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Same-sex marriage

The issue nationwide is at a tipping point

by Kristy Kennedy

Don’t call Caroline Fox and Elizabeth Anvick of Bloomington a “nontraditional” couple.

They don’t care for the label because they see themselves as being pretty traditional, aside from the fact that they are both women. “Elizabeth and I are a plain-old, boring married couple,” Fox says. “We both work, go to church, have families that love us, do charity work and argue about who will take out the garbage.”

In their hearts, they say, they’ve been married since 2003, when they had a commitment ceremony surrounded by friends and family. According to the state of Illinois, they have been official since last June, when the state first began offering civil unions. In the first six months, besides Fox and Anvick, about 3,700 couples have sought civil union licenses in 90 of Illinois’ 102 counties, according to Equality Illinois.

“Now, we’re civilized. That’s what we call it,” Anvick says. The civil union gives Anvick and Fox the same state-level rights as married couples. “First and foremost, it gives us legal protection in the state of Illinois,” Anvick says. They will be able to pick up each other’s prescriptions, make funeral and end-of-life decisions for each other, share a nursing home room, inherit property, become certified foster parents as a couple and file state taxes jointly. Also, Fox, an educator with summers free, will finally be able to use Anvick’s company swimming pool reserved for employees and their families. “We fought for that pool pass for years,” Anvick says.

But if the couple moves to another state, even one that provides same-sex marriages, their union may not be valid. While Illinois recognizes same-sex marriages and civil unions from other states as civil unions here, states such as New York that offer same-sex marriage have no provision to recognize a civil union. That means Fox and Anvick would not have any protection or rights if they moved to New York.

To date, 18 states, plus the District of Columbia, have some form of rights for same-sex couples, but they differ widely in the protections they provide, according to the National Conference of State Legislatures. For instance, even though domestic partnerships are available in Wisconsin, two people of the same sex can’t adopt each other’s children. Also, a majority of states, 39, have adopted prohibitions of same-sex marriage either in their constitutions or by defining marriage as between a man and a woman in state law. Some of those states, like Illinois, also offer rights to same-sex couples.

Same-sex marriage, it turns out, is a complicated affair.

It’s also polarizing. Americans are split close to the middle when it comes to being in favor of (53 percent) or opposed to (47 percent) gay marriage, according to a 2011 Gallup poll. Those opposed are very concerned about the preservation of religious freedom and traditional families with a mom, dad and children. “Why does [the LGBT community] feel compelled to go into the public square and change the natural definition of marriage for everybody?” asks David Smith, executive director of the Illinois Family Institute, an organization that opposes gay marriage.

It’s also, clearly, one of the main issues of the day as state legislatures across the country grapple with whether to extend rights to same-sex couples or not, as court cases deal with issues such as people denying goods and services to such couples on religious grounds, and as the federal government weighs in on the matter. The U.S. Department of Justice recently refused to defend the Defense of Marriage Act (defining marriage as between a man and a woman for federal purposes), and President Barack Obama required hospitals that receive Medicare and Medicaid payments to allow visitation rights to gay and lesbian couples.

Experts say all of the action signals a tipping point in America. “It’s headed in the direction of same-sex marriage for all,” says Douglas Laycock, professor of constitutional law at the University of Virginia. “It might take another generation to hit all the red states, but it seems pretty clear that same-sex marriage is the wave of the future.”

Popular opinion is shifting. Even though that 2011 Gallup poll showed Americans are pretty evenly split on the subject of same-sex marriage, it is the first poll to show a majority of Americans believe same-sex marriage should be recognized with the same rights as traditional marriages.

In 1996, only 27 percent of Americans held that belief. Young people ages 18-34 helped swing last year’s percentage, with 70 percent of them approving of gay marriage. Bernard Cherkasov, CEO of Equality Illinois, described the Gallup poll as a watershed moment for the marriage equality movement. “After states like Massachusetts passed marriage equality, neighbors looked around and saw the world wasn’t ending,” says Cherkasov, who married his partner in Canada. “There is no reason why a couple who is loving and committed shouldn’t have the same treatment as straight couples. People get the concept that if you work hard and do what you are supposed to do, then you should be equal.” Interestingly, Gallup found Americans’ views on the issue seem to be most shaped by their views on what causes sexual orientation. People who believe members of the LGBT community are the product of their environment are less supportive of gay rights, while those who believe people are born gay are more supportive.

If Tracy Baim, publisher and executive editor of the Windy City Times in Chicago, had a crystal ball back in the mid-1980s when she helped found the newspaper, she would have said it would take at least 50 years for marriage equality to happen in America. But the movement gained tremendous momentum when Hawaii’s high court in 1993 ruled that excluding same-sex couples from marriage was discrimination, says Baim, whose newspaper focuses on LGBT issues. Before that, states had been looking at hate crimes and discrimination.

To date, about half of states protect against discrimination for sexual orientation, while the federal government offers no protection. “When marriage came along, it was a holy grail, a holy cow,” she says. “It pulled all of our issues along with it. Allies started picking off easier issues to be seen as progressive on gay issues. It became anything but marriage.” To further its cause, the LGBT movement has been using three strategies: lobbying federal and state lawmakers; getting out in the community in an attempt to show people at work, church and in the neighborhood that same-sex couples are normal; and by voting to elect pro-LGBT politicians, Cherkasov says.

At the same time, conservative groups pushed for the Defense of Marriage Act to be enacted, and some states began to reinforce heterosexual marriage by defining it, says Ira Lupu, professor of law at George Washington University in Washington, D.C. “Social taboos are the strongest about relationships, sex, marriage and intimacy,” he says. “Those are the things people cling to most fiercely. It’s deeply emotional.” Support for same-sex marriage drops off in older age groups, with about 50 percent of people ages 35-54 and 39 percent of people 55 and older in favor of it, the Gallup poll showed. Party lines are drawn sharply, as well, with 70 percent of Democrats, 60 percent of independents and 30 percent of Republicans supporting gay marriage.

Lupu thinks public approval is due to current lifestyles. “It’s not about what should we let people do; it’s about what we should recognize,” he says. “People already live together. Once it gets reduced to that, it gets harder and harder to defend.” Chicago Mayor Rahm Emanuel says marriage rights are something that opposite-sex couples take for granted. After hearing about a woman in Florida who was denied the chance to visit with her dying partner, Emanuel asked Obama to craft the order allowing visitation while he was the president’s chief of staff. “To me, marriage is a recognition of love, and the state should not be in the business of discriminating,” he says. As mayor, he has presided over many civil unions.

The LGBT community is seeking full marriage rights at the federal and state levels. In Illinois, a marriage bill has been introduced in the General Assembly this year, although supporters say it is unlikely to come to a vote because of the upcoming election. “We just approved civil unions, so the idea of marriage is marinating in Illinois,” says state Rep. Deborah Mell, a sponsor of the bill. Still, she says Illinois should recognize same-sex marriage in case the Defense of Marriage Act is repealed or found to be unconstitutional. If that happened, Illinois’ civil unions would not be recognized by the federal government. “Illinois would be at a disadvantage. It’s all about separate is not equal,” says Mell, a Chicago Democrat who married her partner, Christin Baker, in Iowa last year because the two wanted a marriage certificate.

Supporters see marriage as a fundamental struggle for civil rights and against discrimination. “Civil unions don’t cure the inequality that exists,” says Camilla Taylor, marriage project director for Lambda Legal and lead counsel in the Iowa Supreme Court case that in 2009 struck down the state’s same-sex marriage ban. Besides the disparity between states, couples also face discrimination because the public doesn’t understand the term civil union, Taylor says.

Lambda Legal in Illinois has heard complaints from couples denied hospital visitation, death certificates and the ability to participate in school family days. In Springfield, a committee in charge of health insurance for city employees initially rejected benefits for civil union partners because of cost. “It was illustrated in very powerful terms that even people who are public officials don’t understand what civil unions are,” Taylor says. “Being branded as a civil union partner instead of a spouse is a government label of inferiority. When government says that, it invites discrimination.”

The discrimination argument is also used by opponents of same-sex unions who see the matter as an affront to religious freedom. “Special sexual rights can’t coexist with religious freedom,” says Smith of the Illinois Family Institute. “That is troubling because this country was founded on religious liberty.” Even though churches have the right in all states to deny marriage to same-sex couples or anyone else they wish, Smith says the public and religious organizations should be able to live and work by their faith. For example, he is dismayed that Catholic Charities in Illinois recently got out of foster care for refusing to place children with same-sex couples.

Catholic leaders in Illinois feel attacked by state government and worry about the future of Catholic schools and other public ministries. In a pastoral letter issued in January, Bishop Daniel Jenky of Peoria wrote: “Eventually, it may come to pass that our fidelity to the Gospel of Christ and to Catholic tradition may place us in direct conflict with recent legal definitions of the State of Illinois.” He also chastised Catholic politicians for supporting measures against church teachings, saying, “I am especially scandalized by some ‘Catholic’ politicians who willingly collaborate with efforts to restrict the civil liberty of the faith tradition from which they were originally sprung.”

Private businesses in Illinois also face civil rights complaints. Two bed-and-breakfasts in Illinois, one near Paxton and the other in Alton, refused to host a civil union ceremony for a gay couple last summer. At press time, complaints against the two were pending before the Illinois Human Rights Commission. “We are seeing people of faith being persecuted because they want to live by the dictates of their faith,” Smith says. “What’s next? Are we going to force Jewish deli owners to provide pork? Or require Muslims to provide hard liquor? What’s happened to liberty? Live and let live.”

Lambda Legal’s Taylor contends that those views allow for discrimination under the guise of protecting traditional marriages. But Laycock says religious groups have a point. “Essentially, they are parallel claims,” he says. “Both the gay and religious communities are saying, ‘Here is an aspect of human identity that is important to people.’ There’s a perfectly sensible middle, but only a few of us are occupying it.” New York lawmakers, for instance, added a provision to their same-sex marriage law that would exempt a religious organization from using its property for purposes inconsistent with its views on marriage. Some legal experts say that protects Catholic Charities in New York. While the language could be challenged in court, another measure in the law calls for the entire act to be invalid if any part is found to be invalid, putting marriages at risk.

But more often than not, Laycock says both sides are focused on all-or-nothing legislative measures rather than seeking compromise. “One side doesn’t want same-sex marriage, but the other doesn’t want religious liberty,” he says. Clarity is sought from the courts. Legal experts say the U.S. Supreme Court could rule on gay marriage as early as next year, on Proposition 8, a California ban on same-sex marriage through a 2008 referendum that limited marriage to a man and woman. The Defense of Marriage Act also is being challenged in several courts, and a bill to repeal the act has been introduced in both chambers of Congress. Since the Justice Department has bowed out of the court case, U.S. House Republicans are paying for the Defense of Marriage Act’s defense.

Until that clarity arrives, Caroline Fox and Elizabeth Anvick intend to continue to be a “plain-old, boring married couple” and hope to add a child to their party of two. “It would be nice to be recognized as a family,” Fox says. “But we know this much to be true: There’s no less love in a nontraditional family. I hate to call it that. We share a life and build a home, do the best we can and love each other. We want what everyone else wants, to be accepted for who we are.”

Kristy Kennedy is a Naperville-based free-lance writer.

Illinois Issues, May 2012

 

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Elizabeth and Caroline
Elizabeth Anvick and Caroline Fox of Bloomington had a commitment ceremony in 2003.

Quinn surrounded by crowd applauding
Gov. Pat Quinn signed civil unions into law on January 31, 2011, in Chicago.