One year after the historic court ruling giving gay and lesbian couples the right to marry in Massachusetts, activists and lawyers here are sticking with their strategy of aggressively pushing to expand that right, even though the Nov. 2 election revealed a nation far from ready for same-sex unions.
Gay & Lesbian Advocates & Defenders, the Massachusetts group that successfully argued for the right to marry in the Bay State, is pressing ahead with a case to allow same-sex couples from out of state to marry here. In August, GLAD filed another lawsuit, on behalf of seven gay and lesbian couples seeking the right to marry in Connecticut.
Other activists are also arguing the issue in the courts. Cases seeking marriage rights for gays and lesbians are still pending in New Jersey and California courts. In several states, advocates plan challenges to bans on same-sex marriage approved by voters on Election Day, though activists remain divided about whether those efforts might backfire, speeding passage of a Federal Marriage Amendment.
Eleven states passed laws or constitutional amendments banning same-sex marriage on Election Day, most of them by wide margins, after opponents were galvanized by the Massachusetts ruling handed down one year ago today by the Supreme Judicial Court.
President Bush supports a federal constitutional amendment to ban same-sex marriage, and the GOP used the issue to mobilize socially conservative voters this year. Those developments have prompted intense debate among activists and analysts across the country over whether it is wise to push for further same-sex marriage gains through the courts in the face of such a strong backlash.
Some, like Andrew Koppelman, professor of law and political science at Northwestern University, would like to see the lawyers hold off, in the hope that with more time Americans will accept same-sex marriage.
''Imagine you have a hornets' nest outside your house, and it's November," he said. ''You can wait for the winter to come and kill the hornets, or you can go out and whack the nest with a baseball bat. What we just saw in this last election are the consequences of whacking the hornets' nest with a baseball bat. All litigation can accomplish now is to make people who are already uncomfortable about same-sex marriage more anxious and defensive."
But GLAD civil rights director Mary Bonauto says, ''The hornets have been buzzing at us for 30 years."
Going into the election, 37 states had enacted laws or approved constitutional amendments banning same-sex marriage, most of them before the start of the Goodridge suit in Massachusetts, which won seven same-sex couples the right to marry.
''The religious right wanting to deny rights to gay people has been a consistent theme," she said. ''We have always been cautious, but the worst thing to do right now is to stop the public conversation."
Besides, Bonauto said, polls of voters on Election Day give advocates of same-sex marriage cause for optimism. More than half of those surveyed favored extending rights to same-sex couples, an indication, she said, that voters are more willing to recognize gays and lesbians than the 11 electoral defeats suggest. Most of those 11 states had marriage bans in place, and she and other advocates said they had not expected the issue to be a close call in any state except Oregon, where same-sex marriage opponents prevailed with 57 percent of the vote, the smallest of the 11 margins.
''There is not more homophobia in America today because of the Goodridge decision," said Josh Friedes, advocacy director of the Freedom to Marry Coalition of Massachusetts. ''What is becoming clear is how much homophobia previously existed and is just now rising to the surface, and this is traditional in a civil rights struggle. What they're doing right now is saying, 'If you press for equality, there will be repercussions.' But the repercussions if we don't press for equality are far greater."
Still, the ballot-question defeats Nov. 2 left gays and lesbians feeling ''like they've been gut-punched," he said. ''A lot of people do feel isolated and rejected nationally."
Election Day ''was the best of times, and it was the worst of times," said Arline Isaacson, cochairwoman of the Massachusetts Gay and Lesbian Political Caucus. Worst, because same-sex marriage in Massachusetts ''generated a backlash of ballot questions across the country that was inevitable and should have been expected." Best, because in Massachusetts, Isaacson and others said, Nov. 2 was a good day for advocates of same-sex marriage.
The legislators who last spring had opposed a constitutional amendment banning same-sex marriage and stood for reelection in the fall won their contests. Some of those legislators had walked the halls of the State House stony-faced after the Constitutional Convention on the amendment earlier this year, certain that their votes had doomed their political fortunes, and for months, opponents of same-sex marriage vowed to defeat the legislators using the issue.
Those threats came to naught. In the eight open seats where the candidates were on opposite sides of the amendment issue, six who opposed the amendment won. Since the first of thousands of same-sex marriages took place in Massachusetts on May 17, the issue has receded from public view in this state, and polls suggest that the public is getting used to the idea of same-sex couples who have married.
A second vote on whether to place a state constitutional amendment on the 2006 ballot is expected next year, but the battle will be steeper for those opposing same-sex marriage, who narrowly prevailed last time. Salvatore F. DiMasi, who favors same-sex marriage, has replaced Thomas M. Finneran, a staunch opponent, as speaker of the House. Even those who pushed most aggressively for the amendment have conceded that the battle will be far tougher this time, now that thousands of same-sex couples have wed.
In the late 1990s, when the Goodridge case was being prepared, Isaacson found the outcome difficult to imagine. At meetings to discuss the suit, she had cautioned that the timing was not right, that it was too soon to try to win marriage rights without alienating many people.
GLAD decided to bring the case after almost a decade of appeals from gays and lesbians and only when Bonauto and others decided that, from their perspective, enough progress had been made -- gay-friendly state legislation, increasing public comfort with homosexuality -- to give them a good chance of success in the courtroom.
Isaacson still believes that the timing of the Goodridge case had negative national impact. ''The country wasn't ready," she said. ''Our community hadn't done enough work on the ground, even though the political allure of this issue would have caused the radical right to glom onto this issue, no matter what."
In the Bay State, however, ''things were changing for the better at a faster rate than I and many of us ever anticipated," she said. ''So hope springs eternal."
Although some see GLAD's aggressive court strategy as incautious, its current lawsuits have been planned as meticulously as the Goodridge suit. That case was argued in Massachusetts, not only because the Supreme Judicial Court and voters in the Bay State are relatively liberal, but because the state Constitution contains an equal-protection provision that Bonauto and her colleagues considered amenable to their cause.
The constitution in Connecticut, where the advocacy group has opened the next front in the same-sex marriage battle, contains a similar provision. After the Bay State refused to grant marriage licenses to out-of-state same-sex couples, citing a 1913 law, GLAD gathered plaintiff couples and brought suit, arguing that the 1913 law is discriminatory and inconsistent with the SJC ruling.
In August, Superior Court Judge Carol S. Ball banned out-of-state same-sex couples from marrying in Massachusetts, ruling that the 1913 law was not discriminatory, because the state is applying it to all couples, regardless of whether they are gay or straight. She did express misgivings about the 1913 law. GLAD plans to continue pushing that case.
Their success here has given local gay-rights activists cause for hope, they say, even as the Election Day defeats have advocates elsewhere contemplating retreat.
''Massachusetts is a decade ahead of the rest of the country on equality for gays and lesbians," Friedes said. ''It's really been only in the past 24 months or so where we've seen polls consistently showing that in Massachusetts, more people support equal marriage rights for gays and lesbians. What happened in the rest of the country is not a surprise. We should not fear what has happened in the rest of the country. We shouldn't change our strategy."
That strategy ''is just going to serve to mobilize the citizens of Connecticut and other states even more," said Kristian M. Mineau, president of the Massachusetts Family Institute, which has pushed hardest for a marriage amendment here. ''That is why some of these other states are rallying with these amendments. It's more than a backlash. There's a real groundswell."