Panic as Pat and Joe seek to tie the knot

Hawaii is likely to allow a gay couple to wed, with legal implications for the whole US, writes David Usborne in Honolulu
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The Independent Online
Pat Lagon and Joe Melillo may not be young lovebirds any more but after 19 years in a relationship, they would very much like to say the magic words "I do" and , with luck, live happily ever after in wedded bliss.Pat and Joe are both men. And by attempting to pursue that most simple of dreams they have stirred a legal, cultural and political tempest so intense that they barely know how to react.

It began back in December 1990, when, with an almost naive gesture of their commitment to one another, they paid a visit to the Hawaii Department of Health to ask for a marriage certificate. Predictably, they were turned down. But then, against the advice even of their own lawyer, they decided to go to the courts to argue for the right to become spliced, not as man and woman, but as man and man. Their quest thus became one not just for their own happiness, but for the legalisation of single-sex marriage.

This week, Pat and Joe, who together operate a small screen-printing business in a warehouse on Pearl Harbor, will begin what promises to be the last furlong of their struggle. If all goes as the legal experts predict, they may emerge victorious from the process before the end of next year. They will be free at last to marry one another and, they hope, raise children. Hawaii, and eventually perhaps all of the US, will meanwhile be forced to recognise marriages between people of the same gender.

Not everyone is wishing them luck. Across the land, conservatives are warning that such a decision would spell the ultimate corruption of the sacred institution of heterosexual marriage. What especially terrifies them are the possible national consequences. Under the "full faith and credit" provisions of the US constitution, states have to recognise the legal decisions of others in the union unless they can show some strong public-protection reason not to do so. If gay couples are allowed to wed in Hawaii, their new-found status should find recognition everywhere.

A measure of the panic is the response of politicians on the mainland. For most of last week, the US Senate was labouring over the so-called Defence of Marriage Act (Doma). Passed last month by the House of representatives, it is an attempt to limit the effect of the expected Hawaii decision by pledging to withhold from gay married couples federal rights, mostly tax-related, extended to husbands and wives, and by giving individual states the right to refuse to recognise single-sex marriages. Even President Clinton, once a defender of gay rights, has promised to sign the Doma bill.

The states themselves have also been stampeding to pass pre-emptive legislation. Not all have managed, however. Of the 36 states that have considered passage of anti-gay marriage legislation, only 16 have successfully done so. Even those laws may never stand consitutional scrutiny by the US Supreme Court. Acceptance of same-sex marriage in Hawaii would probably mean eventual recognition across the country, even it takes years of argument, as it did to legalise interracial marriages. (That was only settled with a Supreme Court ruling against Virginia in 1967).

That they might actually win their battle only became apparent to Pat and Joe and their lawyer, Daniel Foley, in May 1993, when the Hawaii Supreme Court provisionally ruled that by denying them a marriage licence Hawaii was violating the anti-discrimination clauses of its own state constitution. The court gave the state one last chance to prove before a lower court that it has a "compelling interest" to deny gays the right to marry. That hearing opens in a circuit court here on Tuesday.

Most expect the "compelling interest" to concern children, and the dangers that may exist in their being raised by single-sex couples. "All things being equal, the best surroundings for a child is within a family with a father and a mother," Hawaii's Attorney General, Margery Bronster, recently asserted. The state is widely expected to lose, however. Even if it appeals again to the Hawaii Supreme Court - there is no recourse on matters of this kind to the federal Supreme Court in Washington - Pat and Joe may finally win within the next 18 months.

Daniel Foley, who had at first been reluctant to take on the case because he was certain it would fail, is now optimistic. "The religious right are my biggest fans," he said. "Why would all this be going on in statehouses around the country if they weren't expecting us to prevail?" He believes that victory will mean a civil rights watershed akin to the 1963 Brown vs Board of Education ruling that introduced desegregation in America and Roe vs Wade, which established women's right to abortion.

"We've already won," Joe, 48, insisted in an interview at work last week. "This is just the state trying to show to the people that they're trying to do something." Clearly exhausted by the pressures that the case has brought upon them, Pat and Joe cheer themselves by contemplating their plans. They intend to get married the instant the final ruling in their favour comes down, preferably by the very judge that delivers it. Pat, who is 39, envisages a massive wedding party some time later, with 2,000 guests.

To visit the pair at their somewhat scruffy warehouse is to discover an almost comical disjuncture between their very personal and quite touching ambitions for one another and the nigh-satanical image that is conjured of them by their conservative foes. Their printing business - mostly T- shirts - has been struggling recently, and they are moving it to smaller premises. A pair of cockatoos scream for attention from their cage, which stands next to Joe's prized purple Harley-Davidson, used only for special occasions. Financial prospects might improve with interest in their story coming from Hollywood, and still-vague plans, if all ends well, to open a resort for gay couples coming to Hawaii to tie the knot.

"We're not trying to change society," the mildly-camp Joe explained. "When it is all over people will see that the sky hasn't fallen, and the earth hasn't come to an end." He is especially exasperated that those who oppose gay marriage seem fixated with what homosexuals do in bed. "It is not about sex. You don't have to get married to have sex with somebody. And nobody asks heterosexual couples what they do in bed together. If they practise sodomy it is a private subject."

"You can see that this is hardly some kind of well-financed compaign," Mr Foley noted. "This is no plot to destroy Western civilisation and bring about some sort of cultural meltdown. These are simply two men who are in love with one another and want to get married."