How Does It Feel To Be Gay?
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The Massachusetts Supreme Court’s Ruling Gives Gays and Lesbians the Right to Marry

By CHRIS GEIDNER

Thursday, Dec. 18, 2003

Forty years ago, eight well-intentioned white Alabama clergymen told the people of Birmingham that they “recognize[d] the natural impatience of people who feel that their hopes are slow in being realized.” At the same time, though, they urged that protests and demonstrations would only incite hate and were “unwise and untimely.”

Martin Luther King Jr.’s well-known response “from Birmingham Jail” is as timely as it is powerful. King wrote that he had “almost reached the regrettable conclusion” that the “white moderate” was more problematic than the Ku Klux Klan. This, he wrote, was in part because the white moderate “paternalistically believes he can set the timetable for another man’s freedom,” “lives by a mythical concept of time and . . . constantly advises the Negro to wait for a ‘more convenient season.’ ”

Unfortunately, even today we are hearing the same kind of advice. This time, the subject is marriage equality for lesbian and gay couples, and the timetable offered contemplates civil unions now and marriage in some far-off future.

The Massachusetts Supreme Judicial Court, in Goodridge v. Dep’t of Health, made plain that it is blatant discrimination when the state restricts marriage rights from gays and lesbians. Nevertheless, some in Massachusetts – and, surprisingly, even some liberal law professors – still argue that, for now, civil unions are enough to satisfy the court’s ruling. But that is plainly wrong.

The Massachusetts Ruling Plainly Gives Gay Couples the Right to Marry

The Massachusetts Supreme Judicial Court’s historic opinion, written by Chief Justice Margaret Marshall, explained that the state’s Constitution “forbids the creation of second-class citizens.” But second-class status is exactly what allowing straight citizens to marry and relegating gay and lesbian citizens to civil unions would create.

Fortunately, the Massachusetts opinion did no such thing. It “construe[d] civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others.” And it extended the civil marriage law to same-sex couples. If you doubt it, all you need to do is look to the dissent in Goodridge, which complained about the majority’s “extending the marriage laws to same-sex couples.”

Like the dissenting judges, the governor understood the decision’s message loud and clear – and saw that its message was about an equal right to marriage in particular. Republican Governor Mitt Romney, expressing deep disagreement with the decision, said he would work to pass a Massachusetts constitutional amendment “limiting marriage to the relationship between a man and a woman.” If he had anticipated civil unions, not gay marriage, then such an amendment would have been entirely unnecessary.

As renowned Harvard Law School constitutional law professor Laurence Tribe – who argued Bowers v. Hardwick before the Supreme Court – remarked, the Massachusetts court “could hardly have been clearer” that its decision meant a right to marriage, not anything less.

Claims that Civil Unions Are Enough to Guarantee Equality Are Unpersuasive

It is deeply disappointing, then, that a trio of liberal law school professors – including even Tribe himself, who seems to have quickly stepped back in the midst of political pressures – has now claimed that civil unions are all the court might require.

The morning after the Massachusetts decision, Harvard Law School Professor Arthur Miller claimed to the New York Times that the legislature would be honoring the Court’s decision if it merely “create[d] a relationship that might not necessarily be called marriage but allows for the recognition of property passage and joint ownership and insurance and even child custody.”

Later, Northwestern Law School professor Andrew Koppelman–who has written extensively on the legal issues facing lesbian and gay Americans–took the same position in the Chicago Tribune. He asserted that “[t]he truth is that the [Goodridge Court] did not decree that same sex couples were entitled to marry,” and claimed that that civil unions would “almost certainly” meet with the court’s approval.

Koppelman also stated that newspapers were simply “wrong” to state that the court had “back[ed] gay marriage” – even though many law professors and lawyers hold the same “wrong” belief. Finally, he urged supporters of ending marriage discrimination to wait because we shouldn’t “kick a hornet’s nest.” Civil unions, he suggested, ought to be good enough for us.

Then, this past Thursday, the Massachusetts Senate formally asked the state’s high court if civil unions would satisfy the court’s order. According to the Boston Herald, Professor Tribe, surprisingly, predicted the court’s answer might be yes.

In support of this contention, Tribe “pointed to the long-agonized, 4-3 nature of the SJC decision and said civil unions might be enough to flip one of the justices in the majority, in the wake of political leaders’ outcry against full-blown gay marriage.”

But this cynical view betrays all who believe in the force of law. The decision said what it meant: “We are mindful that our decision marks a change in the history of our marriage law.” The Massachusetts Constitution’s proclamation of equality is clear, and the judges who listened to it certainly should not “flip” to another view. Judges distinguish themselves from legislatures in that they are bound by the law – including their own prior interpretations of it. Close decisions are still the law and must be respected as such.

Although Tribe told the Herald that such a flip would “disappoint” him, the newspaper also reported that Tribe has been advising the Massachusetts legislature of his views. Based on his comments, the advice he’s been giving is just as disappointing: that the court might accept a civil-union solution if the legislature puts one forward.

As It Was In King’s Days, Half-Measures Are Not Enough

All three of the law professors who have suggested civil unions may be enough to satisfy the Massachusetts Supreme Judicial Court’s ruling seem to support the idea of ending marriage discrimination against lesbian and gay couples. But in the past month, all have put the idea to the side in favor of prudence and politics.

Each of the three could have a well-intentioned reason for doing so: They’d rather see limited progress (through civil unions) than a backlash (through attempts at an anti-gay marriage amendment). But limited progress, as Martin Luther King noted so long ago, is not enough.

Not so coincidentally, the three professors also have something else in common: marriage certificates. There’s the rub. They can afford prudence and political calculations; they already have the right to marriage.

To lesbian and gay lawyers and law students such as myself, these statements sound of privilege, and they sting. This is particularly so when they are coming from Professor Tribe, a man many current lesbian and gay law students came of age respecting deeply for his having argued Bowers.

Like the “white moderates” who told King to be patient, these “heterosexual moderates” can counsel slow progress because they themselves have nothing personally at stake. These straight men of good will seem to believe that they can set the timetable for marriage equality, as white moderates believed when it came to segregation. But justice won’t wait – and shouldn’t have to.

That supportive members of the majority would compromise on the futures of the rights-deprived minority should not, unfortunately, come as any great surprise. Still, the presumption of these moderates is as wrong today as others’ was 40 years ago.

If securing equality in marriage means we’re going to have to stir up a hornet’s nest, so be it.

Ten Ways Homophobia Affects Straight People

1. Homophobia forces us to act "macho" if we are a man or "feminine" if we are a woman. This limits our individuality and self-expression.
2. Puts pressure on straight people to act aggressively/angrily towards LGBTQ people.
3. Homophobia makes it hard to be close friends with someone of the same sex.
4. Homophobia often strains family and community relationships.
5. Homophobia causes youth to become sexually active before they are ready in order to prove they are "normal." This can lead to an increase in unwanted pregnancies and STDs.
6. Homophobia prevents vital information on sex and sexuality to be taught in schools. Without this information, youth are putting themselves at a greater risk for HIV and other STDs.
7. Homophobia can be used to hurt a straight person if they "appear to be gay."
8. Homophobia makes it hard for straight people and LGBTQ people to be friends.
9. Homophobia along with racism, sexism, classism, etc. makes it hard to put an end to AIDS.
10. Homophobia makes it hard to appreciate true diversity and the unique traits that are not mainstream or "normal."

See Homophobia: How We All Pay the Price, edited by W. J. Blumenfeld, Boston: Beacon Press: 1992.

Ways to Fight Homophobia as a Straight Advocate

1. Organize discussion groups to talk about the "Ten Ways Homophobia Affects Straight People."
2. Always use neutral labels like "partner" or "significant other" instead of "boyfriend," "girlfriend," etc. when writing papers or talking to others.
3. Bring up LGBTQ issues in conversations with friends or discussions in class.
4. Interrupt anti-LGBTQ jokes, comments or other behaviors that make homophobia appear OK.
5. Put LGBTQ-positive posters in your office, wear shirts, buttons, etc. that promote tolerance.
6. Don’t make assumptions about peoples’ sexual orientations or gender identities. Assume there are LGBTQ people in all classes, sports, meetings, daily life, etc.
7. Don’t assume that "feminine-acting men" and "masculine-acting women" are not heterosexual.
8. Don’t assume that "macho males" or "feminine females" are heterosexual.

How to be a Straight Advocate

You don’t need to be an activist, have a gay friend, vote a certain way, or even describe yourself as a straight advocate to work toward the fair treatment of lesbian, gay, bisexual, transgendered, queer/questioning people. All you need is the willingness to “come out” as a straight person who is no longer willing to remain silent about homophobia.   

There are literally hundreds of ways that you can show support as a straight advocate — from the way that you respond in conversations to what companies you support to which legislators you elect.

Here are 10 simple ways to contribute to the equal treatment of the GLBTQ community:

1. Become informed about the realities, challenges and issues affecting GLBTQ people’s lives through websites, books, documentaries, and educational materials.
2. Be open about having gay friends, family or acquaintances that you value, respect, and are grateful to have in your life. When you talk about them, don’t omit the fact that they are GLBT.
3. Speak up when you hear derogatory slurs or jokes and don’t use them yourself. 
4. Ask if you are unsure how a GLBT friend, family member or acquaintance would like their significant other to be referred to or introduced, rather than avoiding acknowledgment of the relationship.
5. Help your kids learn about and appreciate all different kinds of families. Be mindful of the day-to-day messages that they are receiving about gay and transgender people and issues in school, from friends, and on TV and talk about what they encounter with them.
6. Quit or don’t join organizations that overtly discriminate. Let them know why you are leaving or not joining in the first place.
7. Support gay, lesbian, bisexual, and/or transgender-owned and friendly businesses.
8. Encourage and support company policies and programs that promote a positive work environment for gay employees at your workplace. If your company has a GLBT network group, join and encourage them to include straight allies so more people can be openly supportive of their work.
9. Write letters to the editor of your newspaper to comment as a straight ally on why you support respectful and equal treatment for GLBT people.
10. Call, write, e-mail, or visit public policy makers and let them know that as a straight person who votes, you support laws that extend equal rights and protections to all people.

Adapted from http://www.straightforequality.org/

GSA Network:

Statewide Office: 1550 Bryant St, Suite 800, San Francisco, CA 94103, ph: 415.552.4229, fax: 415.552.4729

Central Valley Regional Office: 928 N. Van Ness Ave., Fresno, CA 93728, ph: 559.268.2780, f: 559.268.2786

Southern California Regional Office: 1145 Wilshire Blvd #100, Los Angeles, CA 90017, ph: 213.482.4021, f: 213.482.4027

The following joint statement was issued on United Nations Human Rights Day and the 60th anniversary of the Universal Declaration of Human Rights, 12/10/2008:

“For far too long people around the world have been ostracized, imprisoned, tortured and denied basic rights to housing, health care and employment simply because they are lesbian, gay, bisexual or transgender (LGBT). In more than 70 countries people can be imprisoned for homosexuality and in several countries same gender love is a crime punishable by death.

“This is why the French government, backed by 27 European Union nations, put forward a proposal, on Human Rights Day to recognize that LGBT rights are human rights and to decriminalize homosexuality. Such a statement simply affirms the most basic of rights for LGBT people: that they be allowed to live in dignity and safety. As faith leaders who work every day with LGBT people who feel the stigma of discrimination, this UN initiative speaks to our core belief that we show our love for God when we care for our neighbors, particularly those who are shunned and marginalized.

“As faith leaders we were shocked by Vatican opposition to this proposed initiative. By refusing to sign a basic statement opposing inhumane treatment of LGBT people, the Vatican is sending a message that violence and human rights abuses against LGBT people are acceptable. Most Catholics, and indeed most Catholic teachings, tell us that all people are entitled to live with basic human dignity without the threat of violence. The Catholics we know believe that Scripture asks us to be our br /other and our sister’s keeper. Many are speaking out against this immoral stance in the name of religion.

UPDATE: ON 3/18/2009. PRESIDENT OBAMA’S ADMINISTRATION ANNOUNCED ITS FORMAL ENDORSEMENT OF THIS DECLARATION, WHICH REVERSED THE BUSH ADMINISTRATION’S REFUSAL TO DO SO.

“Compounding the Vatican’s opposition is the inaction to date of the government of the United States. As faith leaders and citizens of the United States, we call on the U.S. government to join the 50 countries throughout the world that have officially supported this U.N. proposal.  We urge U.S. leaders to stand against discrimination. It is time to let the teachings of the world’s great religions guide us toward justice rather that encouraging prejudice, fear and violence. It is time for the U.S. to stand as a moral leader for LGBT people and to help create a more just world for all of us.”

Harry Knox, Director
Religion and Faith Program
Human Rights Campaign Foundation

The Rev. Rebecca Voelkel, Director
Institute for Welcoming Resources and Faith Work
National Gay and Lesbian Task Force

Dr. Sylvia Rhue, Director
Religious Affairs
National Black Justice Coalition

Ann Craig, Director
Religion, Faith & Values Program
The Gay & Lesbian Alliance Against Defamation (GLAAD)

Joint statement issued on United Nations Human Rights Day and the 60th anniversary of the Universal Declaration of Human Rights:

“For far too long people around the world have been ostracized, imprisoned, tortured and denied basic rights to housing, health care and employment simply because they are lesbian, gay, bisexual or transgender (LGBT). In more than 70 countries people can be imprisoned for homosexuality and in several countries same gender love is a crime punishable by death.

“This is why the French government, backed by 27 European Union nations, put forward a proposal, on Human Rights Day to recognize that LGBT rights are human rights and to decriminalize homosexuality. Such a statement simply affirms the most basic of rights for LGBT people: that they be allowed to live in dignity and safety. As faith leaders who work every day with LGBT people who feel the stigma of discrimination, this UN initiative speaks to our core belief that we show our love for God when we care for our neighbors, particularly those who are shunned and marginalized.

“As faith leaders we were shocked by Vatican opposition to this proposed initiative. By refusing to sign a basic statement opposing inhumane treatment of LGBT people, the Vatican is sending a message that violence and human rights abuses against LGBT people are acceptable. Most Catholics, and indeed most Catholic teachings, tell us that all people are entitled to live with basic human dignity without the threat of violence. The Catholics we know believe that Scripture asks us to be our brother and our sister’s keeper. Many are speaking out against this immoral stance in the name of religion.

“Compounding the Vatican’s opposition is the inaction to date of the government of the United States. As faith leaders and citizens of the United States, we call on the U.S. government to join the 50 countries throughout the world that have officially supported this U.N. proposal.  We urge U.S. leaders to stand against discrimination. It is time to let the teachings of the world’s great religions guide us toward justice rather that encouraging prejudice, fear and violence. It is time for the U.S. to stand as a moral leader for LGBT people and to help create a more just world for all of us.”

Harry Knox, Director, Religion and Faith Program, Human Rights Campaign Foundation

The Rev. Rebecca Voelkel, Director, Institute for Welcoming Resources and Faith Work, National Gay and Lesbian Task Force

Dr. Sylvia Rhue, Director, Religious Affairs , National Black Justice Coalition

Ann Craig, Director, Religion, Faith & Values Program, The Gay & Lesbian Alliance Against Defamation (GLAAD)

Top 10 reasons why gay and lesbian couples should NOT be allowed to marry:

These arguments seem silly, but each initial statement has been used to oppose marriage equality.

1. Being gay is not natural. Real Americans always reject unnatural things like eyeglasses, polyester, and air conditioning.
2. Gay marriage will encourage people to be gay, in the same way that hanging around tall people will make you tall.
3. Gay marriage will change the foundation of society; we could never adapt to new social norms. Just like we haven’t adapted to cars, the service-sector economy, or longer life spans.
4. Straight marriage has been around a long time and hasn’t changed at all; women are still property, blacks still can’t marry whites, and divorce is still illegal.
5. Straight marriage will be less meaningful if gay marriage were allowed; the sanctity of Britney Spears’ 55-hour just-for-fun marriage would be destroyed.
6. Straight marriages are valid because they produce children. Gay couples, infertile couples, and old people shouldn’t be allowed to marry because our orphanages aren’t full yet, and the world needs more children.
7. Obviously gay parents will raise gay children, since straight parents only raise straight children.
8. Gay marriage is not supported by religion. In a theocracy like ours, the values of one religion are imposed on the entire country. That’s why we have only one religion in America.
9. Children can never succeed without a male and a female role model at home. That’s why we as a society expressly forbid single parents to raise children.
10. Legalizing gay marriage will open the door to all kinds of crazy behavior. People may even wish to marry their pets because a dog has legal standing and can sign a marriage contract.