are considering similar legislation.

In Columbus, Ohio, where the city council extended benefits to "domestic partners" about a year ago and promptly rescinded in the face of enraged voters, the governor has signed a bill making Ohio the 38th state to ban same-sex marriages. This sweeping legislation also prohibits state agencies from extending benefits to "domestic partners" regardless of their persuasion and blocks recognition of the same-sex marriages of other states. .

As the gay nineties wound down, it looked like Hawaii would be the first state to certify homosexual marriages. Their supreme court was making it happen. Then the people spoke. Sixty-nine percent approved a constitutional amendment defining marriage as a union between a man and woman (one each - no substitutions). Still, Hawaii, California, New Jersey, Vermont, and dozens of lesser jurisdictions have granted special status to same-sex couples. Secure in the notion that they were not sticking their necks out too far, a gutsy congress enacted The Defense of Marriage Act in 1996. It stated in part that even if a state sanctions same-sex marriages, other states are not compelled to recognize them. This is an absurdity, as are similar state laws. Article IV, Section 1, of the U.S. Constitution states in part: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." Only two choices exist. Either one state opens the floodgates, or a Constitutional Amendment prohibiting same-sex marriages must be enacted.

ABC News put the question to George Bush in a December interview. Mr. Bush did not hesitate to take a strong stand. OK, he took a stand. Well, it was sort of a stand. He elucidated, "If necessary I will support a Constitutional Amendment which will honor marriage between a man and a woman, codify that, and will - the position of this administration is that whatever legal arrangements people want to make, they're allowed to make, so long as it's embraced by the state, or does start at the state level." Artful dodging of a touchy issue, or pathetic inability to construct a coherent sentence? You be the judge.

If same-sex marriages are not to be, what is the next best thing? Perhaps standardized versions of limited liability corporations (LLC) could be developed. Partners could legally bind themselves to one another for purposes of debts, common property, full power-of-attorney, inheritance, and rules of dissolution. And there would be no pre-nup expenses. Actually, this could be a pretty smart way for heterosexuals to go, given the openendedness and capriciousness of domestic relations courts. At least the combatants could get into courts of common pleas where there are rules, and they would be dealing with binding contracts.



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