Thursday, July 19 , 2018, 1:02 am | Fair 64º


Susan Estrich: Big Steps and Baby Steps for Gay Marriage

Despite progress in New York, Rhode Island sets back the cause for no good reason

Just days after New York Gov. Andrew Cuomo signed into law legislation legalizing same-sex marriage, Rhode Island Gov. Lincoln Chafee and the coalition supporting similar legislation in that state effectively conceded defeat.

Unable to collect the necessary votes in the state House of Representatives, the openly gay House Speaker Gordon D. Fox, D-Providence, introduced legislation providing same-sex couples not the option of marriage but of “civil union” — a fiction designed to allow for basic legal protections while depriving gay couples the legitimacy that marriage brings. Last week, the compromise legislation — opposed by gay-rights advocates as discriminatory — was passed by the state Senate, and Chafee has signaled that he will likely sign it.

It wasn’t so many years ago that even civil union was a controversial position among Democrats, much less many Republicans. So the action in Rhode Island can be seen, by Pollyannas anyway, as a step in the right direction. That was the view of Rhode Island state Senate President Teresa Paiva Weed, D-Newport, who told reporters, “We have moved one step in the right direction toward ensuring that individuals receive equal rights and protections under the law.”

But it is a baby step, and whatever protection it provides to committed couples, it does so with the back of the hand.

If gays and lesbians are free in Rhode Island to create relationships with the rights and responsibilities of marriage, what possible basis is there for denying them the right to be “married” — to welcome their families to their “wedding” (who celebrates a union?), to hold themselves out as husbands and wives, to formal as well as substantive equality?

I have not heard a single explanation for such discrimination — and there is no other name for it — other than that “marriage” is for people of different sexes. Fine. Go marry someone of a different sex. But that is not a legal position, not an argument based on anything other than personal preference, taste or (not to denigrate it, but it has no place in the legislature) religious doctrine.

I would never tell a priest, minister or rabbi to preside over any ceremony that he or she believes conflicts with his or her religious values. But what right does the state have to tell those rabbis, priests and ministers — not to mention justices of the peace — that they may not, as a matter of law, unite same-sex couples in a marriage as opposed to a civil union?

This is not a question of principle, but one of the placement of political fig leaves to cover political cowardice. I can understand those who oppose any form of civil union; I disagree with them completely, but at least they are being honest in their views. But if civil union provides, for practical purposes, the protections that marriage does, what good reason is there to deny committed individuals dignity along with protection?

The Rhode Island law goes beyond denying dignity. The fine print makes clear that it also denies fundamental rights in the name of someone else’s religious freedom. I have no problems with a priest refusing to perform a same-sex marriage. But I have a very big problem with the provision of the Rhode Island law that allows Catholic hospitals to deny to civil unioners (or whatever they are called) the rights afforded to husbands and wives when their loved ones are ill; or for Catholic universities to deny family leave to civil unioners who would otherwise be granted time off to care for an ill spouse. In Rhode Island, at least, the difference between civil union and marriage goes beyond formalities — for reasons that have no place in legislation.

A few years ago, same-sex couples in many states might have welcomed a law such as Rhode Island’s. But the experience of other states with gay marriage and the rulings of courts from California to Massachusetts have made what was at best a half-full cup appear, as it always has been, unfairly half-empty. At a time when America is celebrating our freedom, there is no reason to deny freedom and equality to any of our fellow citizens because of their personal and private lives.

— Best-selling author Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the USC Law Center and was campaign manager for 1988 Democratic presidential nominee Michael Dukakis. Click here to contact her.

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