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Why We Should Fight for the Freedom to Marry: The Challenges and Opportunities that Will Follow a Win in Hawaii

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  1. See, e.g., Matter of Dana, No. 93-0747 (2d Dep’t Apr. 3, 1995) (nonbiological mother not permitted to adopt partner’s child without cutoff of parental rights because they are not married).

  2. See, e.g., Bagley v. California Federal Bank, No. CV 93-7027MRP (C.D. Cal. Mar. 3, 1995) (unmarried gay couple not permitted to have employee loan discount available to married nongay couple).

  3. See, e.g., Anne Stroock, “Gay Divorces Complicated by Lack of Laws,” S.F. Chronicle, May 14, 1990, at A4 (denial of parental rights to non-biological parent one of the consequences wrought by the denial of marriage rights to same-sex partners); Kirk Johnson, “Gay Divorce: Few Markers in This Realm,” N.Y. Times, Aug. 12, 1994, at A20 (“Because gay people cannot be legally married in the United States, there is, for starters, no access to divorce court.”).

  4. E.g., Sullivan v. INS, 772 F.2d 609 (9th Cir. 1984) (noncitizen partner in long-term gay couple denied right to remain with his partner in United States because not married); see also Kimberly Griffin, “To Have and to Hold: Gay Marriage, the Next Frontier,” Windy City Times, June 2, 1994, 1, at 46 (stories of binational couples facing prospect of separation because unable to marry and remain together legally).

  5. E.g., Brinkin v. Southern Pac. Transp. Co., 572 F.Supp. 236 (N.D. Cal. 1983) (death of partner after 11 years together does not qualify employee for bereavement leave).

  6. E.g. In re. Guardianship of Sharon Kowalski, 382 N.W.2d 861 (Minn. 1986), reversed, 478 N.W.2d 790 (Minn In re… 1991).

  7. See, generally, Evan Wolfson & Robert S. Mower, “When the Police Are in Our Bedrooms, Shouldn’t the Courts Go in After Them?: An Update on the Fight Against ‘Sodomy’ Laws,” 21 Fordham Urb. L. J. 997 (1994).

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  8. See Baehr v. Lewin, 852 P.2d 44, 59 (1993) (Hawaii Supreme Court describes the “encyclopedic” “multiplicity of rights and benefits that are contingent upon [marital] status”); see also Van Dyck v. Van Dyck, 425 S.E.2d 853 (Ga. 1993) (Sears-Collins, J., concurring).

  9. See Richard D. Mohr, “The Case for Gay Marriage,” 9 Notre Dame J. Law, Ethics Pub. Pol. 215, 227-228 (1995); Craig A. Bowman & Blake M. Cornish, “A More Perfect Union: A Legal and Social Analysis of Domestic Partnership Ordinances,” 92 Colum. L. Rev. 1164, 1167–1168 (1992).

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  10. 852 P.2d 44, 75 (Haw. 1993). For a discussion of this epochal case and its implications, see, e.g., Evan Wolfson, “Crossing the Threshold: Equal Marriage Rights for Lesbians and Gay Men, and the Intra-Community Critique,” 21 N.Y.U. Rev. L. Soc. Change 567, 572–581 (1994) (hereinafter: “Crossing the Threshold”).

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  11. Henry Louis Gates, Jr., “Blacklash,” The New Yorker, May 11, 1993, at 42–43 (“trying to establish a pecking order of oppression is generally a waste of time”).

  12. Michelangelo Signorile, “Wedding Bell Blues,” Out Magazine, May 1995, at 26 (quoting Smith’s remarks to the 1995 Black Gay & Lesbian Leadership Forum Summit in Los Angeles, at which she described how her own parents had to leave their home state of Missouri to find a state that would marry them).

  13. 388 U.S. 1 (1967) (striking down Virginia’s same-race restriction on an individual’s choice of marital partner).

  14. H.B. 1184, “An Act to prohibit a marriage between persons of the same gender” (1995). Saying that either an interracial or a same-sex couple’s marriage is “void” means more than that a court may choose not to recognize such a marriage; it means that “by definition,” it is not a marriage.

  15. 388 U.S. at 3; see “Crossing the Threshold” at 575–576.

  16. “Crossing the Threshold” at 588–591.

  17. See, infra, at 82 for discussion of the Marriage Resolution. A list of signatories is available through Lambda Legal Defense & Education Fund, 666 Broadway, New York, NY 10012, which organizations may also contact to sign on. On the JACL’s endorsement of equal marriage rights, see Gerard Lim, “JACL Formally Adopts Same-Sex Marriage,” AsianWeek, Aug. 12, 1994, at 7.

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  18. Martin Luther King, Jr., Why We Can’t Wait, at 80. In a similar vein, the Jewish scholar, Rabbi Hillel, instructed, “If I am not for myself, who will be?” We must demand our full equality, specifically including the freedom to marry; our opponents will certainly be mentioning marriage.

  19. “People had never really thought of gay marriage as a ‘people of color’ issue. [But following presentations at the Black Lesbian & Gay Leadership Forum Summit, e]veryone started talking about talking to their ministers, their parents, their neighbors. They began seeing that this is not about class and privilege and a bunch of rich people flying off to Hawaii. It’s about defining what a family is to each of us.” “Wedding Bell Blues” at 26 (quoting NCLR’s Smith).

  20. “Crossing the Threshold” at 595–596.

  21. The following discussion of “domestic partnership” is drawn from a fuller treatment in “Crossing the Threshold” at 604–608; see also the discussion of the stakes and limitations in domestic partnership in Bowman & Cornish, passim.

  22. See Gay Teachers Ass’n v. Bd. of Educ., No. 43069/88 (N.Y. Sup. Ct. Aug. 12, 1991), aff’d, 585 N.Y.S. 2d 1016 (N.Y. App. Div. May 12, 1992) (successful settlement, Oct. 30, 1993, on file with Lambda).

  23. See Chris Bull, “Till Death Do Us Part,” The Advocate, Nov. 30, 1993, at 40, 46 (quoting activist).

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  24. I include myself in this, for I have litigated “domestic partnership” cases and have urged it as a strategy for winning recognition and benefits for more families, facilitating people’s ability to define their families and see their needs addressed fairly. But it is not a substitute for the freedom to marry, nor need we present it as such.

  25. Vermont and New York provide access to certain benefits to unmarried state workers and their partners.

  26. See, e.g., David Jefferson, “Gay Employees Win Benefits for Partners at More Corporations,” Wall St. Journal, Mar. 18, 1994, p. A1, col. 1. To get a periodic reporting of the latest companies and jurisdictions providing some benefits and/or recognition to unmarried couples, see Lesbian & Gay Law Ass’n, Lesbian/Gay Law Notes (Prof. Arthur S. Leonard, Ed.) (monthly publication).

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  27. Ross v. Denver Dep’t of Health & Hospitals, 883 P.2d 516 (Colo. Ct. App. 1994).

  28. Hinman v. Dep’t of Personnel Administration, 213 Cal. Rptr 410, 419–20 (Ct. App. 1985).

  29. Huff v. Chapel Hill. Chauney Hall, No. 93-BEM-1041 (Mass. Comm’n Against Discrim’n Sept. 14, 1994).

  30. Lilly v. City of Minneapolis, 527 NW2d 107, rev. denied,-NW2d-(Mar. 31, 1995).

  31. Phillips v. Wisc. Personnel Comm’n, 482 NW2d 121 (Wis. Ct. App. 1992).

  32. City of Atlanta v. McKinney, 1995 WL 116312 (Ga. S. Ct. Mar. 14, 1995).

  33. Anna Quindlen, “Evan’s Two Moms,” N.Y. Times, Feb. 5, 1992, at A23 (supporting gay people’s freedom to marry).

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  34. Steven K. Homer, Note, “Against Marriage,” 29 Harv. C.R.-C.L. L. Rev 505, 528 (1994).

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  35. Ruthann Robson, Lesbian (Out)law at 128 n.12 (citing Joan Nestle, A Restricted Country, at 123, 1987).

  36. See David W. Dunlap, “Some States Trying to Stop Gay Marriages Before They Start,” N.Y. Times, Mar. 15, 1995, p. A18, col. 1.

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  37. See “Recognition of Marriages,” H.B. 366, Gen. Sess. (1995). See “Utah Won’t Accept Same-Sex Marriages,” N.Y. Times, Mar. 3, 1995, p. B&, col.4.; Tony Semarad, “Ban on Gay Marriages to be Annulled? Passage May Have Come Too Late to Be Valid,” Salt Lake Tribune. See also Peter Freiberg, “Gays Win in South Dakota, Lose in Utah,” Wash. Blade, Mar. 3, 1993, p. 1, col. 1.

  38. Freiberg, id.

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Wolfson, E. Why We Should Fight for the Freedom to Marry: The Challenges and Opportunities that Will Follow a Win in Hawaii. International Journal of Sexuality and Gender Studies 1, 79–89 (1996).

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