[jessyhalm]

Thought the following recent decision,IN THE MATTER OF THE ESTATE OF MARSHALL G. GARDINER, Deceased, issued by THE SUPREME COURT OF THE STATE OF KANSAS, would interest some of you concerning what a “marriage” legally is.



The Court stated, "The Legislature has declared that the public policy of this state is to recognize only the traditional marriage between 'two parties who are of the opposite sex,' and all other marriages are against public policy and void," Justice Donald Allegrucci wrote. "We cannot ignore what the Legislature has declared to be the policy of this state."


In addition to what the Court stated above, a number of very important points concerning constitutional law are stated by the Court which every freedom loving American ought to study and remember:


“The fundamental rule of statutory construction is that the intent of the legislature governs. When construing a statute, words in common usage are to be given their natural and ordinary meaning.”

The understanding of “marriage” as being a union between one male and one female is the “common usage” definition of marriage from the very founding of our nation. That definition is a legally binding definition within statutory law and is required to be observed by our public servants.



“In determining legislative intent, courts are not limited to consideration of the language used in the statute but may look to the historical background of the statute, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested.”

In other words, in determining the intent for which a state has involved itself in, say issuing “marriage licenses”, a review of the historical purposes for which the State has involved itself in issuing marriage licenses and the purposes sought to be accomplished, is very important in determining the intent, which is required to be followed.

The Court went on to say:

“We apply the rules of statutory construction to ascertain the legislative intent as expressed in the statute. We do not read into a statute something that does not come within the wording of the statute. We must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.

5. The legislature has declared that the public policy of this state is to recognize only the traditional marriage between two parties who are of the opposite sex.

6. The words "sex," "marriage," "male," and "female" in everyday understanding do not encompass transsexuals. The common, ordinary meaning of "persons of the opposite sex" contemplates what is commonly understood to be a biological man and a biological woman. A post-operative male-to-female transsexual does not fit the common definition of a female.

7. A traditional marriage is the legal relationship between a biological man and a biological woman for the discharge to each other and the community of the duties legally incumbent on those whose relationship is founded on the distinction of sex.”


The reason I posted the above case is simply to give the participants on this board who may be interested in an understanding of our constitutional system, a decision handed down by a Court which abides by the fundamental rules concerning constitutional law, unlike the Massachusetts Court which ignored fundamental rules concerning constitutional law and imposed its personal predilections as law…another word for tyranny. We are fast entering a stage in our society dominated by public servants who are actively engaged in anarchy.


JWK
ACRS
"As nightfall does not come at once, neither does oppression. In both instances there is a twilight where everything remains seemingly unchanged. And it is in such twilight that we all must be aware of change in the air - however slight - lest we become unwitting victims of darkness."___Supreme Court Justice William Douglas

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June 19, 2003

Gay Marriage Plan: Sign of Sweeping Change in Canada

By CLIFFORD KRAUSS

TORONTO, June 18 — Canada's decision to allow marriage between same-sex couples is only one of many signs that this once tradition-bound society is undergoing social change at an astonishing rate.

Increasingly, Canada has been on a social policy course pursued by many Western European and Scandinavian countries, and over the last few decades it has been moving gradually more out of step with the United States.

Even as the government announced on Tuesday that it would rewrite the definition of marriage, it was also in the process of transforming its drug policies by decriminalizing possession of small amounts of marijuana and, to combat disease, permitting "safe-injection" clinics in Vancouver, British Columbia, for heroin addicts.

The large Indian population remains impoverished, but there are signs that native peoples are taking greater control of their destinies; their leaders now govern two territories, occupying more than a third of Canada's land mass.

As far as the ease with which society changes, Canada is virtually in a category by itself.

Canada is a country that has never had a revolution or civil war, and little social turbulence aside from sporadic rebellions in the 19th century and a splash of terrorism in Quebec in the 1960's and 1970's.

The country's demographics have changed dramatically since then, when the government of Pierre Trudeau opened wide the country's doors to Africans, Asians and West Indians as part of an attempt to fill Canada's huge, underpopulated hinterland. Eighteen percent of the population is now foreign-born compared with about 11 percent in the United States, with little or no debate over whether the effects of such change in culture, demographics and national identity is good or bad.

Only in the last generation have Toronto, Montreal and Vancouver, with one third of the population, become multicultural polyglots, with the towers of Sikh temples and mosques becoming mainstays of the skylines and cuisines and fashion becoming concoctions of spices and patterns that are in the vanguard of globalization.

Toronto, once a homogeneous city of staid British tradition, now counts more than 40 percent of the people as foreign born. There are nearly 2,000 ethnic restaurants, and local radio and television stations broadcast in more than 30 languages.

"Everything from marriage laws to marijuana laws, we are going through a period of accelerated social change," said Neil Bissoondath, an immigrant from Trinidad who is a leading novelist. "There is a general approach to life here that is both evolutionary and revolutionary."

Mr. Bissoondath said the balance went back to the ideals of the Tory founders of Canada, who remained loyal to the British crown and who instilled a laissez-faire conservatism "that says people have a right to live their lives as they like."

That philosophy was a practical necessity in a colony that was bilingual after the British conquered French Quebec, creating relative social peace by allowing greater religious freedoms than even Catholics in England had at the time.

The live-and-let-live approach was codified by the 1982 Charter of Rights and Freedoms, Canada's Bill of Rights. Being as young as it is, the charter occupies a vivid corner of the Canadian psyche. So when three senior provincial courts ruled recently that federal marriage law discriminated against same-sex couples, the Liberal Party cabinet decided to go along and not appeal.

While the new law will have to be passed by the House of Commons, little organized resistance has developed.

Few have complained that a national policy pertaining to something as intimate as marriage would be set by courts in Quebec, British Columbia and Ontario rather than a federal body. In part, that reflects the great relative political strength that regional governments have developed in what is known as the Canadian Confederation, where the federal government is weaker than most central governments in the West.

But it also reflects poll results that show a majority of Canadians support expanding marriage to gay couples. Last year, the Quebec provincial assembly enacted unanimously a law giving sweeping parental rights to same-sex couples, with even the most conservative members voting in favor despite lobbying by the Roman Catholic Church.

"Canada has always been in the vanguard in relation to many societies in the world," Prime Minister Jean Chrétien said Tuesday, speaking in French to reporters after he announced the cabinet's decision. "We have met our responsibilities."

Nowhere has the social change been more dramatic than in Mr. Chrétien's home province of Quebec, which as recently as the 1960's was deeply conservative and where the church dominated education and social life. Since the baby-boomer generation started the "quiet revolution" in favor of separatism, big government social programs and secularism, abortion and divorce rates there rose to among the highest in Canada. Meanwhile, church attendance plummeted.

Now the pendulum is moving in the other direction, ever so slightly.

"There is a centrist mentality in Canada that translates into the political system not tolerating the Pat Buchanans nor the leftist equivalent," Michel C. Auger, a political columnist for Le Journal de Montréal, said. "There is a unified fabric here that is a lot stronger on social issues than it seems to be in the United States."


Canada's Celebration of Marriage

The landmark ruling came down from the north with some of the simple delight of a June wedding announcement: "Same-sex couples are capable of forming long, lasting, loving and intimate relationships." In unanimously affirming the obvious, an Ontario appeals court opened the way for Canada to end the bar on marriage between partners of the same sex. Final approval of a milestone law striking down discrimination against gay couples is expected within months. But the northward flow by gay couples from the United States has already begun. Canada has no residency requirements for love-struck people intent on marriage, while Belgium and the Netherlands enacted tighter restrictions in pioneering legal gay unions.

When they head home after the vows and rice, the newlyweds will expect to be treated as legally married people here, as will gay Canadian couples visiting the United States. They should get that respect, both out of simple decency and because this nation has a long history of recognizing legal marriages performed across borders.

Unfortunately, the United States has a long way to go to match Canada's record of tolerance on this issue. In contrast to Canadian jurists, our Supreme Court is only now considering a ban on the antediluvian Texas law criminalizing intimate relations by homosexuals in the privacy of the home. And, far from liberalizing the law of the land as Canada is choosing to do, Congress responded to the gay-marriage issue in 1996 by hastily defining heterosexual union alone as the marriage standard for purposes of federal benefits in the land of the free and the home of the brave.

Right now Vermont recognizes civil unions, a step short of full marriage rights, with a handful of other states installing domestic partner protections. There are cases pending in Massachusetts and New Jersey that could lead to decisions ending marriage discrimination in those states. The American public is not yet as ready to accept marriages between same-sex partners as a natural part of the landscape as polls show Canadians are, but change will be unstoppable in time, whatever the pace proves to be. Canada's choice of a clean break with the past is a stirring moment. Gay couples have a place where they can legally be joined in matrimony, and life goes on, happily ever after or not.

Copyright 2003 The New York Times Company

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November 20, 2003

A Victory for Gay Marriage

"Without a doubt, this is the happiest day of our lives," declared Gloria Bailey, a 62-year-old Cape Cod resident. Ms. Bailey and her partner were two of the plaintiffs in this week's landmark Massachusetts ruling that says gay people have the right to marry. When the rights of disadvantaged groups are newly recognized, there is often opposition, some of it fierce, and the road ahead may be rough. But like the early court rulings striking down segregation, this has the feel of a legal revolution beginning.

The Supreme Court has begun to find privacy and equal protection rights for gays in the federal Constitution, notably earlier this year, when it struck down Texas' sodomy law. But the Massachusetts court, observing that its state constitution "is, if anything, more protective of individual liberty and equality," leapfrogged over the federal courts, ruling that at least in Massachusetts, gay equality extends to marriage.

The court's logic is persuasive. It notes that marriage is both a social institution and a privileged legal status for things like child custody and survivor benefits. Denying gays the benefits of marriage deprives them of equal protection. The court rejected the state's arguments, including its chief one, that "marriage's primary purpose is procreation." Heterosexuals can marry, the court noted, even if they are unable to have children. The ban is simply about prejudice, the court concluded, much like state laws barring interracial marriage, which lasted until 1967, when the Supreme Court struck them down in Loving v. Virginia.

This week's decision has been greeted with both dismay and joy in Massachusetts and the nation. Gov. Mitt Romney has called for a state constitutional amendment overturning it. But such an amendment cannot be put on the ballot until November 2006, and the ruling's supporters say that by then the voters will have seen that gay marriage does no harm. The decision is also likely to reverberate in the presidential election. President Bush was quick to criticize it, while most Democratic candidates expressed support for gay civil unions, which provide most of the benefits of marriage. Some opponents of gay marriage are talking about amending the federal Constitution to ban it. The Constitution has never been amended to take away minority rights, and now would be a poor time to start.

In recent years, support for gay rights has sharply increased. A newly released poll found that although most Americans oppose gay marriage, views vary a lot by age. Older people oppose it 4 to 1, while young respondents are equally divided. That strongly suggests that eventually the views expressed by the Massachusetts court will be widely held. And Americans will come to regard this week's decision as they now do Loving v. Virginia — as a statement of the obvious.


Toward More Perfect Unions

By WILLIAM B. RUBENSTEIN and R. BRADLEY SEARS

LOS ANGELES — On Tuesday, the highest court in Massachusetts issued a path-breaking decision, making the state the first to extend to gay couples not just many of the rights and benefits of marriage but the right to marry itself. In another sense, however, the decision is simply one more in a series of steps that have already provided legal rights to tens of thousands of same-sex couples throughout America.

According to data from the 2000 United States census, about one in five people who identified themselves as living with an "unmarried partner'` of the same sex now resides in a jurisdiction that grants some legal recognition to gay unions. While the census didn't count all same-sex couples — only those who identified themselves as such — it greatly advanced our knowledge about the prevalence and distribution of gay couples throughout the United States.

Counting Massachusetts, there are now four states that extend at least some of the rights of marriage to gay couples. Although their laws have no impact on federal rights or religious recognition of same-sex unions, these states have already begun the experiment of gay marriage.

The Hawaii legislature passed a law in 1997 that provides a range of marital benefits and responsibilities to same-sex couples. The Vermont legislature voted in 2000 to allow civil unions between gay couples. And in a series of laws passed in the last several years, California has extended benefits and responsibilities to same-sex couples nearly equivalent to those enjoyed by married couples.

All told, these four states have about 42 million residents, or about 15 percent of the United States population. They are also home to more than 113,000 gay couples, or 19 percent of the 600,000 or so same-sex couples the 2000 census identified in the United States. If the entire gay population is distributed throughout the country in the same way that gay couples are, that would mean that about one in five gay Americans now lives in a jurisdiction that provides some significant legal recognition for his or her relationship.

Opponents of same-sex marriage argue that recognition of such unions undermines the sanctity of marriage, harms children and demoralizes society. There is no evidence of any of this — or of any other harmful impact — in Hawaii, Vermont or California. On the contrary, studies have shown that parents' sexual orientation doesn't hurt their children. As the census shows, gay people are already parents to hundreds of thousands of children. Aren't those children better off if their family's relationships are protected by law?

Partnership is a legal reality for thousands of gay Americans, and a social reality for millions more. Thus the debate over gay marriage need not be distorted by doomsday claims that the future of America is at stake. In many ways that future is already here — and those fears have not come to pass.

William B. Rubenstein, professor of law, and R. Bradley Sears direct the Williams Project of Sexual Orientation Law at UCLA


Massachusetts Ruling on Gay Marriage Bolsters Hopes in N.J.

By LAURA MANSNERUS

TRENTON, Nov. 18 — Gay and lesbian couples who want to marry lost a round in New Jersey two weeks ago, but the Massachusetts Supreme Court's ruling that same-sex couples have the right to marry is expected to bolster the New Jersey case as it goes to a higher court.

In New Jersey, New York and Connecticut, the Massachusetts decision on Tuesday is giving new impetus to a political and legal effort that was foundering, gay rights advocates say.

The Massachusetts ruling "should have persuasive value in the New Jersey Supreme Court," said Frank Askin, the director of the Constitutional Litigation Clinic at the Rutgers Law School in Newark. The New Jersey court has given broader rights to gays than the federal courts have, affording more protections, for example, to gays in adoption and parental rights cases.

Still, the prospects for legislative action, in all three states in the New York region, remain doubtful. In New York, Joseph L. Bruno, the Senate majority leader, said Wednesday that legislation to extend the right to marry to gays and lesbians "is not on our agenda at all."

"I don't believe people of the same sex need or ought to be legalized in marriage," Senator Bruno said. Speaker Sheldon Silver, the leader of the Assembly's Democratic majority, has remained publicly neutral on the issue.

In New Jersey, the current legislature has only a few more voting sessions, and legislation recognizing domestic partnerships is stalled in committee.

Gov. James E. McGreevey said in a radio interview on Tuesday night that he opposed the state's sanctioning gay marriages. But Mr. McGreevey does support domestic partnership legislation, said his press secretary, Micah Rasmussen. "He wants to find ways for same-sex couples to enjoy the same benefits that other couples do," Mr. Rasmussen said.

Gov. John G. Rowland of Connecticut said after the Massachusetts ruling on Tuesday that he saw little support for such proposals in the legislature and would veto any that reached his desk.

The Massachusetts court's 4-to-3 decision was the first by a state supreme court to recognize a constitutional right of marriage for same-sex couples, although Vermont recognizes civil unions.

The New Jersey case, Lewis v. Harris, is already being closely watched around the nation. A Superior Court judge in Trenton, Linda Feinberg, dismissed the case on Nov. 5, finding that only the Legislature could establish a right to marry.

But civil liberties advocates said they thought the higher state courts would be more receptive.

And two of the plaintiffs, Cindy Meneghin and Maureen Kilian, partners since 1974, said they were encouraged that Judge Feinberg gave the case close attention. Since the Massachusetts court "acknowledged our humanity," Ms. Meneghin said, "I have equal confidence — more confidence — in New Jersey. We know New Jersey also sees this as a social justice issue, a human rights issue."

But John Tomicki, the executive director of the League of American Families, a conservative lobbying group, said the judge had issued "a clear decision that says the courts must not legislate from the bench."

"The New Jersey courts would be courting disaster for themselves if they moved in that direction," Mr. Tomicki added.

Mr. Tomicki also said that the bill recognizing domestic partnerships had run into difficulty in the Legislature because its language was too broad and that it did not have enough votes in either the Senate or the General Assembly to pass during the current lame-duck session.

But the Assembly sponsor, Loretta Weinberg of Bergen County, said she expected to bring the measure to a committee vote next month. "With a little good will, we'll get it passed in the lame duck," she said.

Copyright 2003 The New York Times Company

[Lxbsvksl]

Associated Press:

Mass. Court Strikes Down Gay-Marriage Ban

BOSTON - Massachusetts' highest court ruled Tuesday that same-sex couples are legally entitled to wed under the state constitution, but stopped short of allowing marriage licenses to be issued to the couples who challenged the law.

The Supreme Judicial Court's 4-3 ruling ordered the Legislature to come up with a solution within 180 days.

The ruling closely matches the 1999 Vermont Supreme Court decision, which led to its Legislature's approval in 2000 of civil unions that give couples many of the same benefits of marriage.

The decision is the latest in a series of victories for gay rights advocates, but fell short of what the seven couples who sued the state had hoped to receive: the right to marry their longtime companion.

The Massachusetts question will now return to the Legislature, which already is considering a constitutional amendment that would legally define a marriage as a union between one man and one woman. The state's powerful Speaker of the House, Tom Finneran of Boston, has endorsed this proposal.

A similar initiative, launched by citizens, was defeated by the Legislature last year on a procedural vote.

Copyright © 2003 The Associated Press.


Welcome back Rush Limbaugh.

[icerrelmCam]

March 4, 2004

Despite Charges, Mayor Pledges to Keep Marrying Gay Couples

By THOMAS CRAMPTON

NEW PALTZ, N.Y., March 3 - Shortly after being arraigned on misdemeanor charges on Wednesday for the same-sex marriage ceremonies he performed in this village last week, Mayor Jason West defiantly said he would continue solemnizing such marriages. Standing before Village Hall in the same parking lot where he married 25 gay couples on Friday, Mr. West, 26, called gay marriage the greatest civil rights issue of his generation.

"The issue before us today is one of civil rights, human rights," Mr. West told a crowd of supporters. "Marriage is the act of making public what is written in two people's hearts."

Earlier, as he walked from Village Hall to the courthouse, a crowd that the police estimated at more than 450 held aloft placards and chanted in support. "All great leaders have gone to jail,'' read one placard with a photograph of Nelson Mandela. Others simply said "Go West!" or "Keep Your Laws Off My Vows."

Escorted into the courtroom by his father and sister as a tuba played "We Shall Overcome," Mr. West said nothing during the hearing before Judge Jonathan D. Katz until he pleaded not guilty to 19 counts of marrying couples who did not have marriage licenses.

The court appearance at 6 p.m. came amid a whirlwind day in which the mayor juggled preparations for a regular Village Board meeting with national television appearances and a drive to Albany to testify before the State Legislature.

It also came on the same day that Attorney General Eliot Spitzer's office issued an opinion recommending that local officials not issue marriage licenses to gays or solemnize gay marriages until the courts settle the matter. Officials who do so could face prosecution, the opinion said, although there is no penalty in the law for those exchanging vows.

An outpouring of support from around the country has paralyzed the Village Hall telephone system, with a team of volunteers working to clear a backlog of voice messages. One man even wrote an e-mail message saying he had contributed $300 to clear the debt that Mr. West, a housepainter, needed to pay to receive his college diploma. The vast majority of telephone messages were in favor of the mayor's actions, the volunteers said, but some members of the Village Board worried that the gay marriage issue had eclipsed important public business. "We have urgent issues in this village that the mayor must not neglect," said Robert E. Hebel, a village trustee.


Law Dept. Backs Barring Marriage Licenses for Gays; Mayor Is Pressed to Take Stand

By JENNIFER STEINHAUER

The city's Law Department told the city clerk yesterday that gay couples should be denied marriage licenses, as City Council members and gay groups increased their pressure on Mayor Michael R. Bloomberg to take a personal position on same-sex marriages.

Mr. Bloomberg, a Republican who has already expressed his opposition to a constitutional amendment to ban gay marriage, has refused since he ran for mayor to say whether he supports the idea of same-sex marriages.

During a news conference yesterday in Brooklyn, in which he was peppered with questions about the issue, he again declined to take a stand. "My personal views, I've always said for three years, are not something that I am going to discuss," he said.

Shortly after the news conference, the city's corporation counsel, Michael A. Cardozo, issued a 10-page legal opinion, which concluded, "It is appropriate for the city clerk to continue the current practice of declining to provide marriage licenses or perform ceremonies for same-sex couples."

In refusing to reveal his personal opinion on whether gays ought to be allowed to marry, while firmly promising to uphold current laws, Mr. Bloomberg appears to be taking the calculated political risk that saying nothing will cost him nothing.

Many people close to the mayor say they suspect he supports gay marriage - as much as he supports any type of marriage, which is to say not much. "I'm sort of on record as not being in favor of marriage, period, for myself,'' he said last year.

Further, Mr. Bloomberg has a record of supporting equal rights for gays. His company, Bloomberg L.P., was among the first media companies to provide benefits for domestic partners, and it has sponsored benefits and conferences for gay groups.

As mayor, Mr. Bloomberg has signed a law that recognizes gay marriages and civil unions that were legally sanctioned in other jurisdictions, and a law adding transgender protection to the city's human rights law. He has played host to receptions at Gracie Mansion for the gay pride parade, and he marches in the gay St. Patrick's Day parade in Queens, although some gay groups have criticized him for marching in the main parade in Manhattan, which excludes openly gay marchers.

But Mr. Bloomberg may have concluded that supporters of gay marriage who feel strongly enough to take the issue to the polls will probably vote for a Democrat next year, anyway. What is more, an expression of even mild support for gay marriage may push its proponents to press the mayor further to break the law. At the same time, Mr. Bloomberg's conservative base, wobbly as it is, would almost certainly not appreciate his actively supporting same-sex weddings.

So he has instead taken a third route: opposing a constitutional amendment that President Bush supports, but even many other Republicans reject, and hoping Council Speaker Gifford Miller, a potential rival in 2005, and others will fail to make gay marriage a wedge issue.

"There is some downside risk," said Douglas Muzzio, a professor of public affairs at Baruch College. "But I don't think he can support gay marriage. That would really put him in conflict with a sitting president who is having his convention in New York City, not to mention his conservative electoral base."

Yesterday, several council members convened on the steps of City Hall in what they said was the first of many demonstrations to press the mayor to express his opinion on the issue. Councilwoman Christine Quinn, a Democrat representing Greenwich Village and Chelsea, who helped organized the protest, said, "We're demanding Michael Bloomberg come out of the closet, and tell us his position on this issue."

Today, dozens of gay and lesbian couples are expected to descend on the city clerk's office in Manhattan to demand marriage licenses in protest of the state law prohibiting their issue.

"I think that people that want to change the marriage laws should go to Albany; that's where laws are made," Mr. Bloomberg said yesterday. "For those that want to grandstand and recommend that we break the law, I think their time would be much better spent in trying to actually effect the change that they say they want rather than just go out there for political purposes."

He said he did not expect gay marriage to become a vexing election issue. "Maybe it will be important if you want to know who is going to enforce the law," he said. "Whatever the laws are on the books, whether I personally agree or disagree with them, I will enforce the laws."

Mr. Bloomberg sighed with relief when a final question was posed: How did the mayor like filming an episode of "Law and Order" yesterday? (He did.)

Copyright 2004 The New York Times Company

[Jxlacvio]

March 7, 2004

The Road to Gay Marriage

When Massachusetts' highest court ruled that gays have a right to marry, it opened a floodgate. From San Francisco to New Paltz, N.Y., thousands of gay couples have wed, and the movement shows no sign of slowing. There has been opposition, from the White House down, but support has come from across the nation and the political spectrum. Arnold Schwarzenegger, the Republican governor of the most populous state, said it would be "fine" with him if California allowed gay marriage. The student newspaper at Baylor, the world's largest Baptist university, ran a pro-gay-marriage editorial.

At an anti-gay-marriage meeting in Washington last week, Senator Bill Frist, the majority leader, warned that the "wildfire" of same-sex marriages will spread unless opponents mobilize. But even if they do, it is unlikely gay marriage can or will be halted. Opponents are pinning their hopes on a federal constitutional amendment, but even many Americans who are skittish about gay marriage do not want to enshrine intolerance as one of the nation's fundamental principles. The founders made it extremely hard to amend the Constitution, and it is unlikely this effort will succeed.

With allies in the White House and both houses of Congress, gay marriage opponents want the issue decided in Washington. But it appears we are embarking on 50 national conversations, not one. Following the lead of Vermont, which has civil unions, and Massachusetts, other states will weigh what rights to accord same-sex couples, and how to treat marriages and unions from other states. When the federal government does act, it is likely that, as with the Supreme Court's 1967 ruling on interracial marriage, it will be to lift up those states that failed to give all their citizens equal rights.

The idea of marriage between two people of the same sex is still very new, and for some unsettling, but we have been down this road before. This debate follows the same narrative arc as women's liberation, racial integration, disability rights and every other march of marginalized Americans into the mainstream. Same-sex marriage seems destined to have the same trajectory: from being too outlandish to be taken seriously, to being branded offensive and lawless, to eventual acceptance.

The Flood of Gay Marriages

The television images from San Francisco brought gay marriage into America's living rooms in a way no court decision could. Mayor Gavin Newsom's critics called his actions lawless, but the law was, and still is, murky. When California's attorney general asked the State Supreme Court to address same-sex marriage, it declined to stop the city from performing the ceremonies right away, or to invalidate those already performed. When New Paltz's mayor began performing same-sex marriages, New York law seemed similarly uncertain.

The rebellious mayors have so far acted honorably. Testing the law is a civil rights tradition: Jim Crow laws were undone by blacks who refused to obey them. Visible protests of questionable laws can, as the Rev. Dr. Martin Luther King Jr. wrote in "Letter From Birmingham Jail," "dramatize" an issue so "it can no longer be ignored." The mayors have succeeded in dramatizing the issue. But for them to defy court orders requires a far greater crisis than is present here. If courts direct officials not to perform gay marriages, they should not.

The Role of `Activist Judges'

Opponents of gay marriage have tried to place all of the blame for recent events on "activist judges." Senator John Cornyn, a Texas Republican, has called for a Congressional investigation of "judicial invalidation of traditional marriage laws." The judiciary, however, is only one part of a much larger story. Gay rights and gay marriages are being driven by an array of social forces and institutions. In California, the driving force has been an elected mayor, with the support of his constituents. In that case, it is gay marriage opponents who are asking judges to step in.

To the extent that the courts do have a leading role, it is perfectly natural. Gay marriage opponents like to portray judges as alien beings, but state court judges are an integral part of state government. They were elected, or appointed by someone who was. The founders created three equal branches, and a Constitution setting out broad principles, at both the national and state levels. Courts are supposed to give life to phrases like "equal protection" and "due process." Much of the nation's progress, from integration to religious freedom, has been won just this way.

The Emerging Legal Patchwork

As more courts and legislatures take up the issue, the rules for gay civil unions and marriages will most likely vary considerably across the nation. More states can be expected to follow Vermont's lead and allow civil unions that carry most of the rights of marriage. Others may allow gay marriage. This is hardly unusual, since states have historically made their own marriage and divorce rules. Currently, some people, such as first cousins, can marry in some states but not others.

The last great constitutional transformation of marriage in this country, the invalidation of laws against interracial marriage, moved slowly. In 1948, California became the first state in the nation to strike down its laws against interracial marriages. It was not until 1967 that the Supreme Court held Virginia's law unconstitutional, and created a rule that applied nationally.

The Battle for Interstate Recognition

Popular attention is now on wedding ceremonies for people of the same sex, but a no less important issue is whether states will recognize gay marriages and unions performed in other states. In 1996, Congress passed the Defense of Marriage Act, which says no state can be forced to recognize gay marriages. But the law has not been tested, and it should eventually be found to violate the constitutional requirement that states respect each other's legal acts. As a practical matter, the nation is too tightly bound today for people's marriages to dissolve, and child custody arrangements to change, merely because they move to another state.

Whether or not they have to recognize other states' civil unions and gay marriages, states clearly have the option to. Whether they will is likely to be the next important chapter of the gay marriage story. Couples who are married or who have civil unions will return to their home states, or move to new ones, and seek to have their status recognized. Attorney General Eliot Spitzer of New York, in an opinion last week, strongly suggested New York's law requires it to recognize gay marriages and civil unions entered into elsewhere. At least one New York court has already reached this conclusion.

Final Destination

The controversy over same-sex weddings has obscured the remarkable transformation in opinion over civil unions. Less than 20 years ago, the United States Supreme Court enthusiastically upheld a Georgia law making gay sex a crime. Last year, the court reversed itself, and a national consensus seems to be forming that gay couples have a right to, at the least, enter into civil unions that carry the same rights as marriage. Even President Bush, who has endorsed a constitutional amendment to prohibit gay marriage, has suggested he had no problem with states' recognizing civil unions.

Civil unions, with rights similar to marriage, are a major step, but ultimately only an interim one. As both sides in the debate agree, marriage is something more than a mere bundle of legal rights. Whatever else the state is handing out when it issues a marriage license, whatever approval or endorsement it is providing, will ultimately have to be made available to all Americans equally.

To the Virginia judge who ruled that Mildred Jeter, a black woman, and Richard Loving, a white man, could not marry, the reason was self-evident. "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents," he wrote. "And but for the interference with his arrangement there would be no cause for such marriages." Calling marriage one of the "basic civil rights of man," the Supreme Court ruled in 1967 that Virginia had to let interracial couples marry. Thirty-seven years from now, the reasons for opposing gay marriage will no doubt feel just as archaic, and the right to enter into it will be just as widely accepted.

Copyright 2004 The New York Times Company

[LottiFurmann]

Who cares?

Let them get married, I really do not give a squawk. If people who are not religeous are allowed to be married, then it is no longer a religeous act. AS SUCH, it should be allowed, by law.

Condoned is a different thing. If the Catholic Church still forbids it, let them.

I think it is about time that gay couples have to go through marriage tax penalties, divorce court and other such legal benefits that marriage allows.

Just stop showing them kissing each other all the time on the news, will ya! (I have my own hangups about that, but it should not prohibit them from doing something like this).

[Penisvergroesserung]

I don't care what anyone thinks of the Times editorial page. Stick to the topic.

[Sipewrio]

March 9, 2004

Mayors Asked to Face the Music, as in a Same-Sex Wedding March

By LISA W. FODERARO


Mayors in New York bring their own views to the same-sex marriage issue. From top, Carolyn K. Peterson of Ithaca, Jason West of New Paltz and John Shields of Nyack.

In the struggle over same-sex marriage in New York, small-town mayors suddenly emerged last week as the unlikely protagonists, becoming engines for social and political change. The actions of mayors in places like New Paltz and Nyack fed the debate and helped trigger a declaration by the attorney general that gays and lesbians were not permitted to wed under current state law.

While the overwhelming majority of the state's more than 600 mayors may have watched the tempest from the sidelines, the latest developments forced them to engage in their own soul-searching.

Even those with few gay constituents were considering the implications of their power to solemnize marriages in a quickly shifting landscape of sexual politics. That landscape expanded yesterday into New Jersey, where the deputy mayor of Asbury Park married a gay couple who had been issued a license by the town clerk's office.

In a sampling of opinion of mayors from a bedroom community in Westchester County to a hardscrabble Southern Tier city, most seemed relieved at the determination by Attorney General Eliot Spitzer, saying it took the onus off them to wade into a contentious issue. Only one, the mayor of Buffalo, said he had recently been asked to perform marriages for same-sex couples.

Like private citizens everywhere, their views ranged widely on whether gay marriage should be legalized in New York. And their willingness to wed same-sex couples if the law were to change did not always adhere to party stereotypes. The mayor of Oswego, a Republican, said he would most likely preside over such ceremonies, despite his support of a constitutional amendment banning gay marriage. The mayor of Elmira, a Democrat, said he would not.

None seemed interested in following the path of Jason West, the New Paltz mayor now facing misdemeanor charges for solemnizing the marriages of 25 same-sex couples in late February.

But even those elected officials who are supportive of same-sex unions differed sharply on Mr. West's defiance of the law. "They're pushing the envelope, and God bless them," said Jeremy Wilber, the supervisor of the arty, left-leaning town of Woodstock. He was referring to Mr. West and also the mayor of Nyack, John Shields, an openly gay retired schoolteacher who pledged to sue the state after being denied a marriage license on Thursday.

"Somebody had to sit at that counter in the late 1950's and 60's and push that envelope," added Mr. Wilber, who, as a supervisor in New York, the top elected official in a town, is allowed to perform weddings only with the Town Board's permission.

Anthony M. Masiello, the mayor of Buffalo, is a defender of same-sex unions. Yet he said he believed that Mr. West's acts of civil disobedience also had the potential to disrupt personal lives. "I'm not going to break any laws or create chaos by illegally marrying people," said Mr. Masiello, who has had a handful of inquiries from same-sex couples. "Why create a false sense of legality? That's counterproductive."

Still others, like Brian D. Monahan of Dobbs Ferry in Westchester, said constituents expected mayors to stay focused on the nuts and bolts of municipal life. "I don't think it's right to use an office that you've been elected to as a podium for your position on a national issue," he said. "I'm elected to deal with issues about parking and traffic and zoning, and I do that."

Last week in Ithaca, the mayor, Carolyn K. Peterson, a Democrat, announced that the city would accept marriage applications by same-sex couples and forward them to the State Department of Health. In doing so, she said, she would force the issue into the courts.

With the rapid pace of developments around the nation, it may not be long before mayors in New York must decide whether to say "I do" when approached by same-sex partners wishing to become spouses.

Some mayors, like Stephen M. Hughes, a Democrat of Elmira, a city with a population of 30,000, appear confident that their positions reflect those of their communities. Mr. Hughes is staunchly opposed to any form of gay union, be it a domestic partnership or marriage. He said he did not receive a single angry phone call after he explained his opposition to gay marriage on a local television station. "The response that I've received has been overwhelmingly supportive," he said.

If the law does change, Mr. Hughes said, he is considering his own brand of civil disobedience. Not only would he refuse to preside over any same-sex weddings, but he would also urge the city not to issue marriage licenses to gay partners. "It would be my position that we would fight that with every fiber of our being here locally," he said.

In some cases, a mayor's set of political beliefs would seem to contradict his approach as mayor. For example, John J. Gosek, a Republican and the mayor of Oswego, a city on Lake Ontario, said that while he supported President Bush's call for a constitutional ban, he would nonetheless marry same-sex couples if such unions became legal in New York.

"I've done more than 20 marriages in four years for strangers, members of the military," he said. "I certainly wouldn't turn them down if it was legal. It's part of the job."

Mr. Gosek said he doubted residents would object. "We're facing job-creation issues and budget problems," he said. "I really, truly don't think it's an issue here."

In Rochester, Mayor William A. Johnson Jr., a Democrat, said he felt conflicted after considering the issue. On one hand, he said he is an "old Southern Baptist," raised to believe that marriage is between a man and a woman. At the same time, Mr. Johnson, who is black, cannot help viewing the push for gay marriage through the lens of blacks' struggle for civil rights.

"It takes a while for your gut to catch up with your head, and that's what's happening for a lot of us," he said.

Perhaps no mayor in the state was feeling as torn as Daniel Stewart, the openly gay and Republican leader of Plattsburgh, a small city near the Canadian border. Mr. Stewart had advised President Bush on gay issues during his campaign for the White House, urging him not to "turn back the clock" on the progress made under President Bill Clinton.

A few years ago, Mayor Stewart advocated a form of civil union rather than traditional marriage for gay couples. But after presiding over the marriages of more than 40 heterosexual couples, he said he has changed his mind.

"Watching the smiles, the happiness, the excitement, you go home, look at your partner and say, 'We're not getting the same rights,' " he said. "I've had an ideological change."

Suzanne Moore contributed reporting for this article.


NEW PALTZ JOURNAL

Tackling the Tough Issues Head-On Is the Village Way

By THOMAS CRAMPTON

NEW PALTZ, N.Y., March 6 - The first legal challenge to same-sex marriage in New York took more than a 26-year-old mayor willing to risk criminal prosecution. It took a village.

When Jason West, the mayor of the Village of New Paltz, solemnized 25 same-sex marriages last month, he set off a chain of events that put same-sex marriage on the public agenda from Albany to Ithaca to New York City. He was, however, simply acting in the tradition of a community long committed to taking a critical stance on a number of issues.

"The mayor may have started this rolling, but you can see this is now a villagewide issue with a cast of hundreds," said Charles I. Clement, co-owner of the pink Victorian bed-and-breakfast that now serves as headquarters for the same-sex marriage initiative. "The level of energy around this issue here is a total buzz."

Much of that energy and enthusiasm has come from politically active university students. More than one-third of the 6,000 village residents are students at the State University of New York campus here.

Even long-term residents, some critical of Mr. West on the gay marriage issue, say it is only right that the small village make big statements.

"It is occasionally necessary for our Village Board to address issues beyond our borders," said Thomas E. Nyquist, the mayor of 16 years who was unseated by Mr. West in the village elections last May. "Taking a political stand is not something new to this village."

The Village Board, under the leadership of Mr. Nyquist, protested apartheid-era South Africa by withdrawing funds from Barclays Bank in the early 1990's, and early last year voted unanimously to condemn the Patriot Act as impinging on civil liberties.

"I do not criticize Jason West for taking a stance in favor of same-sex marriage," Mr. Nyquist said. "I criticize Jason West for breaking the law and acting without the full knowledge and backing of the Village Board."

Mr. Nyquist is not the only critic. On Friday, one resident successfully petitioned for an injunction to stop the mayor from performing any more same-sex marriages for a month.

And other residents criticize Mr. West for unfairly burdening local taxpayers. In addition to the overtime parking management at marriage-related events, a phalanx of more than a dozen police officers worked overtime to escort Mr. West into a crowd of hundreds of supporters after he was arraigned at the local courthouse for solemnizing couples without marriage licenses.

To his supporters, however, the mayor exercised his constitutional duty to protect the equal rights of same-sex couples.

"As far as I am concerned, he did not break the law; he just interpreted it differently from the attorney general," said James V. Fallarino, a student volunteer who helped organize more marriages scheduled for March 13. "This community has a history of activism, so the level of support for the mayor does not surprise me at all."

That enthusiasm has volunteers from the village and the university speaking of their cause in terms that echo the civil rights movement. And, like those earlier advocates, they are skipping meals and rarely sleeping more than a few hours each night.

The first days after the marriages had volunteers flooding the Village Hall to offer assistance. Emptying the mayor's voice-mail message box proved a perpetual task as news media requests, words of support and occasional criticism flooded the recording device.

"We finally reduced the number of messages from 100 down to almost 10," said Brittany M. Turner, who hardly left the Village Hall for four days running. "The problem came when the person who knows how to download the messages onto a CD also volunteered to drive the mayor to testify in Albany."

At times, the enthusiasm of volunteers in New Paltz led to moments verging on farce.

The mayor's driver to Albany also used his van to carry Mr. West home past a crowd of waiting journalists - a journey of several hundred yards down a village street.

Members of the 200-strong army of volunteers occasionally found themselves ill-suited to fulfilling assigned tasks.

"I spent the last two days trying to figure out who - and why - signed me up to run the Web site," Mr. Fallarino told a meeting of a dozen organizers shortly before midnight on Thursday. "I can do many things, but I know nothing about the Web. Please let me out."

Another volunteer at the same meeting urged a time change the next day because of conflicting planned activities: "I can't start until after 1 p.m. tomorrow because I am supposed to be making a banner about mercury poisoning."

In addition to the students, businesses in New Paltz have pitched in to help the cause. The mayor and his delegation ate free when they met to discuss tactics at the Gilded Otter, a microbrewery, and Yanni's, a Greek restaurant.

When Mr. West decided to refrain from solemnizing marriages and open a dialogue with Eliot Spitzer, the state's attorney general - who said what the mayor had been doing was illegal - volunteers organizing further same-sex marriages quickly moved out of the Village Hall and into LeFevre House, the bed-and-breakfast owned by Mr. Clement and his male partner.

Other donations from businesses have included scented glitter candles for each newlywed couple from Old Flame, a shop on Main Street, and wedding bouquets donated by a florist.

"This cause lets you see the sort of people who live in New Paltz," said Jonathan M. Wright, who constantly warned visiting journalists that buying coffee at Starbucks would hurt local venues. "My level of commitment can be seen in my considering getting a mobile phone after swearing them off years ago."


Asbury Park Deputy Mayor Officiates at a Gay Marriage

By ROBERT HANLEY and LAURA MANSNERUS

The movement for same-sex marriages reached New Jersey yesterday when a gay couple who had been issued a marriage license by the city clerk's office were married in Asbury Park by the deputy mayor.

Though city officials said that authorizing the marriage license was permitted by New Jersey law, state officials quickly disagreed, and the state's attorney general said he would seek an injunction this week to bar such actions.

"We think that what the official in Asbury Park is doing is issuing invalid documents," Attorney General Peter C. Harvey said, adding that the license was "a worthless piece of paper."

Mayors and clergy members in New York have conducted marriage ceremonies for dozens of same-sex couples in the past two weeks, but all took place without the customary marriage licenses, and will probably face court challenges.

In Asbury Park, however, the city's deputy clerk, Dawn Tomek, said yesterday that she had studied state law before she issued the license and believed that no stature was violated. New Jersey's law, she said, does not specifically ban or permit same-sex marriages.

"I went by the Constitutions of the United States and of New Jersey, both of which guarantee equal rights," Ms. Tomek said after she joined a celebration for the couple at a local pub.

During the day, she said, she issued marriage licenses to six other couples, all male.

Lawyers said it was not clear whether the deputy mayor in Asbury Park would face prosecution for performing a marriage without a valid license. But Mr. Harvey said that his office did not intend to prosecute anyone.

The possible threat of government intervention did not seem to dampen the moment for the two men, who said they had been companions for 15 years.

"The city was kind enough to let us do it, and we're very happy," said Louis Navarrete, 42, the owner of an antiques shop in Asbury Park, while celebrating with his partner, Ric Best, 43, and a few friends in a pub off Main Street. "From my understanding, it's all legal and everything's cool. If something's unjust, change it. And the only way to change things is to change them."

Mr. Navarrete said that he and Mr. Best had obtained a marriage license in midafternoon on Friday from Ms. Tomek, had waited the required 72 hours for the license to become valid and returned to City Hall yesterday afternoon. Asbury Park's deputy mayor, James Bruno, performed the ceremony about 3:30 p.m. in the City Council chambers.

"It felt like any other wedding I've done," Mr. Bruno, a divorced father of two, said at the celebration at the pub. "It was a very cool thing - the atmosphere, the friends. I have gay neighbors and gay friends. They're like anybody else. They cut their grass. They walk the dog. They pay their taxes."

Of possible legal challenges the two men may face, Mr. Bruno said, "We'll have to wait and see and let the chips fall where they may."

New Jersey's marriage law is now being challenged in court, in a case filed by seven same-sex couples who were denied licenses almost two years ago. "New Jersey law does not allow for the issuance of licenses to same-sex couples," said their lawyer, David Buckel of Lambda Legal, a Manhattan-based advocacy group, noting that the statutes used the words "husband and wife" and "bride and groom."

"We agreed," Mr. Buckel said. "The attorney general agreed. Everybody agreed."

Judge Linda Feinberg of Superior Court in Trenton held in a decision on Nov. 5 that the issue must be left to the Legislature. But the case is now before the Appellate Division, leaving open the possibility that New Jersey's higher courts may find a right to marry under the State Constitution, as the Massachusetts Supreme Court did several months ago.

Micah Rasmussen, a spokesman for Gov. James E. McGreevey, said the governor had asked Attorney General Harvey "to determine if this marriage license was issued legally under New Jersey law and, if not, to take appropriate action." The governor has not supported gay marriage, although he backed the state's new domestic partnership law, which Mr. Rasmussen said was the strongest in the nation.

Decades ago, Asbury Park, a community of about 17,000 near the northern end of the Jersey Shore, was a popular resort. Grand hotels and houses once graced its wide boardwalk, but as they deteriorated over time they eventually became dreary boarding homes for the mentally ill in the 1970's. In recent years, Asbury Park has entertained several developers' plans for ambitious rejuvenations of its oceanfront. But the projects have floundered financially, and restoration has been slow.

Several years ago, Deputy Mayor Bruno said, gays began moving into Asbury Park. He said the community now numbered about 800 and was growing. He said he officiated at yesterday's ceremony as a service to "my constituents." He added that Asbury Park's mayor, Kevin Sanders, had chosen not to conduct the ceremony and authorized him to do so.

Mr. Navarrete said that he and Mr. Best, an artist, moved to Asbury Park in 2001. In recent months, he said, he went often to City Hall and asked Ms. Tomek, jokingly, if she would issue him and Mr. Best a marriage license. Last week, after the spate of gay marriages in San Francisco and New Paltz, N.Y., he renewed his request. This time, he said, Ms. Tomek said she would study the issue, and, "Friday, she said yes."

Karen DeMasters contributed reporting for this article from Asbury Park, N.J.

Copyright 2004 The New York Times Company

[Mugflefusysef]

February 26, 2004

Bloomberg Explains Stand on Gay Marriage Ban

By JENNIFER STEINHAUER

Mayor Michael R. Bloomberg, pelted with questions about the gay marriage issue, declined yesterday to say whether or not he supports the idea of such unions. But he reiterated his belief that there was no need for the constitutional amendment proposed by President Bush, saying the matter should be left up to states.

"I believe it is up to the states, not to the federal government," Mr. Bloomberg said at a news conference in the Bronx. "The president seems to call for a constitutional amendment. I don't think we need a constitutional amendment."

The mayor declined to respond to further questions about his beliefs on gay marriage.

On Tuesday, President Bush said he would like an amendment to the Constitution that would ban gay marriage, saying the union of a man and a woman is "the most fundamental institution of civilization.'' Mr. Bloomberg's position on the amendment is his first major departure from the president on a policy issue.

In 2002, the mayor signed Local Law 24, which recognizes civil unions legally entered into in other jurisdictions. But because marriages between people of the same sex are not permitted under New York State law, the mayor will not ask the city clerk to issue licenses to gay couples, said Mr. Bloomberg's press secretary, Edward Skyler.

Mr. Bloomberg has placed himself in an interesting position with gay voters. By going against the president, he endears himself to those who oppose a constitutional amendment. But many gay voters may wish for him to express stronger support for the states to permit gay marriages.

"It's wonderful news that the mayor has publicly spoken out against this amendment," said Alan Van Capelle, the executive director of the Empire State Pride Agenda, one of the largest gay organizations in the country. "We think it's important that New Yorkers hear from their mayor on this issue."

Copyright 2004 The New York Times Company

[Dapnoinaacale]

Yeesh, and now on the AOL boards right-wingers are complimenting the City for "turning away the gays." Cripes...Bloomberg upholds the law to avoid controversy and suddenly we go from being an American Teheran to Houston on the Hudson.

[esanamaserrn]

Is that Yews-ton or House-ton, pardner?

[ViagraFeller]

Evidently, this thread took a direction after 02:30 PM which led to several posts (2 of mine included) being deleted.
I would appreciate an explanation.

[SHaEFU0i]

March 17, 2004

NEWS ANALYSIS

Bans on Interracial Unions Offer Perspective on Gay Ones

By ADAM LIPTAK

Without a constitutional amendment banning gay marriages, President Bush warned on Feb. 24, there is a grave risk that "every state would be forced to recognize any relationship that judges in Boston or officials in San Francisco choose to call a marriage."

The president invoked the Constitution's "full faith and credit" clause, which requires states to honor court judgments from other states, as the basis for his alarm.

But legal scholars say that an examination of the last wrenching national debate over the definition of marriage — when, only 50 years ago, a majority of states banned interracial marriages — demonstrates that the president misunderstood the legal terrain.

"No state has ever been required by the full faith and credit clause to recognize any marriage they didn't want to," said Andrew Koppelman, a law professor at Northwestern University and the author of "The Gay Rights Question in Contemporary American Law."

Indeed, until the Supreme Court struck down all laws banning interracial marriage in 1967, the nation lived with a patchwork of laws on the question. Those states that found interracial marriages offensive to their public policies were not required to recognize such marriages performed elsewhere, though sometimes they did, but as a matter of choice rather than constitutional compulsion. That experience is instructive, legal scholars say, about what is likely to happen when Massachusetts starts performing gay marriages in May.

Attorney General Eliot L. Spitzer of New York has provided an example of what the analogous patchwork in the gay marriage context might look like. Mr. Spitzer, in an informal advisory opinion issued on March 3, said he expected New York to recognize gay marriages from other states because they are not "abhorrent to New York's public policy." Thirty-eight other states, on the other hand, in enacting Defense of Marriage Acts, have expressed the view that such marriages do offend their public policies.

Mr. Spitzer based his assessment on state law and not the federal Constitution, and he based his description of New York's public policy on a single decision of a Manhattan trial court last year that is still under appeal.

There is a second reason same-sex marriages in Massachusetts are likely to have a more limited effect than the president suggested. An obscure 1913 law in that state makes void all marriages performed there where the couple is not eligible to be married in their home state. That law, too, was born in part from an effort to prohibit interracial marriages.

Last week, the California Supreme Court stopped the gay marriages being performed in the second place cited by the president. The court will hear arguments on the question later this year.

In 1967, when the United States Supreme Court struck down all bans on interracial marriage, it acted on the most fundamental constitutional grounds, saying that the laws violated both due process and equal protection.

No one believes that the court is likely to say anything like that about gay unions anytime soon.

What is notable about the 1967 decision for the gay marriage debate, then, is that it did not mention the full faith and credit clause. Although the case involved a Virginia couple prosecuted for violating that state's ban on interracial marriage by visiting the District of Columbia, which allowed such marriages, the Supreme Court did not suggest that Virginia was obligated to recognize the marriage.

To the contrary, the decision affirmed that marriages are generally a matter to be left to the individual states. That is consistent with hundreds of decisions over centuries, based on state rather than federal law, that allowed states to decline to recognize marriages that violated their own strong public policies.

Indeed, in the context of interracial marriages, courts in states that banned such unions routinely declined to recognize those performed in states where they were legal.

But the decisions were not uniform. Indeed, the way courts treated interracial marriages illuminates how gay marriages are likely to be treated.

The decisions fall into broad categories, generally turning on whether the couple in question intended to evade their home state's laws. That principle, legal experts say, is likely to govern many disputes about gay marriages performed in Massachusetts.

"The Jim Crow judges were horrifyingly wrong about many things," Professor Koppelman wrote in the Texas Law Review in 1998, "but they did understand the problem of moral pluralism in a federal system, and we can learn something important from the solutions they devised."

Opposition to interracial marriage in the last century was in many ways more vehement than opposition to gay marriage today. It was, for instance, a criminal offense in many states. None of the 38 states that expressly forbid gay marriage by statute today go that far.

Yet in cases where evasion was not at issue, courts were often surprisingly receptive to the recognition of interracial marriages.

In some cases, an interracial couple who were legally married in their home state moved, after years of living together, to a state where such marriages were banned. Court decisions about whether to recognize such marriages were about evenly divided.

In other cases, such a couple never left the state where they were legally married but sought to use the courts in a state where their marriage was theoretically invalid in an injury, property or inheritance case where something turned on their marital status. In such cases, the courts very often recognized the marriage.

William Rubenstein, a law professor at the University of California, Los Angeles, said a theme ran through the cases.

"The less you look like you're playing games," Professor Rubenstein said, "the more likely a court is to recognize the relationship."

The entire discussion may be academic in the case of Massachusetts, given its 1913 law.

Linda Hutchenrider, president of the Massachusetts Town Clerks Association, said her group was awaiting legal guidance on the meaning of the law and how to enforce it.

"We're not the marriage police," Ms. Hutchenrider said.

But the law would seem, she continued, to void marriages of out-of state gay couples. "It really seems to fit," she said.

She added that Mr. Spitzer seemed to have overlooked the Massachusetts law, which appears not to allow New York couples to be married there in the first place.

"It becomes a chicken and the egg thing," Ms. Hutchenrider said.

Matt Coles, director of the American Civil Liberty Union's Lesbian, Gay Rights and AIDS Project, said he was reluctant to compare the gay rights movement to the civil rights movement.

"One struggle has never been like another, in overriding ways," Mr. Coles said. "That said, interracial marriage draws a more powerful analogy than any other."



Copyright 2004 The New York Times Company

[lLianneForbess]

February 5, 2004

Massachusetts Gives New Push to Gay Marriage in Strong Ruling

By PAM BELLUCK

BOSTON, Feb. 4 — Massachusetts' highest court removed the state's last barrier to gay marriage on Wednesday, ruling that nothing short of full-fledged marriage would comply with the court's earlier ruling in November, and that civil unions would not pass muster.

The ruling means that starting on May 17 same-sex couples can get married in Massachusetts, making it the only state to permit gay marriage. Beyond that, the finding is certain to inflame a divisive debate in state legislatures nationwide and in this year's presidential race.

"The dissimilitude between the terms `civil marriage' and `civil union' is not innocuous," four of seven justices on the state's Supreme Judicial Court found. "It is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status."

The ruling came in response to a request by the Massachusetts Senate asking the court whether a bill giving same-sex couples the same rights and benefits of marriage, but calling their relationships civil unions, would comply with its November decision saying that gays had a constitutional right to marry.

The court said that such a bill "would have the effect of maintaining and fostering a stigma of exclusion that the Constitution prohibits. It would deny to same-sex `spouses' only a status that is specially recognized in society and has significant social and other advantages."

"The Massachusetts Constitution," the court said, "does not permit such invidious discrimination, no matter how well intentioned."

The ruling will probably give new impetus to a push by many conservatives for a constitutional amendment that would limit marriage to unions joining a man and a woman.

In a statement Wednesday, President Bush condemned the Massachusetts court's latest ruling but stopped short of explicitly endorsing a constitutional amendment. "Marriage is a sacred institution between a man and a woman," he said. "If activist judges insist on redefining marriage by court order, the only alternative will be the constitutional process. We must do what is legally necessary to defend the sanctity of marriage."

Wednesday's decision caused an uproar in the Massachusetts Legislature, where lawmakers are scheduled on Wednesday to vote on an amendment to the state's Constitution banning same-sex marriage. Many lawmakers in the largely Democratic, largely Roman Catholic body had supported civil unions but not gay marriage and were hoping the court would not force them to make an all-or-nothing decision.

At least one influential legislator, State Representative Eugene O'Flaherty, the chairman of the House Judiciary committee and a backer of civil unions, said he was almost certain to vote for the amendment now.

An amendment could not take effect until November 2006, because it would need to win passage in two consecutive legislative sessions and be approved in a voter referendum.

Nationally, the decision vaults the issue to a more prominent role in the presidential election, especially since the Democratic front-runner, Senator John Kerry, who supports civil unions and opposes same-sex marriage, is from Massachusetts.

It will also undoubtedly unleash activity in legislatures and courtrooms nationwide, as activists on each side of the issue seek to use the Massachusetts ruling to influence policy elsewhere.

Already, 38 states have laws defining marriage as a heterosexual institution, and 16 states are considering constitutional amendments that would ban same-sex marriages. Congress also passed a law in 1996, the Defense of Marriage Act, prohibiting federal recognition of gay marriages and relieving states of any obligation to recognize gay marriages from states where they might be legal.

As recently as Tuesday, fueled in part by the November court decision in Massachusetts — like Wednesday's, a 4-3 ruling — the Ohio Legislature approved a strict ban on same-sex unions, barring state agencies from giving benefits to both gay and heterosexual domestic partners.

Opponents of gay marriage vowed on Wednesday to increase their efforts further and push for an amendment to the federal Constitution.

"This case will determine the future of marriage throughout America," said Tony Perkins, president of the Family Research Council. "If same-sex couples `marry' in Massachusetts and move to other states, the Defense of Marriage Act will be left vulnerable to the same federal courts that have banned the Pledge of Allegiance and sanctioned partial-birth abortion."

Sandy Rios, president of Concerned Women for America, said "if the court is allowed to get away with these decisions with no accountability, it is the beginning of the crumbling of our democracy."

Proponents of same-sex marriages said they were hopeful that the Massachusetts ruling might lend legitimacy to such unions in other states. "We are really facing this onslaught of religious- and political-right attacks across the country, but we are hoping that fair-minded people will reject it and will reject this culture war," said Matt Foreman, executive director of the National Gay and Lesbian Task Force.

Legal experts said there would inevitably be legal challenges filed by same-sex couples who marry in Massachusetts and move to other states.

"There's going to be a fist fight in Ohio," said Arthur Miller, a Harvard law professor. "There'll be a situation, for example, in which a spouse of a couple married in Massachusetts but living in Ohio tries to inherit and make claims, and that will end up in the U.S. Supreme Court."

Same-sex couples in Massachusetts and other states began marriage plans, but several said they were proceeding cautiously. "When I see those first couples coming from City Hall, I'll say, `it's real, but it's really real,' " said Bev Kunze, 48, a telecommunications manager in Boston who plans to marry her partner of 11 years, Kathleen McCabe, 52, a city planner.

Fred Kuhr, 36, the editor of In Newsweekly, a newspaper for gay men and lesbians, plans to marry his partner, Kip Roberson, 39, director of the Sharon, Mass., public library. But he said, "There are still roadblocks in the way, and even though this is a great day in terms of this issue, I'm not jumping up and down and walking down the aisle just yet."

The prospect of same-sex marriage in Massachusetts raises practical questions: What will life be like for couples who marry here and move back to a state that outlaws same-sex marriages? Or for couples in Massachusetts who would be entitled to state marriage benefits but not federal benefits, like the right to file taxes jointly or qualify for Social Security payments?

Indeed, in a dissenting opinion on Wednesday, Justice Martha B. Sosman listed some discrepancies. For example, she noted, same-sex couples would be ineligible for federal health care or nursing home benefits, and couples living in other states would not have the right to get divorced there.

The majority opinion, however, said, "We would do a grave disservice to every Massachusetts resident, and to our constitutional duty to interpret the law, to conclude that the strong protection of individual rights guaranteed by the Massachusetts Constitution should not be available to their fullest extent in the Commonwealth because those rights may not be acknowledged elsewhere."

Elizabeth Bartholet, a family-law professor at Harvard, said that even though other states might officially disavow gay marriages, a Massachusetts marriage certificate might informally encourage recognition of same-sex unions in areas like employment, health care and education.

"It doesn't mean everyone in that state subscribes to that," she said. "It may, for example, make a real difference in terms of all kinds of employment benefits that may be available to spouses. If you're living in Massachusetts, it's going to be hard for your Texas-based employer to deny you marital benefits."

Representative O'Flaherty said he would try to determine if the Legislature might still be able to draw up a new marriage law that could provide the court with a "rational basis why marriage should be a institution between a man and a woman."

But even the state attorney general, Thomas Reilly, whose office argued against same-sex marriage in the original case, said Wednesday's ruling made clear "same-sex couples have the constitutional right to marry under Massachusetts law."

The court seemed to offer one alternative. In a footnote, the decision found that same-sex unions would not have to be called marriages if "the Legislature were to jettison the term `marriage' altogether."

Some lawmakers suggested they would pass the amendment to give the public a say on it in a referendum. Gov. Mitt Romney agreed, saying "the people of Massachusetts should not be excluded from a decision as fundamental to our society as the definition of marriage."

Should an amendment pass, Mr. O'Flaherty said, legislators might ask the court to issue a stay until the amendment process was complete — a request legal experts thought the court would be unlikely to grant. Just the same, he and others asked, what would happen to same-sex marriages if, two and a half years from now, the state wound up making such marriages illegal?

Katie Zezima contributed reporting for this article.

Copyright 2004 The New York Times Company

[GroosteFoessy]

March 2, 2004

From Ithaca, a New Challenge for New York State on the Issue of Same-Sex Weddings

By THOMAS CRAMPTON and MICHELLE YORK

The national debate on same-sex marriage spread to another college town in upstate New York on Monday, with city officials in Ithaca challenging the state Health Department to refuse marriage applications submitted by gay couples.

Carolyn K. Peterson, the mayor of Ithaca, told a packed news conference at City Hall that the clerk would accept marriage applications by same-sex couples and forward them to the state's Department of Health for a ruling on whether they could be granted. In doing so, she said, she would force the issue into the courts.

"I firmly believe that same-sex partners should have equal protection as other married couples do,'' said Ms. Peterson, a Democrat who took office in January.

The issue of same-sex marriage came to New York on Friday when the mayor of the village of New Paltz solemnized the weddings of 25 same-sex couples.

None of the couples had obtained a marriage license, which may open the mayor, Jason West, to prosecution. State law says it is a misdemeanor crime to perform a marriage for couples who do not have a license. It is far less clear on whether those marriages are legal.

Yesterday, Donald A. Williams, the District Attorney of Ulster County, said he would likely act against Mr. West.

"I cannot ignore charges that an elected official may have broken the law,'' Mr. Williams said, "We will carefully study the legal and factual issues before proceeding, but we have so far found no impediment to prosecution.''

If convicted, Mr. Williams said, the maximum penalty would be a $500 fine or one year in jail.

The marriage process in New York requires couples to obtain a license before undergoing a solemnization ceremony. Ms. Peterson said she had considered following in Mr. West's steps and solemnizing marriages for couples who had not gotten a license, but decided against it. "I can perform a ceremony without a license, but, though very meaningful to the couples, it would just be symbolic,'' she said.

Instead, the Ithaca officials intend to forward unsigned marriage applications to the state Health Department as a way to force a decision. Should the Health Department decline the license applications, Ms. Peterson said, the city would coordinate with students from Cornell University to give legal advice for couples to file suit. Ithaca is home to Cornell and Ithaca College.

By mid-afternoon, five same-sex couples in Ithaca had requested applications for licenses.

"We were prepared to get married today,'' said Margot D. Chiuten, 28, a landscape architect who intends to marry Shawna M. Black, 27.

The couple said they were a bit disappointed they couldn't marry on Monday, but were encouraged that the city and its legal department would be on their side. "We're trying to have a child,'' Ms. Black said. "And we don't want it to be born out of wedlock."

While the residents of the village of New Paltz remained divided over the issue of gay marriage, the surrounding jurisdiction, the town of New Paltz, entered the fray on Monday.

"I am fully in support of gay marriage, as a citizen,'' said Don Wilen, supervisor of the town of New Paltz. "I will see what I can do as an elected official, but I need to first study the impact on our community.''

However, the town's clerk, the only elected official empowered to issue marriage licenses in both the town and village of New Paltz, said she would not change her position.

"I will only issue a license to a man and woman,'' said Marian A. Cappallino, the clerk. "Until the law changes, I will keep this policy in place.''

Within the village of New Paltz, more than 120 people, mostly students from the local State University of New York campus, attended a meeting at Village Hall Monday night to provide logistical support for the marriages. Meanwhile, the mayor's opponents - mainly long-term village residents - sought ways to prevent further marriages.

"We have people looking at ways to stop the mayor doing these marriages,'' said Thomas E. Nyquist, a former mayor of New Paltz who served for 16 years until he was unseated by Mr. West last May. "Jason needs to pay more attention to being mayor.''

For his part, Mr. West, 26, on Monday said most of the village was behind his stance on same-sex marriage, adding that a group from Kansas planning a protest in two weeks will find little local support.

"Anybody coming into this community will find no support for protesting against same-sex marriage,'' Mr. West said. "It is appalling for people to come to our village to spread hate.''

The Rev. Fred Phelps of the Westboro Baptist Church in Topeka, Kan., said on Monday that more than a dozen supporters would visit New York on March 14 and 15.

"We will picket the Village Hall, we will picket the university and we will picket all five churches in the village after their Sunday services,'' Mr. Phelps said in a telephone interview. "Same-sex marriage is the ultimate insult to God Almighty, and somebody has got to picket these heretics.''


While Gays Rush to the Altar, Albany Takes It Slow

By MARC SANTORA

ALBANY, March 1 - When the little-known mayor of the village of New Paltz decided to start performing same-sex wedding ceremonies last week, state leaders were rocked back on their heels, struggling not only with a tangle of legal questions, but also with a situation so fraught with political peril that many are trying to simply stay out of the way.

On Monday, the mayor of Ithaca joined the list of those who have decided to press the issue by asking the state's Health Department if the city clerk can issue marriage licenses to gay and lesbian couples and offering legal help to the couples in the event the state says no.

Even though New York has a long history of tending toward the liberal on cultural issues, some political analysts see gay marriage as one of those cases where it is hard for mainstream politicians with a wide constituency to come out looking good. Adding to the confusion is the suddenness with which this has erupted in New York, giving the elected officials little opportunity to protect themselves against the political consequences.

"It's a kind of damned-if-you-do and damned-if-you-don't situation for most elected officials in the state," said Richard Schrader, a political consultant who worked in the Dinkins administration.

While many politicians have been able to sidestep the issue so far, saying it is for the courts to decide, Attorney General Eliot Spitzer has no such luxury.

When the Pataki administration asked Mr. Spitzer to seek an injunction to stop the marriages in New Paltz, Mr. Spitzer declined.

On Monday, the Senate majority leader, Joseph L. Bruno, a Republican from Rensselaer County, said Mr. Spitzer's decision "makes a mockery out of the whole process of governing."

"I believe the law is clear and it prohibits this because the laws of New York State, to my knowledge, define a marriage as between a man and a woman," Mr. Bruno said on WROW-AM radio. "I think the attorney general is wrong."

Mr. Spitzer, while not responding to Mr. Bruno's comments, maintained his legalistic position that he has not sought an injunction because "irreparable harm" was not being done. However, Mr. Spitzer was also quick to emphasize once again that, personally, he supports gay marriage.

Since Mr. Spitzer is considering running for governor in 2006, possibly against Mr. Pataki, his declaration of personal beliefs was revealing because as the attorney for the state he may soon be placed in an awkward position of defending the state Health Department's refusal to issue marriage licenses.

"It is very conceivable that they are running against each other for governor, so it is the beginning of the governor's race," said Joseph Mercurio, a political consultant.

Mr. Spitzer's aides say his predicament is similar to that of Gov. Mario Cuomo, who upheld the laws allowing abortion despite personal reservations. Mr. Spitzer has to separate his legal duties as attorney general from the political implications of his action, his aides said, though they noted he is not unmindful of the political impact his actions may have.

For his part, Mr. Spitzer said, "We are looking at the issue devoid of political pulls one way or the other."

There has been a great deal of pressure on Mr. Spitzer to express a legal opinion on the subject, but he said he would not be "rushed." Still, his top lawyers were moving rapidly to craft a position, aides said. Mr. Spitzer's top staff, including his counsel, David Nocenti and his first deputy, Michele Hirshman, have been working around the clock to write an opinion they hope to release in coming days.

And in a reflection of the delicacy of the matter, aides say the opinion, which has no legal weight but could help frame the debate, will be carefully nuanced.

"In the end, people are still going to be able to see things that they want to see," said a senior aide.

There are three critical questions the attorney general must answer. While the details are yet to be worked out, an aide, speaking on the condition of anonymity, outlined the current thinking.

First, is the mayor of New Paltz guilty of committing a crime by performing marriage ceremonies for couples that have no licenses?

On this score, the aide said, the law and historical evidence are relatively clear that it is a misdemeanor. Prosecution of the crime rests with the Ulster County district attorney, who indicated on Monday that he would pursue it.

Second, who is eligible for marriage licenses?

While historically it has only been heterosexual partners that have been granted that privilege, the aide said Mr. Spitzer would also likely go into detail about how the law can be read as gender-neutral.

Finally, are the marriages that were performed in New Paltz valid?

This is the trickiest question, the aide said, and one that they are still poring through historical evidence to try and figure out.

While Mr. Spitzer appeared to be trying to ride the tiger, the governor has tried to keep his distance from the issue.

In brief public remarks on Friday and Monday, he said he believes New York law is clear on the idea that marriage is between a man and a woman. As far as dealing with the unfolding events, he repeated on Monday his response on Friday: "Health Department attorneys are in consultation with the attorney general, and the attorney general is looking to see what legal actions he believes we should take."

Mr. Pataki has disagreed with President Bush that a constitutional amendment is needed to define marriage as between a man and a woman, saying it is an issue for states to address.

But now that the subject has arrived in New York, Mr. Pataki is not the only politician who is relatively quiet.

The Assembly speaker, Sheldon Silver, said on Monday he has not discussed the issue with members of his Democratic conference, and therefore has no position on the issue. Mr. Silver is in some ways in the trickiest position. While there have been many Democrats around the state who have been vocal in their calls for gay marriage, Mr. Silver represents many constituents on the Lower East Side of Manhattan whose religion makes it hard for them to accept such marriages.

Thomas K. Duane, a Democrat from Manhattan and the only openly gay member of the State Senate, said many lawmakers were surprised by the speed with which this issue had arisen. However, he was hopeful that the state's top leaders would soon begin speaking out on the topic more openly.

"I think that they are trying to build up their courage," he said.

Copyright 2004 The New York Times Company

[karaburatoreror]

February 21, 2004

Has the Time Arrived to Allow Gay Marriage? (7 Letters)

To the Editor:

Re "Gay Marriage in the States" (editorial, Feb. 18):

Your support for gay marriage is praiseworthy. It is not the sex of the marriage partners that threatens this social institution, as conservatives would have us believe, but the willingness of each couple to abide by self-determined levels of commitment.

The divorce rate in same-sex marriages is likely to be much lower than that of heterosexual marriages. With shotgun weddings and nuptials resulting from parental pressure unlikely, gays and lesbians have a running head start to successful unions.

MATTHEW MENKEN
Princeton, N.J., Feb. 18, 2004

•

To the Editor:

The actions in California, Massachusetts and Vermont do establish social "laboratories," as you note (editorial, Feb. 18). But I am shocked to see how unperturbed you are by the vastness of this experiment.

The experiment you describe has been foisted on us by a handful of judges and local officials who have circumvented the normal legislative process. Given the large number of people potentially involved, this is reckless and irresponsible.

Considering the damage wrought by other recent social experiments, like no-fault divorce, we should be more circumspect.

FLORIAN GAHBAUER
New York, Feb. 18, 2004

•

To the Editor:

Re "Rushing to Say 'I Do' Before the City Is Told `You Can't' " (news article, Feb. 18):

The American experience has been sustained by the idea that we are a nation of laws and not of kings, and therefore no one is above the law. Whatever our view of allowing gay couples to be afforded the same privileges as married couples, we should not take comfort in what is happening in San Francisco.

Abandoning the rule of law should not be seen as the way to solve complex social issues. Would it be applauded if, say, a conservative mayor decided on his own that in his city abortions would be prohibited or that public money could constitutionally be given to private schools? If mayors are allowed, by a nod and a wink, to ignore the rule of law, where will we wind up?

(Rev.) JOSEPH WATERS
Temple Terrace, Fla., Feb. 19, 2004

•

To the Editor:

A truth overlooked in the gay marriage debate (editorial, Feb. 18) is that marriage status granted by the states is a civil contract, not a religious one. Consequently, all marriage licenses are evidence of a civil union only.

Sanctity of marriage is a religious concept, relevant to unions consecrated by religious institutions. Perhaps the answer is to legislate civil unions for all, both straight and gay couples.

MARCY E. FELLER
New York, Feb. 18, 2004

•

To the Editor:

Re "Gay Marriage in the States" (editorial, Feb. 18):

My partner and I, both United States Army veterans, have been living in a monogamous relationship for 17 years, with the needs and responsibilities of our heterosexual married friends but none of their legal rights. More troublesome is that the rights we do have are in grave danger.

Acceptance of gay marriage is inevitable down the line, but this isn't the year to insist on it. Gay and lesbian couples ought to push instead for full equal rights for civil unions. That will provide far less ammunition for the religious right in the coming campaign.

ROBERT REILLY
New York, Feb. 18, 2004

•

To the Editor:

Re "Gay Marriage in the States" (editorial, Feb. 18):

I hear the question asked over and over again: How would gay marriage have any negative impact on traditional marriage?

Gay marriage devalues the holy institution of marriage even further than it has been devalued by public policy errors like no-fault divorce. Marriage is a special relationship between a man and a woman that has served the good of society throughout history. Gay marriage redefines marriage as something less than an unalienable right ordained by nature, and nature's God.

Marriage is a public institution created for the good of society, not a private institution created for self-fulfillment. If I have an ounce of gold and the government suddenly announces that sandstone will now be called gold and valued equally, what will happen to the value of my gold? It will crash, and so will the economy.

So will it be with gay marriage. Marriage will be further devalued, and so will our entire social order.

(Rev.) BILL BANUCHI
Executive Director
New York Christian Coalition
Newburgh, N.Y., Feb. 18, 2004

•

To the Editor:

Re "Rushing to Say 'I Do' Before the City Is Told 'You Can't' " (news article, Feb. 18):

In this day and age, what we call marriage is really just civil union at the outset, and the marriage grows from within. As a 30-year veteran on the marriage front, I can say with a great deal of confidence that allowing gay marriage as an option is likely to be more beneficial than not.

For most of us, marriage begins with a lifetime commitment, and we succeed or fail on that basis. If that is the standard, and same-sex partners are willing to live up to that goal, I fail to see the harm to anyone.

ARTHUR R. SILEN
Davis, Calif., Feb. 18, 2004

Copyright 2004 The New York Times Company

[JohnMaltczevitch]

Like Zippy, I am opposed to permitting gay couples to marry, but for a different reason.

I think the institution of marriage has to be abolished, whether for gay or straight couples. There is no need for marriage in modern society, paternity is determined by DNA, and property issues handled by lawyers.

[arriplify]

I am opposed to permitting gay couples to marry.
I think that it should be a requirement.

[darieBarexish]

February 7, 2004

Love That Dare Not Squeak Its Name

By DINITIA SMITH


Squawk and Milou, male chinstrap penguins, are among several homosexual pairs at the Central Park Zoo in Manhattan. Homosexual behavior has been documented in some 450 animal species, one researcher says.

Roy and Silo, two chinstrap penguins at the Central Park Zoo in Manhattan, are completely devoted to each other. For nearly six years now, they have been inseparable. They exhibit what in penguin parlance is called "ecstatic behavior": that is, they entwine their necks, they vocalize to each other, they have sex. Silo and Roy are, to anthropomorphize a bit, gay penguins. When offered female companionship, they have adamantly refused it. And the females aren't interested in them, either.

At one time, the two seemed so desperate to incubate an egg together that they put a rock in their nest and sat on it, keeping it warm in the folds of their abdomens, said their chief keeper, Rob Gramzay. Finally, he gave them a fertile egg that needed care to hatch. Things went perfectly. Roy and Silo sat on it for the typical 34 days until a chick, Tango, was born. For the next two and a half months they raised Tango, keeping her warm and feeding her food from their beaks until she could go out into the world on her own. Mr. Gramzay is full of praise for them.

"They did a great job," he said. He was standing inside the glassed-in penguin exhibit, where Roy and Silo had just finished lunch. Penguins usually like a swim after they eat, and Silo was in the water. Roy had finished his dip and was up on the beach.

Roy and Silo are hardly unusual. Milou and Squawk, two young males, are also beginning to exhibit courtship behavior, hanging out with each other, billing and bowing. Before them, the Central Park Zoo had Georgey and Mickey, two female Gentoo penguins who tried to incubate eggs together. And Wendell and Cass, a devoted male African penguin pair, live at the New York Aquarium in Coney Island. Indeed, scientists have found homosexual behavior throughout the animal world.

This growing body of science has been increasingly drawn into charged debates about homosexuality in American society, on subjects from gay marriage to sodomy laws, despite reluctance from experts in the field to extrapolate from animals to humans. Gay groups argue that if homosexual behavior occurs in animals, it is natural, and therefore the rights of homosexuals should be protected. On the other hand, some conservative religious groups have condemned the same practices in the past, calling them "animalistic."

But if homosexuality occurs among animals, does that necessarily mean that it is natural for humans, too? And that raises a familiar question: if homosexuality is not a choice, but a result of natural forces that cannot be controlled, can it be immoral?

The open discussion of homosexual behavior in animals is relatively new. "There has been a certain cultural shyness about admitting it," said Frans de Waal, whose 1997 book, "Bonobo: The Forgotten Ape" (University of California Press), unleashed a torrent of discussion about animal sexuality. Bonobos, apes closely related to humans, are wildly energetic sexually. Studies show that whether observed in the wild or in captivity, nearly all are bisexual, and nearly half their sexual interactions are with the same sex. Female bonobos have been observed to engage in homosexual activity almost hourly.

Before his own book, "American scientists who investigated bonobos never discussed sex at all," said Mr. de Waal, director of the Living Links Center of the Yerkes Primate Center at Emory University in Atlanta. "Or they sometimes would show two females having sex together, and would say, `The females are very affectionate.' "

Then in 1999, Bruce Bagemihl published "Biological Exuberance: Animal Homosexuality and Natural Diversity" (St. Martin's Press), one of the first books of its kind to provide an overview of scholarly studies of same-sex behavior in animals. Mr. Bagemihl said homosexual behavior had been documented in some 450 species. (Homosexuality, he says, refers to any of these behaviors between members of the same sex: long-term bonding, sexual contact, courtship displays or the rearing of young.) Last summer the book was cited by the American Psychiatric Association and other groups in a "friend of the court" brief submitted to the Supreme Court in Lawrence v. Texas, a case challenging a Texas anti-sodomy law. The court struck down the law.

"Sexual Exuberance" was also cited in 2000 by gay rights groups opposed to Ballot Measure 9, a proposed Oregon statute prohibiting teaching about homosexuality or bisexuality in public schools. The measure lost.

In his book Mr. Bagemihl describes homosexual activity in a broad spectrum of animals. He asserts that while same-sex behavior is sometimes found in captivity, it is actually seen more frequently in studies of animals in the wild.

Among birds, for instance, studies show that 10 to 15 percent of female western gulls in some populations in the wild are homosexual. Females perform courtship rituals, like tossing their heads at each other or offering small gifts of food to each other, and they establish nests together. Occasionally they mate with males and produce fertile eggs but then return to their original same-sex partners. Their bonds, too, may persist for years.

Among mammals, male and female bottlenose dolphins frequently engage in homosexual activity, both in captivity and in the wild. Homosexuality is particularly common among young male dolphin calves. One male may protect another that is resting or healing from wounds inflicted by a predator. When one partner dies, the other may search for a new male mate. Researchers have noted that in some cases same-sex behavior is more common for dolphins in captivity.

Male and female rhesus macaques, a type of monkey, also exhibit homosexuality in captivity and in the wild. Males are affectionate to each other, touching, holding and embracing. Females smack their lips at each other and play games like hide-and-seek, peek-a-boo and follow the leader. And both sexes mount members of their own sex.

Paul L. Vasey, a professor of psychology and neuroscience at the University of Lethbridge in Canada, who studies homosexual behavior in Japanese macaques, is editing a new book on homosexual behavior in animals, to be published by Cambridge University Press. This kind of behavior among animals has been observed by scientists as far back as the 1700's, but Mr. Vasey said one reason there had been few books on the topic was that "people don't want to do the research because they don't want to have suspicions raised about their sexuality."

Some scientists say homosexual behavior in animals is not necessarily about sex. Marlene Zuk, a professor of biology at the University of California at Riverside and author of "Sexual Selections: What We Can and Can't Learn About Sex From Animals" (University of California Press, 2002), notes that scientists have speculated that homosexuality may have an evolutionary purpose, ensuring the survival of the species. By not producing their own offspring, homosexuals may help support or nurture their relatives' young. "That is a contribution to the gene pool," she said.

For Janet Mann, a professor of biology and psychology at Georgetown University, who has studied same-sex behavior in dolphin calves, their homosexuality "is about bond formation," she said, "not about being sexual for life."

She said that studies showed that adult male dolphins formed long-term alliances, sometimes in large groups. As adults, they cooperate to entice a single female and keep other males from her. Sometimes they share the female, or they may cooperate to help one male. "Male-male cooperation is extremely important," Ms. Mann said. The homosexual behavior of the young calves "could be practicing" for that later, crucial adult period, she added.

But, scientists say, just because homosexuality is observed in animals doesn't mean that it is only genetically based. "Homosexuality is extraordinarily complex and variable," Mr. Bagemihl said. "We look at animals as pure biology and pure genetics, and they are not." He noted that "the occurrence of same-sex behavior in animals provides support for the nurture side as well." He cited as an example the ruff, a type of Arctic sandpiper. There are four different classes of male ruffs, each differing from the others genetically. The two that differ most from each other are most similar in their homosexual behaviors.

Ms. Zuk said, "You have inclinations that are more or less supported by our genes and in some environmental circumstances get expressed." She used the analogy of right- or left-handedness, thought to be genetically based. "But you can teach naturally left-handed children to use their right hand," she pointed out.

Still, scientists warn about drawing conclusions about humans. "For some people, what animals do is a yardstick of what is and isn't natural," Mr. Vasey said. "They make a leap from saying if it's natural, it's morally and ethically desirable."

But he added: "Infanticide is widespread in the animal kingdom. To jump from that to say it is desirable makes no sense. We shouldn't be using animals to craft moral and social policies for the kinds of human societies we want to live in. Animals don't take care of the elderly. I don't particularly think that should be a platform for closing down nursing homes."

Mr. Bagemihl is also wary of extrapolating. "In Nazi Germany, one very common interpretation of homosexuality was that it was animalistic behavior, subhuman," he said.

What the animal studies do show, Ms. Zuk observed, is that "sexuality is a lot broader term than people want to think."

"You have this idea that the animal kingdom is strict, old-fashioned Roman Catholic," she said, "that they have sex just to procreate."

In bonobos, she noted, "you see expressions of sex outside the period when females are fertile. Suddenly you are beginning to see that sex is not necessarily about reproduction."

"Sexual expression means more than making babies," Ms. Zuk said. "Why are we surprised? People are animals."

Copyright 2004 The New York Times Company