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Gay marriage in New York

interior-gaymarriage2011Published in the Sunday Herald on July 24, 2011.

In the weeks leading up to a vote in the New York State Senate, when it was unclear whether a bill legalising same sex marriage would pass, the pressure group New Yorkers United For Marriage ran a television advert aimed at wavering conservatives. The clip featured Jo-Ann Shain and Mary Jo Kennedy as the gay couple next door: committed, loving partners, denied the chance to say “I do” by discrimination.

Shain and Kennedy have been together for 29 years. They’ve been wearing wedding rings, on their right hands, ever since celebrating their tenth anniversary. As they sit side by side on the porch, at their home in Brooklyn, it’s easy to see why an image consultant might choose them to represent the cause of marriage equality. Excluding them from the benefits accorded to heterosexual couples who tie the knot seems manifestly unfair. Suggesting that allowing them to wed might undermine marriage as an institution seems preposterous.

Inside, there are photographs of their grown-up daughter, Aliya, on the mantelpiece. A picture from a recent holiday, stuck to the fridge, shows them holding guitars at the Grand Ole Opry in Nashville. Somewhere, buried in the clutter of a life shared, there are two tiny plastic brides, from the cake they ate with friends on the day they registered as domestic partners, in 1993. Kennedy jokes that they “might have to resurrect them,” for their wedding.

The record for the most marriages in a single day in New York will be broken today, despite the council imposing a cap of 823 ceremonies, to prevent City Hall being overwhelmed by gay couples wanting to get hitched at the first opportunity. In the lottery to determine who would be granted a marriage licence, Shain and Kennedy drew a lucky number. “It’s going to be a huge, historic, fun, nervous occasion,” Shain says.

The City Clerk’s office is usually closed on Sundays, but the council has made an exception. Mayor Michael Bloomberg will preside over the wedding of two of his closest aides, Jonathan Mintz and John Feinblatt, at his official residence. Several judges have volunteered to waive the mandatory 24 hour waiting period, a relic of a 1930s moral panic, designed to dissuade teenage sweethearts from making impulsive commitments.

“It’s going to make me really happy,” Kennedy says. “I didn’t realise I was missing it, but I’m really looking forward to declaring our love in front of people and saying ‘this is my wife.’” They exchange a tender look. “We share our home, our finances, a family, so everyone looks at us as if we were married, but we’re not,” Shain says. “When I introduce Mary Jo she’s my ‘partner,’ and no-one knows what that means. To say ‘wife’ or ‘spouse’ is unambiguous.”

Mary Jo Kennedy, Aliya Shain, Jo-Ann Shain

Mary Jo Kennedy, Aliya Shain, Jo-Ann Shain

The first people blessed under the new law will be Kitty Lambert and Cheryle Rudd, a lesbian couple with five children, from Buffalo, who will be married at one minute past midnight at Niagara Falls. Gay rights activists hope that the New York has created a template for other states to follow.

The Marriage Equality Act passed following a sustained campaign from New York’s Democratic Governor, Andrew Cuomo, with the help of wealthy Republican donors. Supporters amassed enough money to reassure “no” votes that their re-election chances would not be hampered by a change of heart. As an observant Catholic, Cuomo has enjoyed significant support from the church, and his decision to back gay marriage shows how much Catholic influence has waned. Archbishop Timothy Dolan warned of a slippery slope to polygamy: “Now we ring the steeple bell again at this latest dilution of the authentic understanding of marriage, worried that the next step will be another redefinition to justify multiple partners and infidelity.

Personalising the issue was a key strategy, satirised by The Onion’s headline: “Vatican Reverses Stance On Gay Marriage After Meeting Tony And Craig.” Cuomo’s girlfriend, Sandra Lee, has a gay brother. Carl Kruger, a conservative Democrat, said that his when his long term partner’s gay nephew stopped talking to them after he voted against the measure two years ago, it prompted him to switch sides. At a national level, high profile Republicans with homosexual friends are chipping away at their party’s formerly monolithic opposition. John McCain’s wife, Cindy, supports gay marriage, as do Laura and Barbara Bush. Dick Cheney, whose daughter Mary is lesbian, has said “people ought to be free to enter into any kind of union they wish.”

“I think if you’d done a poll twenty years ago, many people would have said ‘I don’t know anyone gay’ because it was so foreign and so awful, but as time goes on people can’t say that anymore,” Kennedy observes. “They can’t say gay marriage will destroy the block when they already know their gay next door neighbour.” Nationwide, support for gay marriage has risen to 53%, from 42% seven years ago, according to the latest Gallup poll, with the youngest demographics most likely to favour marriage equality. Even resolutely anti-gay rights Republicans, such as Michele Bachmann, are downplaying the issue, aware that it is losing its power as a political wedge and risks alienating moderates.

There is still a long way to go. “We shouldn’t forget that as New Yorkers we have tunnel vision,” Shain notes. “We recently did a trip through the South – Nashville, Memphis, Austin – and we had a great time, but I would not have felt comfortable making it known that we were a couple. Maybe that’s my bias, but I would never hold Mary Jo’s hand at the Grand Ole Opry.”

Currently, 29 states have gay marriage bans written in their constitutions. A further 12 have laws prohibiting it. The Defence Of Marriage Act, signed by President Bill Clinton in 1996, grants states the right to disregard gay marriages performed elsewhere. Whenever they travel, Shain and Kennedy take “an envelope, thick with documents,” granting medical and financial power of attorney, so that if anything happens to one of them, the other can deal with it. The gay partner who cannot visit a loved one in hospital is a cliché by now, but it remains emblematic of the rights and privileges same-sex couples are denied.

In Scotland, civil partnerships have the full legal force of marriage, although they are not equivalent. Benjamin Morse, an American, and his partner, Richard Mason, were married at Glasgow University Chapel by the Provost of St Mary’s Cathedral, Kelvin Holdsworth. There were hymns, prayers and a sermon, plus readings from Thessalonians and Ezekiel. “I think people were really moved by it,” Morse says. “We had atheists and Jews taking communion, because they thought ‘well if this is what religion can be, we’ll take part.’ It was immediately quite profound, feeling that we had this blessing upon us.”

Benjamin Morse, Richard Mason

Benjamin Morse, Richard Mason

As the son of a liberal Episcopal priest, with a doctorate in religious studies, it was important to Morse to exchange Christian vows. “Most people who get married in church are only doing it because it’s a pretty setting,” he says. “I think in one sense gay marriage can strengthen marriage as an institution because it gets it back to the fundamentals of it being about commitment and further away from old ideas of ownership. People who think marriage hasn’t evolved, well, I don’t know what century they’re living in.”

The Obama administration’s record on gay rights is a matter of dispute, between activists disappointed that he has not declared his support for gay marriage and others who argue that he has done what he can. Obama says his views on gay marriage are “evolving” and has instructed his Attorney General not to defend cases challenging the Defence of Marriage Act. He recently signalled that he will support a bill sponsored by Senator Dianne Feinstein seeking its repeal. The military’s “Don’t Ask, Don’t Tell” policy barring gay recruits from serving openly is no longer enforced. But for the time being, support for domestic partnerships, rather than federally recognised gay marriage, is as far as Obama will go.

The issue is headed to the Supreme Court. Last year, judge Vaughan Walker ruled that Proposition Eight, which banned gay marriage in California, is unconstitutional, concluding that “animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women… is not a proper basis on which to legislate.” In all likelihood, the Supreme Court’s decision will come down to Justice Anthony Kennedy, the swing vote between two ideological factions. In his written opinion, Walker quoted Kennedy’s previous rulings in cases striking down discriminatory laws no fewer than 13 times.

Prosecutors Theodore B. Olson and David Boies hope to secure a landmark civil rights ruling to go alongside Loving v Virginia, which struck down laws preventing inter-racial marriages in 1967, but some activists worry that the notably conservative court will find against gay marriage, dealing the movement a significant blow. “The Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states,” warned a statement issued by several leading gay rights groups. “We lost the right to marry in California at the ballot box. That’s where we need to win it back.”

Others wonder whether marriage equality is even an appropriate end to pursue. Law professor Nancy Polikoff argues that marriage “is not more important or valuable than other forms of family, so the law should not give it more value.” Leslie Cohen, who is marrying her partner of three decades, Beth Suskind, had to overcome her instinctive aversion to conformity to do so. “You live on the outside. And many of us unconsciously don’t want to totally give that up,” she says. “Now, with marriage, you’re just like everyone else. So there is a resistance to it.”

Like all old married couples, Shain and Kennedy have their share of arguments, the latest being about how often they should turn on the air conditioning in this sweltering New York summer. They’re debating whether or not to accept a friend’s offer to host a cocktail reception tonight, because, as Kennedy diplomatically puts it, “one of us thinks it will be so exhausting that we’ll just want to go home and go to bed, and the other one wants to party.” Downtown Manhattan is certain to be heaving, as thousands of gays gather, with friends and family, to celebrate gaining the right to join the world’s least exclusive club – the fraying, imperfect institution of marriage.

“The day the news was announced, two couples that we know had enormous fights, because one of them said ‘it’s time, let’s do it’ and the other said ‘I’m not ready,’” Morse laughs. “So now we have some of the same kind of pressure as straight couples. I’ve known gay couples who believe that gay relationships should be different, with different rules, but the beautiful thing is that now we have a choice.”

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