What happened in Hawaii is that the Supreme Court, and this was the first case, the first challenge, Evan Wolfson and others led the charge in Hawaii. And actually, I believe the original case actually was through the ACLU and then Evan came on board through Lamda. So the State Supreme Court said gay and lesbian couples under the constitution may have the right to marry. And you, the legislature, need to examine this a little more deeply. So the legislature took it up and basically it freaked them out. They basically said you need to come up with a correction for this. So the correction was that they wrote up language to draft an amendment to the state constitution to define marriage only as a man and a woman. And that went in front of the voters in ’98, I believe. And 69% of the voters voted in favor of the amendment and that became written into the state constitution, which effectively got rid of any chance of gays and lesbians being able to marry in Hawaii. So it wasn’t really that the people or the legislature was ever necessarily behind it. But it was a judicial decision. And I think when you look at Massachusetts, they looked back at judicial decisions. The same thing happened in Alaska. Vermont moved us a little bit closer, but it allowed for the separate and not quite equal thing called ‘civil unions.’ And Massachusetts, I think the court there looked at these other cases and I think we’re looking toward Canada because the Ontario Court of Appeals had ruled that same sex couples can marry legally under the constitution of Canada. And they drafted their decision very carefully so that the legislature could not undermine their decision, which is what had happened in previous cases.
Are the Dutch gay marriages recognized here?
No. Basically, this is one of the many side effects of the despicable 1996 Defense of Marriage Act, which defines marriage in federal law for the first time and defines it as a man and a woman only. So basically, I know there are cases and I think there are challenges now where an American has married a Dutch person and are claiming they should be given the same rights, say for that person to be able to come and get a green card. In Canada, it’s happening as well now. So we don’t recognize, on a federal level, we don’t recognize those marriages. On a state level, officially we don’t. Massachusetts may now. New York I know, they’re in the process of figuring out what to do. And that’s a sort of amazing and exciting thing about this is that it’s so different from state to state. It’s so incredibly different. And the variety is so all over the place that there’s so much grey area to sort out that it’s kind of a thrilling time in a way.
Isn’t a will independent of marriage, so you could leave everything to a stranger, gay or not?
It is, sort of. In Sam’s case, you saw that a partner had written a will, thought that he was leaving this property and his legacy to Sam and the three boys. To Sam specifically, but to the benefit of the boys as well. And this is one of the messed up things because even in Oklahoma, which at the time of Earl’s death had common law marriage, if this had been a man and a woman, there would have been no need for a will even. Common law marriage, even if they hadn’t had an actual ceremony or licenses, would have recognized them as married. So a will is only as good as the judicial system around it to support it. And the judicial system in Oklahoma was not there to support a gay couple. A will in Virginia now, I don't know if you know this, but Virginia has this new like Draconian law, which basically says that two people of the same sex in a relationship, if they have any private contracts between them, those contracts will be nullified.
How is that legal? How are contracts an issue of gay or not?
Well, it’s incredible. It’s on its face so unconstitutional on so many levels, but they defend it as needing it to defend marriage. Now it’s not only marriage, it’s any instance of a marriage-like state between a couple. So even though there’s a Defense of Marriage Act in Virginia, even though there are all these laws to define marriage as a man and a woman, they want to go even further and say that you can’t even have a medical health care proxy for your partner, that you can’t have a durable power of attorney for your partner. That you can’t do any of the things that gay and lesbian couples need to do to protect their relationships in a society that doesn’t recognize those relationships. So that’s outrageous and this is also what will probably occur in Louisiana now that they’ve passed this constitutional amendment. It’s a real threat to the whole issue of private contracts.
