By Advocate.com Editors
Originally published on Advocate.com July 06 2010 6:55 PM ET
In a way, the debate over same-sex marriage might never have happened without John Travolta.
It was 1977 when Joseph Melillo, a New Jersey native transplanted to Hawaii, offered to help a friend with a dance class on Saturday mornings. Since the film Saturday Night Fever was sweeping the country, the students, most of them senior citizens, wanted to learn to disco. Unbeknownst to Melillo, the teacher had also recruited Patrick Lagon to help with the class after seeing him do the freak, a disco dance, one night at a local club.
“I was busy with the students,” Melillo recalls. “Then I turned and looked at him, and he looked at me. We instantly fell in love. We’ve been together ever since.”
Their commitment led Melillo and Lagon to seek a marriage license in 1990—along with two lesbian couples, Tammy Rodrigues and Antoinette Pregil, and Ninia Baehr and Genora Dancel—and, when they were denied the license, to sue the state of Hawaii. The upshot: a ruling by circuit court judge Kevin Chang on December 3 declaring the state’s ban on same-sex marriages
to be unconstitutional under state law.
Now the question is whether that legal victory will ultimately prevail or whether same-sex marriage will be a passing fad, the disco of the 1990s. The next several months will see a bruising battle to determine the outcome. While mainland gays and lesbians are awaiting the outcome—too passively in the eyes of many Hawaii activists—opponents of same-sex marriage are preparing a series of measures to prevent the ruling from ever taking effect.
Yet in the meantime, what was once unthinkable looks increasingly inevitable. If Chang’s ruling is upheld by the state supreme court, as most predict it will be, the only thing that could stop same-sex marriage in Hawaii is an amendment to the state constitution. And while a movement to amend the constitution is under way, such an action could not be effected before the end of 1998. Thus, Hawaii will probably start issuing marriage licenses to same-sex couples by the end of this year.
“I didn’t plan this, and I didn’t predict it,” says Dan Foley, the attorney who filed the lawsuit for the three couples in 1991. “But right now it looks like we’re on the road to civil rights.” With last year’s passage of the Defense of Marriage Act, which bans federal recognition of same-sex marriages, along with similar legislation in 16 states, the road looks to be largely confined to the islands, at least for the time being. The December ruling prompted a year-end flurry of anti–gay-marriage rhetoric in various statehouses, with Colorado, Indiana, and Nebraska as likely locations for the introduction of antimarriage bills in upcoming legislative sessions. Only Massachusetts governor William Weld has indicated that he would be willing to recognize gay marriages performed in Hawaii.
Right now the laws banning gay marriage are largely theoretical. But if, as Foley predicts, Hawaii starts issuing licenses to same-sex couples, legal activists say these laws, including DOMA, will inevitably be challenged by mainland couples who marry in Hawaii and then return home. The result would be a morass of lawsuits wending their way through the courts into the next century.
In Hawaii, meanwhile, activists are still giddy from their recent victory. “It was wonderful to be in Hawaii that day,” says Ku’umeaaloha Gomes, a member of Na Mamo O Hawai’i, a group of native Hawaiians who identify as gay, lesbian, and bisexual and who advocate Hawaiian sovereignty. “We were part of history in the making, and we felt so proud.”
“There is just no question that this decision was enormous, immense, and wonderful,” says Evan Wolfson, senior staff attorney at the gay group Lambda Legal Defense and Education Fund, which is cocounsel in the case. “It’s a powerful statement about the truth of our lives.”
For the couples involved, the ruling was especially sweet, since the suit seemed quixotic at best when it was filed six years ago. “When the decision came from the judge, it was our ninth anniversary,” says Pregil. “We were really happy. We didn’t think it would be this long and this big.”
Indeed, the success of the same-sex marriage cause over the past three years stands in sharp contrast to its origins. If ever a gay rights case seemed likely to fail, it was marriage. Even Foley admits that he hoped at best “to get some good language” in a ruling against him that he could put to use in other gay rights cases.
The Hawaii marriage case dates back to 1990, when Bill Woods, a local activist, tried to organize a mass commitment ceremony for Hawaii’s first gay pride parade. “He was supposed to get twenty couples together,” says Melillo. “But nobody wanted to do it publicly. So then Bill asked whether Pat and I wanted to get married legally, and I said, ‘Sure, why not?’”
“He called and said, ‘Two other couples are ready to apply for the marriage license tomorrow,’ ” Baehr recalls. “ ‘If you want to, you have to let me know in half an hour because I’m going to put out a press release.’ Genora was not out yet and had a lot to lose, but she decided she wanted to do this, so we called Bill back and said, ‘We’ll be there.’ ” The next morning, December 17, 1990, was the first time the three couples met.
The event itself had all the trappings of a media stunt. The couples showed up to apply with press in tow. The officials at the license bureau sought an opinion from the state attorney general, who denied the application. It was an effective action that briefly drew public attention to the inequity of the law.
Unlike other actions, however, this one refused to fade, even though it had all the earmarks of a momentary diversion from other gay rights issues. Woods and the couples sought legal help to challenge the law. For months the state chapter of the American Civil Liberties Union held the case under consideration before finally turning it down.
It was April 1991 when Foley accepted the case. Since then, he has, in the words of Vanessa Chong, an attorney for the ACLU and a coordinator of coalitions of pro-marriage groups, “pretty much donated his practice to the case.” A straight man and a former legal director of the ACLU, Foley had taken on gay cases in the past. In 1985, for example, he successfully sued the island of Maui when the mayor revoked a park permit for the Miss Gay Molokai Pageant, a drag festival. Foley’s commitment to fighting antigay discrimination stemmed from personal feeling: His uncle had suffered greatly at the hands of his own family because of his sexual orientation.
While Foley gave the case his all, the lawsuit took a toll on the plaintiffs as well. “I lost my family doing this,” says Pregil. “When it went public, they said, ‘Let someone else fight for it.’ Well, hello, who is going to? It’s really sad, but it’s their loss, not mine.”
“Our private life has been this public issue since basically the beginning of our relationship,” says Baehr. “We wanted to have some private life.” The couple have since moved to Baltimore, where Dancel attends medical school.
The earliest ruling in the lawsuit dismissed the challenge to state marriage law out of hand on the grounds that the existing law was “obviously designed to promote the general welfare interests of the community by sanctioning traditional man-woman family units and procreation.” It wasn’t until May 1993 that the case finally took off when the state supreme court returned it to a lower court for trial, with the strong suggestion that the ban on same-sex marriage was unconstitutional.
In the meantime, the couples found little sympathy from national gay groups or indeed from many gays and lesbians. “They had valid concerns that we were never going to win, so why waste resources?” says Baehr. “Then there was the whole debate that maybe we shouldn’t ape heterosexuals. Then there was another argument that maybe we shouldn’t win because it would make the right wing angry and there would be a terrible backlash.”
For the couples, who endured more than two years tilting at the marriage windmill with little support, attitudes toward them changed overnight with the state supreme court ruling. “The day after the decision, we agreed to have a strategy meeting in my office,” Baehr says. “When I walked in, there were 40 people, most of whom I didn’t know. It was a quick transition from feeling very alone on this issue to having people say, ‘We’re going to tell you what to do.’ ”
That first victory in the state supreme court could have been undone by the state legislature, but so far supporters of gay marriage have succeeded in staving off any legislative moves. In its last session of 1996, the Hawaii house of representatives voted in favor of a constitutional amendment limiting marriage to couples of the opposite sex, but the state senate rejected such a measure.
The new session, which convenes in January, says Foley, promises “the toughest fight we have faced in the legislature.” While pressure is on lawmakers to do something in light of the ruling, the current political climate is so complicated, it’s difficult to know exactly what that something might be.
“We have a choice of scenarios here, none of which are going to be easy, all of which require significant resources,” says Chong. Supporters of Chang’s ruling are laboring under an initial burden as a result of last November’s election. While the outcome was, in Foley’s words, “a wash,” with equal numbers of incumbent opponents and supporters of same-sex marriage losing their elections, many legislators are nonetheless feeling the political heat. “There’s a perception that same-gender marriage is an important issue for a large part of the electorate,” says Chong. “The net result is a lot more legislators are shaking in their shoes.”
Some supporters of same-sex marriage say they aren’t willing to accept such a compromise. “I don’t want to settle for domestic partnership,” says Rodrigues. “As far as giving us some benefits, I say forget it. We’re halfway there—let’s go for it.”
Strategically, however, the move makes sense. Gay-marriage advocates are betting that such an amendment would create so much turmoil that it would never pass. “If we have a constitutional amendment where you have to vote up or down on both marriage and domestic-partner benefits, people will go all sorts of ways,” says Foley. A similar strategy effectively killed a measure to outlaw same-sex marriage in the California legislature last year. And even if the amendment passed in Hawaii, it would have to be approved by voters in November 1998.
Another option for legislators opposed to same-sex marriage would be to clear the way for a constitutional convention, known in local shorthand as a “concon,” where the issue could be considered by specially elected delegates. Voters approved such a convention last November, but the results are being challenged in court.
“If the legislature passes enabling legislation,” says Chong, “the 1998 general election would be when concon delegates are elected and 1999 would be the convention. The propositions would be on the ballot in 2000.” By that time, however, voters will find themselves in the unusual position of deciding whether to annul hundreds, perhaps thousands, of legal unions that have already taken place.
“If we can show the public real, existing families and ask them not to dissolve those marriages, it will be different,” says Foley. For the opposition, he adds, “it will be a real hard fight.”
Foley is also betting that the reality of gay marriage will seem less threatening than the picture painted by its opponents. “Once we have [legalized gay marriage], those arguments can be seen for their speciousness,” he says. “Desegregation met with resistance because it forced a group of people to be with people they didn’t want to be with. It changed white people’s lives. Gay marriage doesn’t do anything like that. The composition of the workplace will not change; your neighbors will not change. Nothing else happens.” Or, as Melillo puts it, “The sky doesn’t fall; the world doesn’t end.”
That’s something opponents of same-sex marriage are not eager to find out. “The religious right is very aware of this timetable,” says Chong.
In fact, the fight over same-sex marriage in Hawaii has been unusually civil. Gomes recalls that at a press conference announcing Chang’s ruling, a spokesman for Hawaii’s Future Today even gave her a congratulatory hug.
“Luckily, public discussion has never risen to the kind of hurtful, malicious, violent climate seen in other parts of the country,” says Chong. “There’s too much diversity here. There’s a climate of having to get along.” So far no increase has been reported in antigay bias crimes because of the debate.
Indeed, with its long-standing liberal tradition and tolerance for racial and ethnic intermarriage, Hawaii seems the logical place for the issue of same-sex marriage to have come up. “If you look at our history, we have that kind of openness and acceptance,” says Gomes. “I think we’re a different kind of community.”
And yet the hunger for same-sex marriage goes far beyond the islands’ shores. In Fort Lauderdale, Fla., in February, some 200 couples are expected to join together in a mass commitment ceremony as part of the city’s Winter Gayla 97.
“Publicly acknowledging your relationship is something many gay couples want to do,” says Arnoldo Ramirez, an organizer for the event. “Hawaii has given people hope that the civil right of marriage is within our grasp, that it’s a matter of time.”
Yet activists in Hawaii are concerned that mainland gays and lesbians are just sitting back and waiting to fill in a date on their wedding invitations while a handful of people on the islands pave the way. Says Melillo: “We feel frustrated that we haven’t gotten as much support from the mainland as we would like—not just financially but also morally.”
The largest group seeking such support is the Hawai’i Equal Rights Marriage Project, which runs on a shoestring budget largely out of a spare bedroom in director Sue Reardon’s home and on the covered terrace of activist Tom Ramsey’s apartment. “I’d hate to say we’re a virtual organization,” says Ramsey, pointing to the group’s Web site. “We do have a post-office box.”
Gays and lesbians in Hawaii have been energized by the marriage effort, says Ramsey. But for a cause with far-reaching national implications, HERMP’s fund-raising efforts on the mainland have met with spotty success at best. Foley is still owed some $50,000 in legal fees. The financial shortfall grates on local activists, who are convinced that a relatively modest investment could produce big results.
“My sense is that it should be a high priority for mainland organizations,” says Ramsey. “It would carry from one state to another. To us, it’s been frustrating not to somehow get the message over.”
Ramsey, Foley, and others criticize national gay groups, particularly the Human Rights Campaign—whose executive director, Elizabeth Birch, once lived in Hawaii—for using the marriage issue to raise money for themselves without passing any along to HERMP. But Kim Mills, a spokeswoman for the HRC, says that such criticism is misplaced. “The fact is that we are primarily a federal lobby,” she says. “We have provided information and assistance to people in Hawaii. We have spent money on this issue.”
When—not if, as Foley insists—same-sex marriage becomes the law in Hawaii, people are bracing for an influx of gay and lesbian couples looking to get hitched. But unlike their Hawaiian peers, who have had years to consider the issue, many mainland gays and lesbians may not understand exactly what marriage would entail.
“When I talk to the well-to-do Hollywood types, they don’t think they need it,” Foley marvels. “They think they have all the legal arrangements they need. They don’t understand that if the breadwinner is hit by a truck, you can’t sue.”
Many gay men and lesbians also have not considered that marriage is the ultimate coming-out statement. “The first thing you have to do before even thinking about getting married is come out,” says Rodrigues.
Because the idea of same-sex marriage is still so new for many mainland gay and lesbian couples, it is impossible to predict how they will avail themselves of the opportunity once they have it. Foley, for one, believes that some couples will choose romance over activism, privately getting married in the islands and then not making much of their union publicly once they return to the mainland. (No one in Hawaii believes that same-sex marriage will lead to the permanent relocation of a large number of gays from the mainland.)
Among the first to tie the knot, of course, will be the plaintiffs. “We feel we’ve waited all our lives for this,” says Melillo. “Every year is a hardship.” He and Lagon, both of whom are ministers, have talked about Melillo’s performing the ceremony himself. “We have family expecting a fabulous ceremony,” Melillo says. “We’d be neglectful if we didn’t have one.”
Baehr and Dancel plan a private wedding on a mountain slope in Maui, away from the glare of the media. “We may have found ourselves doing our best to live up to our surprise responsibility as role models,” says Baehr. “But on our wedding day it’s not about public education. It’s about our commitment to each other, and that’s private and personal.”
Sitting on their patio in Waianae on Oahu with their daughter, her boyfriend, and their 7-month-old grandson, Pregil and Rodrigues talk about the case every night. They keep a running conversation of their plans.
“I wanted to get married on Christmas Day,” says Pregil.
“But we have our grandson’s party coming up, so we’ll have to do that first,” Rodrigues explains.
“She wants it fabulous,” adds Pregil. “I want it simple.”
“I guess I’m old-fashioned,” Rodrigues concludes. “You do it once and one time only. For me, once I’m married, even if there are hard times, I’m not getting a divorce. I’ll do whatever I have to to make it work. I don’t fight for something just to let it go.”