Journalist Raphael Lewis

DATE February 5, 2004 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Raphael Lewis discusses Massachusetts moving toward
becoming the first state in the country to legalize gay marriage
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

Yesterday Massachusetts took a big step toward becoming the first state in the
country to legalize gay marriage. Last November the state's highest court
ruled that the state's marriage laws needed to be updated within six months so
as not to exclude people of the same sex from marrying. The Massachusetts
Senate asked the court if a bill giving same-sex couples the right to form
civil unions would be sufficient. Yesterday the court said no. Civil unions
would create, quote, "an unconstitutional, inferior and discriminatory status
for same-sex couples. Separate is seldom, if ever, equal," unquote.

This ruling was different from the one in Vermont in which the highest court
told the Legislature that the state was required to extend the benefits of
marriage to same-sex couples but those benefits could be offered through civil
unions. We'll talk about how Vermont legalized civil unions in the second
half of the show.

Although the Massachusetts Legislature is now required to legalize gay
marriage, it is also expected to debate an amendment to the state constitution
that would restrict marriage to heterosexual couples. Earlier today I spoke
with Raphael Lewis. He covers the Massachusetts Legislature for The Boston
Globe.

On what grounds does the high court of Massachusetts have the authority to
tell the Legislature to define for the Legislature what it needs to do in
terms of gay marriage?

Mr. RAPHAEL LEWIS (The Boston Globe): The high court in Massachusetts is the
ultimate arbiter of what is constitutional in the state. Because the
Legislature never dealt with the issue of gay marriage and with defining
marriage, the court was left in the position to say who can get married and
who can't. The laws here--the marriage laws--don't say anything explicitly
about men and women being the only ones allowed to get married. They don't
say that marriage is for procreation, for creating families, and all the
things that a lot of people do think of marriage as being about. So the court
said, `Well, absent that kind of language and absent any kind of definition,
we look to the state constitution, and the state constitution says that we're
all equal under the law, and, therefore, we see no reason to deny same-sex
couples civil marriage rights.'

GROSS: If gay marriage is legalized in Massachusetts, that would give gay
spouses the opportunity to challenge the Defense of Marriage Act. Because
you'd need to be married in order to challenge the act. Do you think that
before such a challenge is posed that there would be a hunt for, you know,
just the right test case, you know, for a couple that would make a great test
case?

Mr. LEWIS: Yes, actually, I do believe that based on what happened here in
Massachusetts, the lawyers found seven ideal couples for the case that
ultimately led to legalization of gay marriage here. Not so much for the
judges, I don't believe, but for the media view, and just the public's view.
Here were seven couples that were very stable, professional, good members of
their community, with children, homeowners, and were able to exemplify many of
the needs of married couples, involving owning a home, probate issues,
inheritance, the hospital visitation--one of the couples--when one woman was
having her baby, the other mother couldn't get into the emergency room. And
so they will choose very carefully.

GROSS: So as a result of the test case, the high court said that the laws
didn't adequately address this issue and it demanded that the Legislature
take care of that.

Mr. LEWIS: Yes, although the Legislature doesn't necessarily have to do very
much. They really just have to clean up a little language in the marriage
laws that say `bride' and `groom' and things like that, and just clean up some
of the forms. They really could actually sit back and do nothing at this
point, and same-sex couples would still be able to get their civil marriage
licenses. You know, it wouldn't change anything in terms of church and
synagogue and mosque weddings. You know, a mosque or a church could easily
deny under this scenario giving a marriage ceremony to a same-sex couple. But
they could still go right down to the town hall and, if they qualify, get the
license.

GROSS: Yesterday's court decision was in response to the Massachusetts state
Senate going back to the court and asking for advice on whether a civil union
would be acceptable to the court or whether it had to be gay marriage. And
the court said, `No, it has to be gay marriage.' Now in Vermont, the opposite
was the case. The state Supreme Court in Vermont said a civil union is
acceptable. Can you talk about those two different models?

Mr. LEWIS: The two different models--you know, within the state borders,
there's not a tremendous difference between civil unions and civil marriage in
the sense that a state can bestow a certain number of benefits and rights to
couples that are married and those very same rights would have been created
under the Massachusetts' civil union scenario. Same goes in Vermont.
However, there's a large set of federal rights and benefits that go along with
being married, even though that marriage certificate is granted by a town and
a state. So that is the big difference between civil unions and civil
marriages, that, and, also, a marriage is accepted by all the other states,
presumably. Although there's the complicating factor of the Defense of
Marriage Act. But a civil union would not necessarily be honored by another
state if a couple were to visit or to eventually move or anything that might
happen.

GROSS: Yeah, why don't you explain how the Defense of Marriage Act affects
whether other states will recognize gay marriages.

Mr. LEWIS: This is really the $64,000 question. The Defense of Marriage Act,
which is a federal act, allowed states to define marriage for themselves, and
said, `You don't have to honor another state's marriage law if, in fact, you
know, like in Massachusetts' case, they were to honor gay marriages.'
However, there are plenty of constitutional scholars who believe that the
Defense of Marriage Act will not hold up under a lawsuit. You know, there's a
thought that the Constitution requires states to honor the marriage licenses
of each other.

GROSS: This week Ohio became the 38th state to pass legislation basically
defining marriage as something that happens between a man and a woman, and
prohibiting recognition of gay marriage.

Mr. LEWIS: Yeah, exactly. Only, I believe, three or four states have
actually put it into their constitution, but, yes, 37, 38 states have said,
`Marriage is the union of a man and a woman. The question is: Would those
laws hold up if a couple were to get married in Massachusetts and head back to
their home state and say, `We're married. We want these benefits. We want
these rights?' Some say those laws would hold up, including Bob Barr, the
former Republican congressman who's a chief sponsor of the Defense of Marriage
Act. But many others, like Larry Tribe, of the Harvard Law School, says it
would probably wither and die under a test.

GROSS: So now that the state Supreme Court of Massachusetts has gone back to
the state Legislature and said, `Civil unions aren't good enough, you have to
legalize marriage between people of the same sex,' what position does this put
the legislators in?

Mr. LEWIS: Oh, the legislators were really hoping, even many of the more
liberal legislators in Massachusetts, were really hoping that that bill was
going to pass constitutional muster. Because I don't think they wanted to be
the first in the nation. It's an uncomfortable position, of course, to be at
the vanguard and, obviously, there are many who don't even agree with the
idea. There's a lot of sweating going on behind the scenes right now.
Lobbying groups on both sides of the issue are literally filling the hallways,
trying to talk to all 200 of the legislators. The Catholic Church is deeply
involved in this state; you know, 40 percent of the state is Catholic. And so
the entire archdiocese of the entire state--there's four diocese, and they're
active up here, and they're lobbying. There's sermons in the churches. You
know, no one knows what's going to happen over the next few weeks.

GROSS: Do you think that some of the legislators feel that there's no middle
ground for them, for the legislators who feel that gay marriage is too extreme
for them to vote for, but they'd be willing to vote for civil unions. They
may also feel that it's too extreme to have a constitutional amendment that
outlaws the legalizing of gay relationships. So do they feel that there's no
acceptable position for them now?

Mr. LEWIS: It's safe to say that most Massachusetts lawmakers right now feel
that there is no middle ground. And that's largely because there is none
anymore. What the court has done has said there's gay marriage now. You can
actively work to deny these couples those marriage rights or you can do
nothing but you can't do something in the middle. And the curious thing is
that here in Massachusetts it takes several years to amend the constitution
so we're going to have a situation here where on May 17th of this year, the
50th anniversary, by the way, of the Brown vs. Board of Education vote, civil
marriage certificates will be handed out to gay and lesbian couples. But it's
not until the fall of 2006 that they could overturn this ruling by amending
the constitution. So there's, you know, several years here where there will be
couples getting married not only from Massachusetts but presumably from all
over the country coming here to get a marriage license.

GROSS: John Kerry is a senator from Massachusetts. In the past he has
supported civil unions. What does he have to say now about the Supreme
Court's decision saying only gay marriage will do?

Mr. LEWIS: He issued a fairly brief statement yesterday saying that he
disagreed with the court's decision, that he does not favor gay marriage and
that he is, however, in favor of civil unions. And I'm sure he can look
forward to the day when this is going to be a liability for him, coming from
Massachusetts, which is widely viewed as one of the most liberal states in the
nation. The state Democratic Party Committee just voted the other day to
endorse gay marriage. John Kerry is actually a member of the state committee
but he wasn't there for the vote and presumably would not have signed onto it.

GROSS: Now President Bush said yesterday in reaction to the Massachusetts'
court's decision, `Marriage is a sacred institution between a man and a woman.
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.' And he's referring there to
the possibility of an amendment to the federal Constitution that would outlaw
gay marriage.

I hate to ask you to be in a position of predicting the future, but how much
of an issue do you think this is going to become in the presidential election?

Mr. LEWIS: Well, I do believe it is going to become an issue. And Karl Rove,
the president's chief political adviser, is, obviously, looking to shore up
the conservative base. The conservative base was pushing very hard for the
president to endorse a federal amendment banning gay marriage. He alluded to
it in his State of the Union speech, but didn't go far enough for them. And
now conservative groups are saying--said yesterday, and it was reported today
in The New York Times, that they are getting assurances from the White House
that the president will, indeed, endorse this. So that inherently becomes an
issue. Perhaps John Kerry will take a stance where he says, `That's too far,
that's draconian and I don't think it's proper.' We have to keep in mind that
John Kerry voted against the Defense of Marriage Act that President Clinton
signed.

GROSS: If there is a movement to have an amendment to the federal
Constitution that would outlaw gay marriage, what would that mean for the
nation and for the movement to legalize gay marriage?

Mr. LEWIS: Well, I think it sets up a very divisive culture war, not unlike
the battle over abortion. You have two sides that are quite impassioned, that
don't see a middle ground here, and that see any incremental steps as a
tremendous erosion of their position, just as the partial-birth abortion ban
was seen as the first step toward overturning Roe V. Wade. You know, that's
basically what's happening here. People see Massachusetts as the first domino
in what will ultimately be the overturning of the Defense of Marriage Act and
what some people see as, you know, the upending of thousands of years of
marriage history. Gay couples, on the other hand, say, `We're already gay.
Many of us are already adopting. It's not changing anything but just giving
us rights that any American should be afforded.'

GROSS: If there's an amendment to the federal Constitution outlawing gay
marriage, does that end the ability of states to legalize gay marriage?

Mr. LEWIS: Yes, it would. Definitively. The federal Constitution trumps the
state constitutions.

GROSS: So as far as you can tell, what's the importance now of Massachusetts
in the controversy over gay unions?

Mr. LEWIS: Massachusetts creates the wedge that same-sex marriage backers
needed to challenge the federal Defense of Marriage Act. Couples can come
here, get married, go back to their home states, and sue for the rights and
benefits that they believe they should be afforded with those marriage
licenses. It starts the series of federal discussions that will ultimately
lead to either the overturning of the Defense of Marriage Act or the
recognition of the Defense of Marriage Act allows states to control their own
marriage laws or the possibility that the US Constitution itself would be
changed.

GROSS: Well, Raphael Lewis, thank you very much for talking with us.

Mr. LEWIS: Thanks for having me.

GROSS: Raphael Lewis covers the Massachusetts state Legislature for The
Boston Globe.

Coming up, how Vermont became the first state to legalize gay civil unions.
This is FRESH AIR.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Interview: Author David Moats discusses legalized civil unions
in Vermont
TERRY GROSS, host:

Massachusetts is on its way to becoming the first state to legalize gay and
lesbian marriage. Vermont was the first state to legalize civil unions for
same-sex couples. My guest, David Moats, has written a book about how that
happened called "Civil Wars: A Battle for Gay Marriage." He's the editorial
page editor of the Rutland Herald in Vermont, and won a Pulitzer Prize for his
editorials in favor of civil unions. The issue of same-sex unions came to the
Vermont courts in a test case involving three same-sex couples requesting
marriage licenses. I asked Moats how the ruling of Vermont's highest court
compared to the Massachusetts ruling.

Mr. DAVID MOATS (Author, "Civil Wars"): The Vermont court in 1999, in
December, came out with its ruling on the Baker case, which was based on the
Vermont Constitution and the court explicitly gave the choice to the
Legislature to either pass a law creating gay marriage or to create a parallel
institution, as they called it, domestic partnership, or it becomes known as
civil union. And the reason they were able to do that was that they were
relying on a clause in the Vermont Constitution, the common benefits clause,
which holds the government is--or ought to be--instituted for the common
benefit of the people and not for the benefit of one group or another. And so
the chief justice in that opinion found that this is a question of benefits,
not so much of rights. So if we create civil unions and that provides equal
benefits, that's good enough. In the Vermont--in the Massachusetts case, it
was a case of equal rights. They weren't relying on anything like the common
benefits clause. And so the court held that gay and lesbian couples have the
right to marry.

GROSS: Now in the Massachusetts Supreme Court, the judge said that the
history of our nation has demonstrated that separate is seldom, if ever,
equal. And that was at least one of the reasons why the court said that civil
unions wouldn't do because it's separate from and therefore not equal to the
concept of marriage. But the Vermont Supreme Court didn't seem to have
trouble with that. Was the issue of separate but equal or separate and
therefore unequal raised in Vermont?

Mr. MOATS: Yes, it was. The advocates who--lawyers who argued the case in
Vermont made that case--made that argument very clearly and they said marriage
is a benefit in and of itself. The word is--and everybody knows that marriage
is an important institution. And so they made that case and there was
one--there was a dissent in the Vermont case, one of the justices, basically,
agreed, and said this was a civil rights case, and, you know, creating a
separate category is not right. But since the court was basing it on the
common benefits clause and was making this argument about benefits, then the
court found that, well, separate could be equal. In fact, Governor Dean,
during that time, his take on it was `This is different, but equal.' And he
caught some flak for that, but that's how he portrayed it, and so I've argued
that separate but equal was not an accurate characterization because in the
civil--in the South, in the Jim Crow South, the doctrine of separate but equal
was meant to disguise inequality. In Vermont, civil unions is a way to
disguise equality. It's marriage except in name, and it's supposed to be
equal. The whole point is for it to be equal. It just has a different name.

GROSS: So it's easier to pass by legislators that way? Because
you're--they're not legalizing gay marriage, it's just civil unions.

Mr. MOATS: Yeah. It was a calculation that Governor Dean made at the very
outset and the legislative leaders made at the outset. They figured that
they--the chairman of the House Judiciary Committee, who was really
instrumental in pushing this bill through, figured that he would--he could
only get maybe 35 votes for a marriage bill and he would need 76.

GROSS: How did gay activists in Vermont take to the idea of civil union and
not the full-fledged marriage?

Mr. MOATS: I begin my book with the story of the day the ruling was announced
and Beth Robinson was the lawyer who argued the case before the Supreme Court
and she was devastated by the ruling. It was a great victory for her, and yet
she was devastated, because she wanted the court to come out squarely for
marriage, and so she had to go to the press conference about the ruling and
she had to go to a rally where all the--her supporters were there with--and
she had to say, `Yes, this is a great victory but we're going to push in the
Legislature for marriage because that's the only thing that will be equal.'
And so she was torn and at the end of the day she went home and wept because
on this--the day of this great victory she didn't really get the victory she
wanted.

GROSS: What instructions did Vermont's Supreme Court give Vermont's state
Legislature when the court said, `You have to come up with some kind of legal
equivalent of marriage for gays or you have to legalize marriage for gays'?

Mr. MOATS: The instruction was just that, create marriage or what they call
the parallel institution, and the court reserved jurisdiction which meant that
the--if the Legislature had failed to act, then the court could have come back
and said, `OK, you failed to act so we're going to declare that marriage is
their right.'

GROSS: David Moats is the editorial page editor of the Rutland Herald in
Vermont. His new book is called "Civil Wars: A Battle for Gay Marriage."
He'll be back in the second half of the show.

I'm Terry Gross. And this is FRESH AIR.

(Soundbite of music)

GROSS: This is FRESH AIR. I'm Terry Gross, back with David Moats, author of
the new book "Civil Wars: A Battle for Gay Marriage." It's the story of how
Vermont became the first state to legalize civil unions for gay and lesbian
couples. Moats is the editorial-page editor of the Rutland Herald in Vermont
and won a Pulitzer Prize for his editorials in support of gay civil unions.

In 1999, Vermont's highest court ruled that the state Legislature had to
extend the benefits of marriage to same-sex couples, but the court gave the
legislators the option of extending those benefits through civil union.

The issue of gay marriage and gay civil unions is so hot politically. Were
the legislators happy or disturbed to be handed this issue?

Mr. MOATS: A lot of them were very disturbed. A number of them heard about
the ruling, heard that the court had thrown it into their laps, and they went,
`Oh, no.' You know, they thought, `I'm doomed. If I vote for this, I'm sure
to lose my seat.' So the leadership saw that they needed to act, however, and
they took it on and acted quickly. The Judiciary Committee cleared their
calendar and dealt with nothing else for a month or so.

But many of the legislators were right in a hot seat. I describe one
Republican member of the Judiciary Committee, a former state trooper named
John Edwards, and he was kind of at a loss. What should he do? And one day
he just sat down in a busy room at the State House, people coming and going,
and he had a little conversation with himself and he decided, `Well, I just
have to go with this. I'll probably lose my seat, but I have to do the right
thing.' And he said, `After that, I was at peace with myself.' And he voted
for it, and he lost his House seat in the Republican primary the following
September.

GROSS: Did that happen to many other people who voted for civil unions?

Mr. MOATS: Sixteen House members lost their seats and two senators. The
House went from Democrat to Republican control; Senate remained in the hands
of the Democrats. One senator--he had even been told that he could vote
against it if he needed to to save his seat--a Democrat, Mark MacDonald--and
he was planning to. He had all the justifications, you know, and everybody
giving him permission to vote against it. And a couple nights before, someone
called him and he was talking with a friend on the phone and said, `Well, what
are you going to say to your students?' He was a high school teacher. `What
are you going to say to your students? That you voted against this just to
save your skin?' And he came on the floor of the Senate and gave a speech
describing this, and he went ahead and voted for it. And he lost his seat
that fall and then, two years later, he regained his seat. People told him,
`Well, we punished you. We thought we needed to punish you, but now we'll
vote you back in.'

GROSS: Was the issue of gay marriage or civil unions discussed in a different
way once it entered politics, once it got out of the courts and entered the
state Legislature?

Mr. MOATS: It was discussed in every which way that you can imagine. In the
courtroom, you know, it's all legal arguments and quiet, reasonable
discussion. And it got into the Legislature and the whole place was turned
upside down. The Statehouse was packed with people advocating on both sides,
you know, and the people that--legislators described for me the atmosphere.
It was just tense.

And, in a way, this is what the chief justice wanted in turning it over to the
Legislature. He wanted to throw it into what he called the political
cauldron. And it really was a cauldron. And the reason is that the
democratic process would give the outcome greater legitimacy. You know, to
involve the people in the outcome would be better in the end. And so it was a
great education for the state of Vermont, and he got that outcome. It was an
arduous process but, in the end, it worked.

GROSS: Now you say that the language of the opponents of gay civil unions was
so extreme that it pushed some House members toward supporting the bill for
gay civil unions. Can you give us an example of some of that extreme language
and how it affected legislators?

Mr. MOATS: For example, people would come before the Legislature and they
would read from the Bible and they would say, `You should not put the seal of
approval on immoral behavior.' And then you had kind of extreme examples
like one House member proposed an amendment to require an HIV test for people
seeking a civil union. And if either one of the partners tested positive, you
couldn't have a civil union. People were aghast at this and thought that this
was just awful, and only two House members supported that amendment.

GROSS: What were some of the winning arguments in Vermont that led the
Supreme Court and the Legislature to legalize civil unions?

Mr. MOATS: Well, one of the crucial arguments in all of these cases is the
procreation argument. The opponents of civil union and gay marriage say that
marriage should be reserved for heterosexual couples to encourage procreation
and care of children by a heterosexual couple. And that sort of seems kind of
obvious on its surface, but then you realize that there are a lot of
heterosexual couples that don't want to have anything to do with procreation.
You know, a couple that's 70 years old might want to get married but they
aren't planning on having children. And, then again, there are a lot of gay
couples that do have children. Two of the three couples in the case in
Vermont, one had an adopted child, one had a child conceived from a sperm
bank. And so it was kind of ridiculous to argue that marriage should be
reserved for heterosexual couples for the purpose of encouraging stable
families and the care of children when there are plenty of gay couples who
have children.

GROSS: Do you know how many people have taken advantage so far of this new
civil union law?

Mr. MOATS: There have been more than 5,000. And at the time I was finishing
up in the summer, they had come from every state except North Dakota and
Montana--and from Canada. And only 800 or so of them had been from Vermont.

GROSS: Is there a Chamber of Commerce that's saying, `This is really good for
business'?

Mr. MOATS: Yeah. Well, I don't know about the Chamber, but a number of inns
have set up package deals and stuff where you can go have a weekend and have a
civil union and have a vacation. And they've tried to make a good business
of it. Their fear was at the time this was being discussed that this would
discourage tourism because people would be so disgusted and everything, but I
don't think anything like that has happened. Quite the reverse. I think
there's been a modest tide of people coming to Vermont.

GROSS: My guest is David Moats, author of the new book "Civil Wars: A Battle
for Gay Marriage." We'll talk more after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: My guest is David Moats, author of the new book "Civil Wars," the
story of how Vermont became the first state to legalize civil unions for gay
and lesbian couples. Moats is the editorial-page editor of the Rutland Herald
in Vermont and won a Pulitzer Prize for his editorials in support of civil
unions.

Let's talk about Governor Howard Dean's role in the passage of the gay civil
union legislation. What was his reaction when the Supreme Court told the
Legislature that it had to write a bill? And that would also mean that
Governor Dean would have to sign the bill, so it brought him into the
controversy in a way that he wasn't involved when it was in the courts.

Mr. MOATS: Right at the outset, within minutes of the release of the Supreme
Court's ruling, he called a press conference. And he said, `I am against the
gay marriage alternative. I'm for the domestic partnership alternative,'
which was what it was called then. And he said, `I'm glad they didn't go
forward with the more radical alternative,' and so on. And so he staked out
his position very clearly. It was a practical political judgement, and he
figured there's no way marriage would make it through the Legislature and so
he was for civil union. And the legislative leadership came to the same
conclusion and so that's the way it went. After that, you know, he was sort
of behind the scenes on it. He wasn't really strong-arming people on it, but
he would talk to people sometimes.

And then I heard stories, things I hadn't known before, as I was researching
this book. The bill went to the Senate and the Senate leadership was nervous.
They thought, `Jeez, we're going to lose in November if we have to really go
forward with this.' And a couple of the Senate leaders held a secret meeting
with Howard Dean up at his office. They even requested his staff not be
present. They were afraid that it would become known that they were trying to
chicken out. And, well, they went to him and said, `Can we have a study
commission or something? Can we delay this, you know, until after the
election?' And he said, `No way. We have to do what's right. We just have
to do this, you know.' And so they really gave him credit for being
unwavering on it.

And so then, when he signed the bill, he signed it in private. He had no
press, no supporters, no nothing. He said he wanted to avoid the triumphalism
of a public signing. Well, people said immediately, of course, that he signed
it in the closet. And he came out and held a press conference as soon as he
signed it and said why he had done it that way and that that was the reason.
He wanted to not--the wounds were still raw, he said, and he didn't want to
rub those wounds and make them any more raw. But at that press conference, he
also explained why he had signed it and said, `This is a very important bill
for Vermont and for America,' and so he's proud to sign it and so on.

GROSS: Governor Dean said during this period that gay marriage made him
uncomfortable, the same as anyone else. What kind of reaction did that
comment get?

Mr. MOATS: People rolled their eyes. In a way, that's politically incorrect
or it's--you know, the advocates of gay marriage were rolling their eyes, I
suppose. But, in a way, this is why he has been as popular as he has been is
that's a very candid and frank admission, and a lot of people are
uncomfortable with it. He was acknowledging that. A lot of the people in the
Legislature were uncomfortable with it. That's why it created such a fury.
And so he admitted it and came right out with it. And oh, well, that kind of
punctures that particular balloon, `Yeah, OK, we are uncomfortable with this,
but we're going to deal with it.'

GROSS: And, you know, I haven't asked you yet why the three couples who
brought this issue to the courts in Vermont did it in the first place? How
did these three couples get together and form this suit for the right to have
a legalized relationship?

Mr. MOATS: There's a group in Vermont called the Vermont Freedom to Marry
Task Force. And a couple of lawyers, they had this idea that they wanted to
do this. And they had set up kind of a speakers bureau and they would have
people go around to Rotary Clubs and church groups and so on and talk about
the issue; this was even before they got their suit together. And then they
found the three couples. You know, they would go to meetings and talk about
what they wanted to do, and these three couples eventually came forward.
They're very interesting people and they had to be people strong enough to put
up with a lot of criticism and a lot of public exposure and so on.

For example, one of them, a pair of women who had lived together in the rural
town of Milton for about 30 years, one a nurse, one a mathematics professor.
They had a Christmas tree farm; they'd been part of their church, you know,
just a valuable member of the community. Well, they heard about this and they
said, `Well, why not?' You know, they hadn't been active in gay rights stuff
before, but they thought, `Well, why shouldn't we?' And they joined the
lawsuit and, you know, they went down to their town clerk, you know, who is
someone they knew, and, you know, he was very friendly and polite and
everything but he had to deny them their marriage license. And that formed
the basis of the suit, along with the other two couples.

GROSS: Is one of the differences between civil unions and gay marriage that
marriage in one state has to be recognized by other states, whereas civil
unions do not?

Mr. MOATS: Yes, that's one of the big differences. And the fact is that so
many states, such as Ohio, they've passed laws which refused to recognize any
gay marriage from another state. And so even a marriage law will face
obstacles in other states. And so it's not as easy as just passing a marriage
law. There's a complicated struggle ahead.

GROSS: Nevertheless, if marriage would theoretically be recognized in any
state that hadn't outlawed gay marriage and civil unions aren't going to be
recognized in states outside of the state that it's happened in, isn't that a
significant difference that makes it separate and unequal?

Mr. MOATS: Yes, that's exactly right. It's a significant difference, and
that is one of the main arguments that the freedom-to-marry people make when
they say civil unions is not adequate.

GROSS: How did your editorial board at the Rutland Herald arrive at its
position supporting civil unions in your state, Vermont?

Mr. MOATS: Well, editorial board is kind of an exaggeration. I'm the
editorial writer so there really is--we have a board and we meet every once in
a while and we talk about stuff, but this was basically my call. And I had
support from the publisher, who saw this as basically a continuation of the
paper's tradition as a supporter of civil rights and so on. And so I just
wrote what I thought I needed to write and I really was never exposed to any
of the unhappiness that might've existed in the advertising department or the
circulation department. You know, people in those departments would hear from
unhappy readers or advertisers, but I was never exposed to any of that so I
just did what I thought needed to be done.

GROSS: How did you arrive at your decision to support civil unions?

Mr. MOATS: The court ruling came out that day in December '99. And I
downloaded a copy and I read it and I thought, `Well, there's just no way I
can not be for this.' It's a very strong argument for equal rights and it was
a civil rights issue that was very plain to me. It just seemed clear to me,
after reading the court decision, that this is the way that we needed to go.

GROSS: Is there anything you'd like to quote from one of your own editorials
that would kind of sum up for us the position you struck and the language that
you used to make your case to your readers?

Mr. MOATS: I don't have my editorials right here before me, but there's one
point that I tried to make during this time and that is that it was important
during this debate to look at the opposition and to recognize that there's
legitimacy to the opposition on both sides. And of course, there was a lot of
bigotry and stuff in opposition and I'm not talking about that, but there was
also legitimate opposition from--for example, the Catholic Church was strongly
opposed. And I grew up Catholic and I know what the Church teaches about
sexuality, and I understand that that's a real and legitimate moral teaching
that people try to follow. You know, they struggle with it sometimes, but
this is a legitimate point of view.

And, on the other side, you have people coming forward, seeking recognition
for the most important relationship in their life and seeking recognition and
respect for who they are. And this is not some kind of nefarious gay agenda.
This is just people trying to live their lives, and so that needs to be
recognized also. And when you recognize the humanity of the other side,
tempers can cool down and you can deal with each other with respect and come
to some kind of decent outcome. And I tried to help that happen in Vermont.

GROSS: My guest is David Moats, author of the new book "Civil Wars: A Battle
for Gay Marriage." We'll talk more after a break. This is FRESH AIR.

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GROSS: My guest is David Moats, author of the new book "Civil Wars," the
story of how Vermont became the first state to legalize civil unions for gay
and lesbian couples. Moats is the editorial page editor of the Rutland Herald
in Vermont and won a Pulitzer Prize for his editorials in support of civil
unions.

In your book "Civil Wars," you describe the struggle to legalize civil unions
for gay and lesbian couples as being similar to some of the big battles in the
civil rights movement of the 1960s. And, you know, I know you weren't a
practicing journalist at the time, but, you know, in looking back, you
might've wondered, well, if you were practicing journalism then, what would
your responsibility be to give kind of equal say to both sides? So I'm
wondering if you thought about that issue and if you also thought about it in
terms of, you know, the struggle for civil unions in Vermont, whether you saw,
you know, both of the sides as equal in terms of the amount of say that they
should have in your paper?

Mr. MOATS: Well, for example, with Letters to the Editor, I drew a line with
letters that were outright homophobic and just as--I don't know that during
the civil rights era I would need to give equal say to racists. But even
during that time, you know, opponents to civil rights would make arguments
related to federalism, you know, and states' rights and so on. And those were
the kinds of arguments that you had to engage in. And in the same way with
gay rights, you know, there are people that are just full of hate, you know,
and that's kind of off the chart, you know. There's really no way to answer
that. But then there are, however, arguments about whether the courts ought
to be doing this or, you know, the Constitution really justifies this or not.
And those are real arguments that can be engaged in.

There's also an argument about, you know, how much a role religion ought to
play in a secular society, of whatever religion. I mean, at the Legislature
in Vermont, we'd have the Catholic bishop coming in one day and saying that he
opposed civil unions. Then the next day the Episcopal bishop would come in
and say she supported it. And so, in a way, legislators were in a position,
`Well, what do we do? Who do we believe?' In fact, you're not supposed to
believe either. You're not supposed to be crafting a law on the basis of what
a religious person says. You're supposed to be crafting a law on the basis of
the Constitution. And so all of these things can be discussed. But, you're
right, I think, you know, certain people take themselves out of the discussion
when they come forward and they're full of hate.

GROSS: Looking ahead, how much of a role do you think gay marriage is going
to play in the presidential election?

Mr. MOATS: I am not sure. I think the right wing is going to push it hard,
and we'll see how much President Bush wants to deal with it. The interesting
thing is that civil union now has become sort of the moderate alterative, and
most of the Democratic candidates are in favor of civil union as opposed to
gay marriage. Well, in fact, now gay marriage is going to be the law in
Massachusetts, so I don't know what they'll have to say about that. So it's
kind of a volatile one that can cut both ways. I think President Bush is
reluctant to deal with it because he doesn't want to come off looking
mean-spirited because that's the danger. You try to write something like that
into the law and introducing an amendment to the Constitution for the purpose
of depriving someone of his or her rights, that's kind of unusual. And a lot
of people are going to think that's a very bad idea.

GROSS: What do you think the odds are that the issue of gay marriage and gay
civil unions will remain a state-to-state issue or, you know, that it will
become a federal issue handled through the courts, a constitutional amendment
or Congress?

Mr. MOATS: I think the odds are it's going to be a state-to-state issue for
the foreseeable future, but the constitutional amendment is going to make it a
federal issue. It remains to be seen whether the Republicans--how hard they
want to push that or not. That's what would make it a federal issue, and it
would be a pretty divisive one, I think.

GROSS: I want to thank you so much for talking with us.

Mr. MOATS: Well, thank you for having me.

GROSS: David Moats is the editorial page editor of the Rutland Herald in
Vermont. His new book is called "Civil Wars: A Battle for Gay Marriage."

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(Credits)

GROSS: I'm Terry Gross.
Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.