Same Sex, Different States

Yale University Press

Contents

Chapter One

Robert Kaufmann met Walter Weiss in 1948. Within a year, they had moved in together. Robert was an heir of the Kay Jewelry fortune, but he had no interest in business. He wanted to be an artist. Walter encouraged these interests and eventually ran the household; oversaw the cooking, cleaning, and entertaining; answered the mail and telephone; paid the bills from Robert's bank account; and found doctors when Robert was ill. Robert turned out to be talented. By the time he died, eighty museums had accepted his paintings for permanent display.

Beginning in 1951, Robert made a series of wills, each of which increased Walter's share of his estate. The last of these, drafted by a prominent New York City law firm, left nearly everything to Walter. It was accompanied by a letter to Robert's family, which he signed in 1951. It declared that before meeting Walter, Robert was "terribly unhappy, highly emotional and filled to the brim with a grandly variegated group of fears, guilt and assorted complexes." Walter, it said, had encouraged Robert to submit to psychoanalysis, which had benefited him enormously:

Walter gave me the courage to start something which slowly but eventually permitted me to supply for myself everything my life had heretofore lacked: an outlet for my long-latent but strong creative ability in painting ..., a balanced, healthy sex life which before had been spotty, furtive and destructive; an ability to reorientate myself to actual life and to face it calmly and realistically. All of this adds up to Peace of Mind.... I am eternally grateful to my dearest friend-best pal, Walter A. Weiss. What could be more wonderful than a fruitful, contented life and who more deserving of gratitude now, in the form of an inheritance, than the person who helped most in securing that life? I cannot believe my family could be anything else but glad and happy for my own comfortable self-determination and contentment and equally grateful to the friend who made it possible. Love to you all, Bob

In 1952, Robert executed a document granting Walter the types of powers that a legal spouse would have. Walter was given exclusive power over Robert's corporeal remains and the authority to make all funeral arrangements. If Robert was in-capacitated, Walter was given the power to consent on Robert's behalf to the performance of any operation he deemed necessary. The instrument provided that Walter was to act as "though he were my nearest relative ... and that his instructions and consents shall be controlling, regardless of who may object to them."

In April 1959, sleeping alone in his Florida home, Robert died in a fire.

Robert's family had never liked Walter, and they had resented his interference with their business decisions while Robert had been alive. Robert's brother, Joel, sued to have the will set aside on grounds of undue influence. A will can be set aside for undue influence, the court explained later, if the beneficiary "internalizes within the mind of the testator the desire to do that which is not his intent but the intent and end of another." The scenario that voids a will on this basis is one in which the testator has become a sort of marionette, whose own will is completely overborne by that of the manipulative beneficiary. A typical example is when a feeble ninety-eight-year-old man signs a will disinheriting his family and leaving all his assets to his nurse.

There were two jury trials, both finding undue influence, and the appellate division of the New York courts held that there was enough evidence "to find that the instrument of June 19, 1958, was the end result of an unnatural, insidious influence operating on a weak-willed, trusting, inexperienced Robert whose natural warm family attachment had been attenuated by false accusations against Joel, subtle flattery suggesting an independence he had not realized and which, in fact, Weiss had stultified, and planting in Robert's mind the conviction that Joel and other members of the family were resentful of and obstructing his drive for independence."

Robert's letter was held to be "cogent evidence of his complete domination by Weiss." The court of appeals affirmed, finding evidence that Robert "was pliable and easily taken advantage of" and "that there was a long and detailed history of dominance and subservience between them." Robert's carefully drafted will was ignored.

The Shifting Cultural Landscape

The most striking thing about the story of Robert Kaufmann is how far away it seems now. It is not just that many people today (though they are in the minority) think that Robert and Walter ought to have been allowed to marry. Rather, even most people who are opposed to same-sex marriage are still willing, as the New York courts in the mid-1960s were not, to allow couples like Robert and Walter to try to create many of the rights of marriage through contracts and wills. Among legal scholars, the Kaufmann decision is now widely criticized and discredited.

The shift that has taken place in American culture is most evident in the large number of same-sex couples who indicate that they are openly living together as though they were married, often with children. The 2000 Census found that nearly 600,000 same-sex couples reported themselves as "unmarried partners," compared with 145,130 such households counted by the 1990 Census. The number is probably a substantial under-count because many gay people are unwilling to share this information with the government. Same-sex households were reported in 99.3 percent of U.S. counties in 2000 and were about as racially diverse as the population as a whole. Thirty-four percent of lesbian couples and 22 percent of gay male couples had children. (By comparison, 46 percent of married heterosexual couples were raising children.)

Many opponents of same-sex marriage have argued that same-sex couples can achieve many of the same legal rights as married heterosexual couples through contracts, wills, and powers of attorney. (Although this is true in some cases, what's excluded can be important. For instance, contracts and wills cannot pass on pension rights, nor can they allow a person to inherit a house without having to pay transfer taxes.) This response presupposes that these documents ought to be honored. Liberals and conservatives have moved closer together on these issues.

As this is a book about managing moral disagreement, it makes sense to begin where there is no moral disagreement. It is now generally agreed that homosexual couples have a right to exist, which has implications for the marriage recognition question.

The Kaufmann story also shows how far the nation has moved. As recently as the 1950s, the United States was so far from giving any recognition to same-sex relationships that it devoted substantial law enforcement resources to stamping them out. Gay people were routinely jailed, committed to mental institutions, and randomly beaten, sometimes by the police. All this still sometimes happens, but it is much rarer than it once was.

The Same-Sex Marriage Movement

A newly energized gay liberation movement beginning in the late 1960s challenged this orthodoxy, and recognition of same-sex marriages was one of its first demands. But it quickly became clear that this cause was futile. The first attempts to get courts to declare a right to same-sex marriage took place in the early 1970s, and they were uniformly defeated. The reasoning of these courts was essentially definitional: "Marriage has always been considered as the union of a man and a woman and we have been presented with no authority to the contrary." Although suits repeatedly were filed throughout the 1980s, these also all lost, and it became the conventional wisdom that such attempts were hopeless. The movement soon shifted its focus to (and enjoyed considerable success with) other issues, such as overturning sodomy laws and combating violence and discrimination.

Gay rights claims of all kinds became more politically potent during the 1980s, largely as a consequence of the willingness of unprecedented numbers of gay people to come out to their friends, families, and coworkers. In 1985, only a quarter of Americans reported having a gay friend, relative, or co-worker; in 2000, that proportion had risen to three-quarters of the population. Only a fifth reported not knowing anyone who was gay. The number who reported having a gay friend or close acquaintance grew from 22 percent in 1985 to 56 percent by 2000. Those reporting a gay or lesbian family member rose from 9 percent in 1992 to 23 percent in 2000. Gay people were increasingly visible, and their claims slowly became the claims of familiar human beings, not distant abstractions.

Pressure for recognition of same-sex relationships increased during the 1980s, historian George Chauncey observes, because of the impact of two new developments: the AIDS epidemic and the lesbian baby boom. AIDS victims often had to rely on the assistance of partners who were regarded by the law as legal strangers to them. "Because they were not `next of kin,'" Chauncey writes, "hospitals could refuse them the right to visit their partners, did not need to consult with them or even inform them about treatment, and could not designate them to sign forms authorizing medical treatments even if they wanted to." Surviving partners sometimes lost their homes when a partner's biological family contested the will or claimed a jointly owned home or property. The willingness of some courts to set aside wills of gay testators sometimes led partners to settle for a fraction of their inheritance.

At the same time, increasing numbers of lesbian couples were having children, typically through the use of donor sperm. They worried about what would happen if the biological mother died and a relative contested the right of the surviving partner to continue to have a relationship with the child. Difficulties also arose when a couple separated. Although both women had raised the child, the nonbiological mother had no legal relationship with the child and no right to visitation, and the biological mother had no claim for child support.

As horror stories accumulated, more couples hired lawyers to prepare wills, medical powers of attorney, and other documents to provide them with some security. But a complete set of documents approximating the protections of marriage could cost thousands of dollars, more than many couples could afford. And, as noted earlier, some benefits of marriage could not be achieved by any contract between the parties. So gay couples began to campaign for some recognition of their relationships under the rubric of "domestic partnerships." Avoiding the term "marriage" made sense because the experience of the 1970s had made it clear that same-sex marriage was not, even distantly, on the political horizon.

The Shifting Legal Landscape

Gay rights advocates were as surprised as everyone else when a 1993 Hawaii Supreme Court decision seemed to indicate that that state would shortly have to recognize same-sex marriages. The court held that the statute discriminated on the basis of sex and therefore was subject to strict scrutiny under the equal protection clause of the state constitution. In order to justify its discrimination against same-sex couples, the court held, the state would have to show that the discrimination is necessary to a compelling state interest. This is a nearly impossible burden to carry, so most observers expected that the state would lose at trial (as in fact it eventually did).

Americans have consistently opposed same-sex marriage by wide margins, so it is not surprising that the reaction to the Hawaii developments in the rest of the United States was strongly negative. In 1996, Congress responded by enacting the federal Defense of Marriage Act (DOMA), which declared that no same-sex marriage would be recognized for federal purposes, such as in filing joint tax returns, awarding social security survivor's benefits, or providing medical insurance for the families of federal employees. The act also indicated that states were not required to recognize marriages from other states when they had strong public policies to the contrary (here basically restating existing law, though with some important and unnoticed modifications). States began enacting their own mini-DOMAs, declaring that they did indeed have public policies against recognizing same-sex marriages valid in other states. As of this writing there are forty such laws on the books. Three other states do not address interstate recognition, but they do have laws denying marriage licenses to same-sex couples.

As it turned out, Hawaii never did recognize same-sex marriage. While the case was still being appealed, a state constitutional amendment was adopted giving the legislature the right to reserve marriage to opposite-sex couples. Other states, however, soon moved toward recognition of same-sex couples. In 1999, the Vermont Supreme Court declared that gay couples were entitled under the state constitution to the same legal rights as married heterosexual couples. The state constitution's "common benefits" clause, which required that government benefits be shared equally by the entire community, required that homosexuals not be excluded from legal benefits and protections available to heterosexuals. The legislature soon responded by enacting a law creating the status of "civil unions," with all the rights of marriage but not the name. In 2003, California did the same thing by statute, calling the relationships "domestic partnerships." (In 2005, the California legislature voted to adopt same-sex marriage, but the bill was vetoed by the governor.) Connecticut passed its own "civil unions" law in 2005. A number of other states offer weaker recognition, with fewer rights. There has been a similar movement in the private sector, as growing numbers of employers provide benefits to employees' same-sex partners.

Same-sex marriage, with the name included, arrived when the Massachusetts Supreme Judicial Court decided in November 2003 that the state constitution was violated by the denial of marriage licenses to gay couples. The court held that there was no rational basis for this discrimination and gave the state six months to comply with its order. It later explained, in response to an inquiry from the legislature, that civil unions were inadequate because they "would have the effect of maintaining and fostering a stigma of exclusion that the Constitution prohibits." Massachusetts started issuing the licenses on May 17, 2004. Officials in some municipalities, notably San Francisco, also issued marriage licenses in defiance of local prohibitions, but these were all soon held to be invalid.

The movement toward same-sex marriage in the 1990s was not confined to the United States. By the time of the Massachusetts decision, same-sex marriage was already legal in the Netherlands, Belgium, and much of Canada. Since then, it has also been legalized in the rest of Canada and in Spain, and as this is written South Africa's Supreme Court has held that it must soon be recognized there as well. (There was some movement in the other direction when Uganda made it a crime to even participate in a private ceremony marrying two people of the same sex.)

(Continues...)

Excerpted from Same Sex, Different Statesby ANDREW KOPPELMAN Copyright © 2006 by Andrew Koppelman. Excerpted by permission.
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