cover_story (2006-42)

Bill Myers and Bill Folley say their marriage is alive and well, despite legal issues. Mr. Big agrees.

The History of Getting Hitched

The historical institution and legal contract solemnizing the relationship of one man and one woman shall be the only legally recognized marital contract in this state. Any policy of law or judicial interpretation, purporting to define marriage as anything other than the historical institution and legal contract between one man and one woman, is contrary to the public policy of this state and shall be void and unenforceable in Tennessee. If another state or foreign jurisdiction issues a license for persons to marry and if such marriage is prohibited in this state by the provisions of this section, then the marriage shall be void and unenforceable in this state.

They could come to Tennessee and claim rights. That’s what I’m afraid of .

Bill Folley and Bill Myers were married in a humble city clerk’s office in Worcester, Mass. But their memories of the event would be no more indelible had they taken vows before an archbishop at Westminster Abbey itself.

“We drove into town thinking it would be a paperwork day, that we’d just go and apply for a license,” says Myers, a stocky 43-year-old television producer with a fine shock of hair in mid-transition between blonde and silvery gray. “Next thing we know, we’re at the courthouse, getting a waiver for the mandatory three-day waiting period they usually have for all couples.

“I love telling the courthouse story, because we went over there and everyone was all serious,” Myers continues. “There were all these lawyers, people talking to their lawyers, criminals, all very serious. We’re sitting there, and we’re nervous and we’re thinking ‘What’s the judge going to say to us?’ And then we were the first people called. We go up there and she asks, ‘Do you swear you’re William Myers?’ ‘Do you swear you’re William Folley?’ We’re like ‘Yes ma’am.’ And then all of a sudden she looks up from her paperwork and she’s got this big smile on her face and she says ‘Congratulations.’ And that was the end of it; it was so serious until we got the waiver. We went back and got married in the clerk’s office that day.”

A week later, the couple held a small ceremony back at their home in Connecticut, where they ate wedding cake and shared the moment with friends and family, the two of them beaming incessantly, grinning and showing off a hard-won marriage certificate to all who would see.

“When we had that piece of paper in our hands with our names and our parents’ names, signed by the Commonwealth of Massachusetts, it felt really powerful,” says Folley, a boyishly handsome 46-year-old M.D. “When we walked out of the courthouse with it, I knew for the first time why the other side doesn’t want us to be married. There was this incredible sense, like we’d declared to the whole world that we were a couple for everyone to see.

“Maybe for a lot of straight folks, it’s just a tradition. But for us there was something really powerful about saying that we are a couple and we plan to spend our lives together.”

That was in spring of 2004, shortly after the Supreme Judicial Court of Massachusetts ruled in Goodridge v. Department of Public Health that it was unconstitutional to limit marriage to heterosexual couples alone, thus rendering Massachusetts the first and—so far—only U.S. state to make same-sex marriages legal. A pair of subsequent court decisions—concerning the validity of licenses granted to out-of-state couples—have since cast doubt on whether their union is still recognized by the state in which it took place.

What’s certain is that it isn’t recognized in the place they moved to earlier this year, in the heart of the Bible Belt in socially conservative East Tennessee. Though the state of Tennessee already has a law that defines marriage strictly as the union of one man and one woman, its citizens will vote on Nov. 7 whether to write that definition into the state constitution by means of an amendment, as well.

Still, the two men felt they had little choice when they moved into a well-appointed two-story home in the Bearden area in early 2006; they’re having twins, via surrogate, in February, a process that runs into six-figure costs even if all goes smoothly—which it hasn’t. The couple has had four failed attempts. “It’s expensive to live in Connecticut, and we were literally running out of money,” Myers says. “We wanted to move someplace where all our money wasn’t going to pay our mortgage.”

Adds Folley, “A lot of people tried to stop us from moving, warned us it was a very conservative area. But our neighborhood has been great. We’ve found a church, some wonderful people. This is a place that’s perceived as hostile to gays in the rest of the country, but we feel very accepted within our community.”

Unfortunately for Myers and Folley, and for other couples like them, polls show that the Marriage Protection Amendment will likely pass, putting Tennessee on a list that includes 18 other states that have already prohibited same-sex marriage by constitutional amendment. For the foreseeable future, they will continue to be denied the more than 1,000 federal and state rights and benefits currently extended to most married couples—everything from shared health benefits to bereavement leave to medical power of attorney for one’s spouse.

But some legal experts feel that, despite setbacks, change is inevitable; same-sex marriage will eventually find both legal and social sanction all over the United States, just as it has done in recent years in Canada, the Netherlands, and a handful of other countries, as well as the state of Massachusetts.

“The people who oppose equal marriage, they’re screaming at the sun to keep it from rising,” says Laura Milliken Gray, an attorney who specializes in estate planning, and who has worked extensively with gay couples. “But sooner or later, it is going to rise.” 

To some, the debate is a simple matter of equality; to others, it’s one of morality, faith, tradition, and at least to their way of thinking, pragmatism. But it’s all of that and more. The whole question of who can marry whom begs the larger question of the role of marriage in a contemporary society, and how that role has evolved, often in ways that are at odds with our concepts of “tradition.”

It also brings to a head the issue of how so-called straight society will come to grips with the fact of a minority population that has grown increasingly less willing to brook repression and inequality based on the immutable and inhering condition of sexual preference. “If it was legal for us to be married, none of us would have to be afraid anymore,” says Folley. “If we have the basic civil right to be married… all the other rights will come. We wouldn’t have to be in the closet; it wouldn’t matter anymore. The whole closet would be busted.”

The genesis of Tennessee’s Marriage Protection Amendment was colored by a sordid bit of legislative melodrama straight out of an afternoon soap, or at least the Jerry Springer Show . Brash-talking state senator Jeff Miller, R-Cleveland, sponsored the amendment in 2004, and many observers credit him as the man most responsible for getting it through legislature and onto the ballot in 2006.

But in spring of 2005, Miller was effectively deposed when Brigitte Miller, his wife of 15 years, filed for divorced and charged her husband had been having an affair with a legislative researcher. It’s worth noting that Miller had opposed a bid by fellow Sen. Steve Cohen to include an “adultery clause” in the language of the amendment, stating that “adultery is deemed to be a threat to the institution of marriage and contrary to the public policy of Tennessee.”

Since then, the task of championing the Marriage Protection Amendment has fallen largely to House Republican Leader Bill Dunn of Knoxville, and to Sen. David Fowler from Signal Mountain. (Dunn was asked to comment for this story, but deferred to Fowler as spokesman for the amendment.)

Fowler is also president of Family Action of Tennessee, a family policy council and 501C4 political advocacy group associated with the national Focus on the Family organization. Chief among Family Action of Tennessee’s current advocacy efforts is the Real Marriage initiative, promoting passage of the Marriage Protection Amendment.

Fowler says that, “To change the definition of marriage would have profound social, economic and legal effects, effects that are hard to predict. We believe it’s important the definition go into the constitution to prevent that definition from being changed other than by the people themselves.”

Fowler and his group, which is endorsed by some 120 current office-holders and candidates (including Republican gubernatorial candidate Jim Bryson), stand in unabashed opposition even to most of the line-items—the basic rights and benefits—that supporters of same-sex marriage are seeking in the name of fundamental equality. He notes, for instance, that in the event of legally sanctioned same-sex marriages, “economically, every business would have to provide insurance benefits to gay couples, and that would drive up the cost of insurance.”

And he decries gay parenting, which he calls “a huge social experiment on the well-being of children… We shouldn’t encourage the intentional creation of families without either a mother or father.” He says that studies by groups like the American Pediatric Association, the American Medical Association, and the American Psychological Association that testify to the fitness of most gay and lesbian parents are “statistically absurd. To draw conclusions about a recent phenomenon (gay parenting) is to ignore the obvious—that many problems don’t show up until later in life.”

But for all the talk of economics, social experiments, and statistics, the faith-based component driving Real Marriage (and much of the support for the Marriage Protection Amendment) is still its most conspicuous. Fowler notes that providing insurance benefits to gay couples would also “violate the religious convictions of business owners; the rights of conscience of those who find it objectionable would be squelched.”

He rues the fact that in Massachusetts, Catholic adoption agencies have had to comply with policies permitting adoption by same-sex parents. And the most extensive section of his RealMarriage website is a directory of tips, guidelines and resources for churches and pastors, including “sermon helps,” and plans for a statewide “Marriage Sunday” that asks pastors to “prayerfully consider a message on what God says about marriage.”

“Pastors should throw away their muzzles and replace them with megaphones,” RealMarriage urges church leaders in its guidelines for political activity. “It is far more likely to be struck by lightning twice than for a church to lose their tax-exempt status over political issues.”

Which isn’t to say that pro-amendment forces have a lock on the faithful in Tennessee. Standing in opposition to the Real Marriage initiative is the Tennessee Equality Project (TEP), an organization founded by gay/lesbian activists Rhonda White and Randy Cox in conjunction with lobbyists Jim Schmidt and Jenny Ford. TEP’s initiative opposing the marriage amendment, Vote No on 1, has also been endorsed by dozens of faith leaders and congregations from across the state, the list of which includes a number of pastors and rabbis from the Knoxville area, and which can be found on the initiative’s website at votenoon1tn.com.

Unlike Real Marriage, however, Vote No on 1 and TEP couch most of their rhetoric in the language of equality, not faith. “Morality is about the only card the other side has to play,” says TEP co-founder White. “We’ve asked them several times to debate this publicly, and they’ve refused us every time.”

But despite TEP’s best efforts—which include door-to-door canvassing in major metropolitan areas, town-hall meetings, radio and television campaigns and a series of fund-raising house parties all across the state—White knows the prospects for defeating the Marriage Protection Amendment on Nov. 7 are poor. Similar amendments in other states have all been ratified by overwhelming margins—usually in the neighborhood of a 70 to 30 ratio, with an anti-same-sex marriage amendment in Mississippi receiving a high-water mark of 86 percent of the vote.

“But there are a lot of people out there who ‘get it,’” she says. “It all depends on who shows up at the polls.”

When Denise Cumming and Frances Craig moved from Salt Lake City, Utah, into the new home they built in the Rockford area of rural Blount County, Tenn., they already knew they were something of a neighborhood curiosity. “Every construction worker out here knew that this was going to be ‘those lesbians’ house,’” Cumming says with a chuckle. “Then one day a neighbor came over and asked, in this gruff sort of voice, ‘Are you all gay?’ I said ‘Do you think we’d buy all this property and build a house together if we weren’t a couple?’ And he said, ‘Well, I appreciate your honesty.’

“Our neighbors have all been very nice,” she continues. “Though they’ve probably been disappointed, because Frances and I aren’t very exciting. It’s like, ‘Look! They’re mowing the lawn again.’”

Today the couple live in harmony with neighbors on a lush spread that includes grazing room for five alpacas—rescued from a farmer in Chattanooga—a brand new black Labrador puppy named Junebug, and a raft of green-egg-laying chickens. “Nineteen hens and one rooster named Rufus,” says Craig, smiling. “Now that’s what I call a traditional marriage.”

Though they came from a state with a conservative bent similar to that of East Tennessee—heavily Mormon-influenced Utah already has an amendment prohibiting gay marriage—Craig and Cumming nonetheless experienced some culture shock upon leaving the relatively progressive confines of Salt Lake City. “Salt Lake is much more diverse and eclectic than the rest of Utah,” Craig says. “The ‘gay community’ is very open. Both our employers there offered domestic-partner benefits.”

“There were actually more non-discrimination policies in Salt Lake City,” says Cumming, a non-profit management consultant and self-proclaimed hobby farmer. “This is the first state we’ve ever lived where there’s some fear. We live very openly and honestly, but so many people we know are still in the closet. We’re more conscious of people perceiving us as different here. Our sexuality is more of a day-to-day issue.”

Like Folley and Myers, Craig and Cumming came to Tennessee out of some necessity, when Craig, a pediatric emergency physician, found a job with an area hospital. But they’ve taken hits in the area of domestic-partner benefits, which Knoxville-area employers are disinclined to provide. “Even the little differences,” Cumming notes. “Something as simple as your partner going to use the rec facilities at your job. That’s the kind of thing you notice every day.”

To be sure, none of the issues that confront Cumming and Craig in light of their sexuality are indigenous to Tennessee. Cumming notes that wherever they travel, for instance, they carry legal documents, such as durable power of attorney, should medical misfortune befall either of them. “We’ve had friends who had trouble visiting their partner in the hospital because they ‘weren’t family,’” she says.

But given the apparent likelihood of a ratified Marriage Protection Amendment, and the fact that many employers here are unlikely to defy social convention of their own volition, the couple admit that their time on the Tennessee tax rolls may come to an end. “I don’t know how long we’ll stay in Tennessee,” Craig says. “The thought of growing older, without any legal or financial protections, is frightening.”

(Craig and Cumming recently expressed their feelings on equal marriage issues to Tennessee Senator Bill Frist, an outspoken proponent of a federal amendment to prohibit same-sex marriage, in a very personal, emotionally frank letter to the Senator’s office. They received in return a terse form letter, which thanked them for “contacting me to express your views regarding high fuel prices.”)

In addition to the more than 1,000 federal rights and benefits extended to married couples, another 200 or so are also conferred by the state of Tennessee. Many of those rights and benefits will remain unavailable to same-sex couples so long as the federal DOMA (Defense of Marriage Act) of 1996 remains in effect. Besides declaring that the federal government itself will not recognize same-sex marriages, DOMA also says that states needn’t recognize same-sex marriages performed in other states.

DOMA ensures, for instance, that gays and lesbians won’t inherit social security benefits in the event of a partner’s death. It also ensures that states such as Tennessee have no obligation to honor the vows of a couple like Myers and Folley, whose marital union may be enforceable according to the laws of Massachusetts.

Below the federal level, only Massachusetts recognizes same-sex marriages, while another six states plus the District of Columbia permit domestic partnerships that confer some of the benefits of marriage. In the remaining 43 states, gay and lesbian couples are deprived of innumerable rights which their straight counterparts take for granted: powers of attorney, insurance protections, rights of inheritance.

“I’ve had two cases where someone died, and their same-sex partners ended up with joint ownership of their home with the deceased’s parents because they didn’t know the law,” says Bill Mynatt, a local attorney. “Also, doctors don’t have to, and generally won’t, recognize participation from non-married partners.

“You can resolve a lot of those issues legally, by obtaining general power of attorney,” Mynatt continues. “But your average young gay couple probably doesn’t know anything about that.”

“What we have now is crazy, a patchwork,” says Milliken Gray. “They’re freaking out and passing these repressive laws in some states. But equal marriage is going to happen. It’s already happening in other places.”

It wouldn’t be an overstatement to say that Bill Folley and Bill Myers have gone to extraordinary, even painful lengths to build a family. In addition to the emotional roller coaster of their quest for a sanctioned marriage, they have endured the wait through five rounds of expensive in-vitro fertilization. They’ve also moved from more liberal-minded Connecticut—where they enjoyed limited domestic-partnership benefits—to a state on the verge of reinforcing its long-established public policy with an anti-gay marriage amendment.

But that isn’t all. Tennessee law makes it difficult for both parties in a same-sex couple to be recognized as parents of their children. In the case of birth via surrogate, state law requires that the surrogate relinquish parental rights, and that the partner who is not the child’s natural father seek adoption, subject to a judge’s discretion.

To simplify matters, Folley and Myers will see their children born in California, the surrogate’s home state, where the laws concerning the parental rights of same-sex couples are more readily navigable. When their twins are born, both men’s names will be recorded on the State of California birth certificates, which attorneys have assured them will guarantee most of their basic parental rights in any state.

“We’ve had to plan everything we do to the -nth degree—having kids, all the things other people take for granted,” Folley says. “We had to make sure we have wills. We had to make sure we had power of attorney. We had to go through extra steps to make sure we have the same rights as everyone else. If you’re married, those things are automatic. For us, it’s not.”

In the meantime, it’s still a matter of mystery as to whether their own union is even recognized in Massachusetts, subject to the vagaries of New England jurisprudence. For the couple themselves, however, it’s only a mystery to those who would hold them back.

“I don’t care if it’s been nullified; our marriage is alive and well,” Folley says. “Nothing is going to change just because someone says they ripped up the file. Go ahead, take away our license. We’re still married.”

The History of Getting Hitched

Indeed, there’s a notion in the rhetoric of Marriage Protection Amendment supporters—as well as opponents of same-sex marriage elsewhere—that marriage is a changeless, hidebound institution, handed down via stone tablet from venerable ancestors who knew no other ways than our own.

And further, there’s an undercurrent that marriage is, and should remain, the jealously guarded property of right-thinking heterosexuals—monogamous heterosexuals, preferably, although that particular detail seems to be significantly less important.

But historically, marriage has served different, ever-changing roles in different societies; it has been a relatively fluid institution, rather than an immutable one. In earlier civilizations—and a few modern ones, still—it was perhaps most useful as a means of sorting out rights of inheritance in social milieus where high-status males often had multiple wives, concubines, and even courtesans at their propagative disposal. It’s said that King Solomon of the Old Testament had 200 wives and more than three times as many concubines; biblical patriarch Abraham famously sired Ishmael, one of the earliest prophets of Islam, through a slave girl, before seeing his rightful heir, Isaac, unexpectedly born to Sarah, his post-menopausal wife.

Today, most westerners view marriage as some combination of religious tradition, a vessel for rearing children, a civil union with attendant rights and responsibilities, and a celebration of romantic love. The historical reality is more complicated; marriage was all of these things, and none of them. It has been as much an institution of the times as a timeless institution.

The history of marriage is fraught with anomalies that seem weird, even unseemly when reckoned by the standards of western modernity. Wife sale was permissible and common in rural England until roughly 1870; some early North American Protestant sects refused to sanction marriages through the church because marriage was deemed “too worldly”; as recently as 1930, a dozen states still permitted 12-year-old girls to marry, with parental consent.

Clearly, a certain amount of “redefinition” has taken place with respect to a number of marital practices that were once viewed as traditional, and thankfully so.

Even the more pressing argument that marriage is a vessel for rearing children via heterosexual two-parent homes loses force in light of the fact that heterosexuals as a population seem increasingly uninterested in nuclear families built around marital unions. According to the National Vital Statistics System, the percentage of new mothers who were unwed was 33.8 in 2002, up from 18 percent in 1980, and only eight percent circa 1965. In light of such figures, any policy that discourages two-parent homes of any sort seems puzzling, to say the least.

It’s almost as if gays and lesbians, once excoriated for behaviors deemed too out of the mainstream by “straight” society, have only seen themselves further ostracized as they have pushed for conformity.

Writing for the socially conservative Family Research Council in a brochure entitled “The Slippery Slope of Same-sex Marriage,” writer Timothy Dailey compares same-sex couples seeking marriage rights to a Missouri man who allegedly sought permission to marry his horse. He goes on to declare that many Americans reject “the facile comparison of sexual behavior to an unchangeable characteristic such as race.” For example, roughly 60 percent of black Protestants, he claims, believe sexual orientation can be changed.

All of which points back to the central dilemma that still underlies the high-minded, morally discursive talk of tradition and religious conviction and rearing children, despite decades of social progress: that some people are unwilling to accept the realities of immutable sexual orientation, and continue to cleave to their unwillingness as if it were a matter of conscience, an expression of moral courage.

“People are outraged when a man comes out of the closet after 10 years of being married,” says Beardenite Bill Folley, who traveled to Massachusetts to marry his partner Bill Myers in 2004. “So we’re trying to say, OK, let’s legitimize gay marriage so men who want to be with men can be together, but that’s not okay either. There are some people who just don’t want us to be.”

“You’re either gay, or you’re not gay,” says Tennessee Equality Project co-founder Jenny Ford. “We’re not going to make any progress until we get past the fact that it’s not a choice. Unfortunately, some people aren’t able to face up.”|