Gina Smith (left) and Heidi Norton (right)

BOSTON (WOMENSENEWS)–Avery Nortonsmith might only be 4 years old, but his social calendar is packed.

Gospel choir, playing with Legos and looking after his baby brother, Quinn, keep him pretty busy. Saturdays are reserved for “polka and pancakes,” when his moms tune the radio to the local polka station and the family dances while making breakfast. Despite Avery’s happiness, thousands of strangers are fighting to stop his parents, Gina Smith and Heidi Norton, from filling in the one missing link in his family’s life: marriage.

Partners Norton and Smith have been together for 11 years, and have traveled every avenue to make their personal commitment to each other reflect a legal marriage. But barriers still exist. Without a civil union, the couple cannot, for example, benefit from each other’s Social Security and automatically assume the authority to instruct a funeral director how to handle the deceased partner’s remains.

“We have a legal relationship to the boys, but we don’t have a legal relationship to each other,” Smith said. “Our family has all of the same elements that any other family has. The state shouldn’t stand in the way of us taking care of each other.”

Norton and Smith and six other same-sex couples are suing the Commonwealth of Massachusetts for denying them the right to marry. Their lawyers at Gay and Lesbian Advocates and Defenders are optimistic that a victory in the case would set a precedent in Massachusetts courts to allow same-sex marriage, a big step beyond what neighboring Vermont did in 1999.

Vermont’s legislature legalized civil unions between same-sex couples, giving them many of the legal rights of married couples while still reserving marriage for heterosexual partners. The gay couples’ lawyers at GLAD want all people to have access to marriage and is basing its argument on anti-discrimination laws, since the seven couples’ requests for marriage licenses were turned down by the state Department of Public Health based on their sexual orientation.

“We’ve seen through history that separate is never equal,” said GLAD attorney Jennifer Levi. “There’s no reason to have a separate institution for same-sex couples.”

Activist Courts in Tug-of-War with Legislature Considering Gay-Marriage Ban

Both sides presented their arguments March 12 before a Suffolk County Superior Court judge, but an appeal to the state Supreme Judicial Court is likely regardless of the judge’s decision. Considering that court’s traditionally liberal track record on gay rights issues, gay-marriage advocates are hopeful.

“I’m optimistic that the court will understand the need to protect these families just like any other families,” Levi said.

But Massachusetts is locked in a tug-of-war between a court system that could favor same-sex marriage rights and a legislature that is considering laws that would deny them.

The state’s Supreme Judicial Court recently nullified municipal laws extending benefits to domestic partners in the cities of Cambridge and Brookline, due to conflicts with state law. But justices encouraged supporters of the cause to obtain same-sex marriage rights through other avenues.

While the gay couples’ case, Goodridge v. Massachusetts Department of Public Health, is inching its way through the courts, the gay rights attorney remains cautiously optimistic of eventual success. The Supreme Judicial Court has been fair to us, said GLAD attorney Mary Bonauto, yet she added: “I don’t think any of this will be a cake-walk.”

In counterpoint to the court battles, a web of groups in Massachusetts continues its fight in the state legislature to pass laws that would keep marriage a heterosexual institution.

The push to ban gay marriage is led by Massachusetts Citizens for Marriage, which in December collected enough signatures to require legislators to consider a petition that would define marriage as a joining of one woman and one man, effectively barring same-sex unions. Non-traditional couples, including unmarried heterosexuals who live together, would be denied certain benefits, such as the right to be treated as an economic unit and the right to receive pension if one partner should die. Rights such as access to school records, hospital visitations and medical decision-making for partners and dependents would become more complicated, if not outright impossible.

If both the state Senate and House approve the initiative by at least 25 percent in two consecutive meetings, voters will decide in 2004 whether to ban gay marriage in an amendment to the state’s constitution, which would make the law official.

“People know marriage to be between a man and a woman,” said Bryan Rudnick, the 23-year-old chairman of the group. “That’s the way it has always been and that’s the way it will be.”

The state’s legislature has also considered a bill that would make the state one of the least supportive of gay and lesbian unions by denying benefits and other rights to domestic partners, regardless of sexual orientation. Opponents call the bill a “Super DOMA” because it goes beyond restrictions set forth in the 1996 federal Defense of Marriage Act, which denies recognition of same-sex marriages and gives states the right to not recognize marriage licenses issued to homosexual couples in other states. However, reflecting political to-and-fro over the issue, some state senators are considering a bill that would provide health insurance for domestic partners and children of state and city employees.

Gay Marriage Is Controversial Issue in Many States

One event indicates that the one side may have had enough. On March 11, Massachusetts House Ways and Means Chairman John Rogers, who has introduced bills banning same-sex unions in the past, announced that he would not sponsor another during this legislative session.

During the 1990s, bills banning same-sex marriage were proposed in almost all state legislatures, according to the American Civil Liberties Union. Similar legislation is currently pending in New Hampshire, Missouri and Wyoming. However, California, Washington, New York and Rhode Island are considering legalizing civil unions, and California and Hawaii offer partner benefits to same-sex couples. Vermont is the only state where same-sex civil unions are legal, but because of the federal Defense of Marriage Act, couples married there might only be recognized as such in Vermont.

And although marriage and adoption rights are separate, mothers like Gina Smith and Heidi Norton–as well as three other couples in the GLAD lawsuit with children–believe that the legalization of gay marriage would add additional legal stature to their rights as parents.

In Massachusetts, a second parent may adopt a child and share the same rights as the parent in the first adoption. Smith and Norton did this with Quinn and Avery, but nevertheless would rather have the added credibility to their stature that marriage would bring. In states without adoption rights, unmarried parents might have difficulty accessing their child’s student records or making decisions for them in case of medical emergency.

Utah, Mississippi, Florida and Arkansas have laws banning adoption by same-sex couples, according to the Funders for Lesbian and Gay Issues, an organization that advocates financial support for gay rights groups from philanthropic organizations. One Florida couple’s fight to keep its 10-year-old son made headlines around the country this month.

For families like Norton and Smith’s, legalizing marriage for same-sex partners can’t come to Massachusetts too soon.

“We want to take care of our kids, to help ensure a secure future for them and to be able to take care of each other,” Smith said. “We don’t want to have to depend on the kindness of strangers.

“Like everyone, we grew up talking about getting married,” she added. “When you find the person you want to be married to, you want to be able to take care of that person, too.”

Megan Cooley is community news editor at The Coeur d’Alene Press in Coeur d’Alene, Idaho. She recently moved from Boston, where she covered community, social and women’s issues.

For more information:

Freedom to Marry Coalition:

Gay and Lesbian Advocates and Defenders:

Massachusetts Citizens for Marriage: