The Struggle for Marriage Equality: A U.S. Update
I have made clear my support for marriage equality. But this is not a post making the argument for legal recognition of same-sex marriages. This is simply a report on the state of the struggle as of November of 2009.
Hawai’i. In 1993, the Hawai’ian State Supreme Court rules that the state law limiting civil marriage to heterosexual couples is unconstitutional unless the state can show (1) compelling state interests for the discrimination of same-sex couples and (2) that the limitation is narrowly drawn so that other rights are not impacted. This case causes such panic that the U.S. Congress passes the so-called Defense of Marriage Act (DOMA) which forbids federal law from recognizing same-sex marriages–and any couples married in states which do recognize such from receiving any of the federal benefits which are given heterosexual married couples. This “preemptive strike” was designed by the Republican controlled Congress to cause problems for Pres. Bill Clinton (D)’s reelection campaign against Sen. Bob Dole (R-KS), since it was presumed that Clinton would veto the legislation. Instead, on 21 Sept. 1996, Pres. Clinton signed DOMA into law and went on to defeat Dole in November. On 03 November 1998, Hawai’i voters amend their state consitution to allow the Hawai’i state legislature to limit marriage to heterosexual couples. In light of this, the Hawai’ian Supreme Court dismissed the suit challenging that law on 06 December 1998–so it was never decided whether the law would have been unconstitutional or not. As of this writing, there have been no further efforts by marriage equality advocates to change the laws in Hawai’i in their favor and marriage remains reserved for opposite sex couples in the Aloha State. Hawai’i has recognited “Reciprocal Benefits” for same-sex couples, having some of the legal recognitions of marriage, since 1997.
Massachussetts. On 18 November 2003, the MA State Supreme Court ruled that banning same-sex mar riage violated the state constitution. On 17 May 2004 same-sex marriage became legal in MA. There was an abortive attempt in February 2004 to amend the state constitution to ban same-sex marriage, but it was never completed and there have been no further attempts. The experience in MA seems to show that acceptance of marriage equality by a majority of the general public takes about two (2) years.
California. California began recognizing same-sex Domestic Partnerships in 2000. At first these Domestic Partnerships had only a fraction of the legal rights of civil marriage, but they were expanded over time. The mayor of San Francisco began offering same-sex marriage licenses in 2003 until the courts stopped him and ruled those marriages invalid. 29 September 2005, Gov. Arnold Schwarzenegger (R-CA) vetoes a legislative bill to legalize same-sex marriage. He vetoed a second such bill on 12 October 2007. 15 May 2008, the Supreme Court of CA rules that the state’s ban on same-sex marriage is unconstitutional. Gay and lesbian couples begin to get married on 16 June 2008. 04 November 2008, CA voters pass Proposition 8, a ballot initiative that amends the state Constitution to outlaw same-sex marriage–it takes effect 05 November 2008 and marriage licenses to same-sex couples cease that day. A legal challenge to the law, claiming that this is more than an amendment, but a major revision of the Constitution (and thus cannot be enacted by simply ballot measure) is rejected by the CA Supreme Court (26 May 2009)–but the Court says that those marriages performed in the few months that same-sex marriage was equal will continue to be valid. 11 October 2009, CA Gov. Schwarzenegger signs into law the recognition in CA of same-sex marriages performed in other states. Currently, marriage equality advocates are debating whether to try to repeal Proposition 8 in 2010 or wait until 2012 when electoral turnout will be greater because of the presidential election. The 2012 date would give both advocates and opponents of same-sex marriage more time to mobilize supporters and try to change minds.
Connecticut. Connecticut passed a Civil Unions law in 2005. On 10 October 2008, the Connecticut Supreme Court ruled that discriminating against same-sex couples in civil marriage violated the state constitution. The court ordered the legislature to legalize same-sex marriage. 12 November 2008, same-sex marriages began in CT. 23 April 2009, Gov. Jodi Rell (R-CT) signed into law the statutory recognition of same-sex marriages previously recognized only by court order. On the same day, Gov. Rell signed a law that would convert existing same-sex civil unions into marriages beginning 01 October 2010.
Vermont. On 20 December 1999, the VT State Supreme Court rules that denial of benefits and rights “incidental to marriage” to same-sex couples violates the states “common benefits” clause. In response, the VT legislature created a same-sex “civil unions” law in 2000 which grants same-sex couples the legal and civil rights and benefits of marriage, but without the name “marriage.” This civil unions law is signed by then-Gov. Howard Dean(D-VT)–who later wishes he had pushed the legislature for full marriage equality. The experience of VT with civil unions–and of many residents going to nearby MA for marriage ceremonies–over a 5 year period, leads for a strong push for same-sex marriage recognition, but this is opposed by Gov. Jim Douglas (R-V). On 06 April 2009, the Vermont General Assembly passed legislation recognizing same sex marriages, but this was vetoed the same day by Gov. Douglas. On 07 April 2009, the Vermont General Assembly overrode the governor’s veto with a two-thirds majority. On 1 Sept. 2009, same-sex marriages began in Vermont.
Iowa. On 03 April 2009, the Iowa State Supreme Court declared that civil marriage could not be restricted to heterosexual couples and, thus, recognized the legality of same-sex marriage. An attempt to repeal this decision is underway, but amending the state constitution is not easy in IA. An amendment must pass both houses of the state legislature two consecutive years running and then be confirmed by popular ballot. Democrats currently control both houses of the state legislatur and the leadership has vowed to prevent any such legislation from reaching the floor. If the Republicans were to win back both houses of the state legislature in 2010, they could not introduce legislation to amend the constitution to ban same-sex marriage until January 2011. It would have to pass both chambers in 2011 and 2o12 and then be sent for ballot ratification. So, the earliest a repeal of marriage equality in IA could occur would be 2013 and marriage equality advocates are hopeful that state residents will be “used to” same-sex marriage by then and not go along with repeal. The longer the law is on the book, the greater its chances for permanence. As of 27 April 2009, same-sex marriages have been legally performed in IA.
Maine. In 2004, Maine adopted a Domestic Parnerships law that granted same-sex couples some of the rights and benefits of marriage. 06 May 2009, Maine Gov. Baldacci signed the Marriage Equality Bill which would have allowed same sex marriages to begin on 11 September 2009. However, Maine law allows for a People’s Veto by ballot initiative. That initiative, called Question 1, hired the same firms that successfully repealed CA’s marriage equality through Proposition 8. But marriage equality advocates were confident that they could defeat Q 1–and, initially, on election night 03 November, it looked like Marriage Equality won, but as the night wore on, the People’s Veto won 53-47%. Thus, same-sex marriage was repealed without ever taking effect in ME on 03 November 2009. Marriage Equality advocates are not sure where to start next in ME.
New Hampshire. Same sex civil unions are legalized in 2008. On 23 March 2009, the NH House of Representatives passes legislation recognizing same-sex marriage. 29 April, the NH Senate passes same-sex marriage with minor amendments designed to protect the religious liberty of churches, synagogues, mosques, etc. which have religious objections to same-sex marriage. 06 May, the NH House concurs with the amendments of the senate and the bill is sent to Gov. John Lynch (R-NH). Lynch had previously said he would veto such legislation and there are not enough votes to override, but the amendments lead him to reconsider. Lynch says he will sign the bill with a few further protections for religious liberty and outlines them. On 03 June 2009, Lynch signs same-sex marriage into law–effective 01 January 2010. There is an attempt at repeal in NH both by legislature and by ballot–they cannot start until 01 January 2010. Because the law was passed so narrowly, nothing should be taken for granted. Whether NH’s marriage equality law stays past January 2010 is yet to be decided.
New York. New York passed legislation in 05 that recognized same-sex Domestic Partnerships with limited rights. In 2007, New York’s State Supreme Court ruled that same-sex marriages performed elsewhere must be recognized by New York. On 12 May 2009, the New York State Assembly (lower House) passed a law allowing same-sex marriages in New York and sent it to the New York Senate. The New York Senate has 32 Democrats and 30 Republicans and it would take 32 votes to pass same-sex marriage. The Senate has vowed a vote on the bill before the end of the year–presumably the delay is because they are currently 2 votes short. If the law passes the Senate, Gov. David Paterson has promised to sign it–has, in fact, been a strong champion of marriage equality. Gov. Paterson faces a tough re-election fight in 2010 and it is not clear if any successor would sign the bill, so marriage equality advocates are pushing hard for passage this year. Ballot initiatives are illegal in New York, so repeal would be more difficult–and the fact that NY already recognizes same-sex marriages performed out of state argues for the staying power of marriage equality if it can clear the senate this year.
New Jersey. New Jersey legally recognized same-sex civil unions beginning in 2007 after the NJ Supreme Court ruled that same-sex couples were entitled to all the legal benefits of marriage. Momentum has been growing for full marriage equality, but, originally advocates had not planned to initiate legislation until early 2010. However, the defeat of incumbent Gov. Jon Corzine (D-NJ) by Atty. Gen. Bob Christie (R-NJ) on 03 Nov. ’09 has led to a hurried run at the legislature. Corzine is a GLBT advocate, whereas Christie has already promised to veto any such legislation. NJ opinion is about evenly split. If NJ passes same-sex marriage this year, Corzine will sign the law. If not, they either have to wait until Christie is defeated, or build up enough support to override his veto.
Washington, D.C. In 1992, Domestic Partnerships for same-sex couples were recognized in the District of Columbia. Over the years these have been expanded ever closer to those of heterosexual marriage. D.C. recognizes same-sex marriages performed elsewhere. A bill to legally perform same-sex marriages in the nation’s capital cleared a key committee 4-1 this past Tues. ’10 Nov. 2009. It is due to be voted on by the full city council on 01 Dec. and 10 of the 13 council members are co-sponsors of the bill, so passage is assured. However, there may be a ballot initiative for repeal here as in ME.
Washington (state). Domestic partnerships were approved in 2007 and expanded step-by-step until they now are civil marriage in all but name. On 03 November, Washington residents voted by ballot initiative to keep this “all but marriage” law. If the pattern of acceptance holds, Washington state will be ready to recognize same-sex marriages by 2012–especially if the legislature votes before then to recognize same-sex marriages performed elsewhere.
In 2004, as part of the effort to “re”-elect Pres. George W. Bush (R), who was in a very tight race with Sen. John F. Kerry (D-MA), Republicans pushed to drive up the conservatives at the polls by placing ballot initiatives in key states that would ban same-sex marriage constitutionally. Between ’04 and ’08, over 20 states adopted amendments banning same-sex marriage. Now, 2 of the states that banned same-sex marriage by constitutional amendment in ’04, are reconsidering.
Oregon. Oregon was one of many states in ’04 which voted to amend its constitution to ban same-sex marriage, but, unlike some other states (e.g., Kentucky), OR did not ban civil unions or domestic partnerships, too. In 2007, the OR state legislature passed legislation banning discrimination against LGBT persons and also allowed same-sex couples to register as domestic partners with limited benefits. Marriage equality advocates are building on this base and are working for consciousness raising throughout the state in advance of plans to attempt to amend the state constitution, again, granting marriage equality in 2012.
Michigan. Michigan was another of the many states which used ballot referenda to amend their constitutions to ban same-sex marriage in ’04. But Speaker of the House Pro Tem (State Rep.) Pam Byrnes made good on a campaign promise last year and in June 2009 introduced an amendment to repeal the ban on same-sex marriage. If the bill receives 2/3 support from both the state house and state senate, then it will go to voters for repeal in 2010. I expect it to be a very close vote.
There are also civil unions or domestic partnerships in Nevada, Maryland, Colorado, and Wisconsin–which makes each of these states likely to be the next frontiers in the struggle for marriage equality.
In June, the Respect Marriage Act was introduced into both chambers of the U.S. Congress. If approved, the Respect Marriage Act would repeal the 1996 Defense of Marriage Act (DOMA), and allow the federal government to recognize same-sex marriages performed in the states that have them.
With the current makeup of the U.S. Supreme Court, I understand why marriage equality advocates are reluctant to challenge DOMA or state laws banning same-sex marriage in federal court. I would like to see a friendlier Supreme Court makeup, first. But it seems to me (a non-lawyer) that a good legal case can be made for ruling that banning same-sex marriage is unconstitutional. 1) Loving v. Virginia (1967) struck down state bans on interracial marriage–bans which, at that time, still existed in 13 states and the District of Columbia. Loving v. Virginia established that marriage is a natural right and that customs and prejudices cannot restrict the liberties of two people seeking the bonds of marriage. Now, to date, that has only been applied to heterosexual couples. 2) Opponents of same-sex marriage argue that same-sex couples have never been recognized as marriage. They compare it to other cases in which the courts have forbidden the relationships to be recognized as valid marriages: cases of incest, or of an adult marrying a minor, or of bestiality. But in Lawrence v. Texas (2003), the Supreme Court struck down the so-called “sodomy laws” of the various states–private homosexual acts between consenting adults cannot be made illegal. Yes, there is far more to marriage than sexuality, much less sex acts, but this decision suggests that the Court already recognizes a difference between same-sex adult couples and the illegitimate relationships which opponents would use as an analogy: incestuous couples, liasons between an adult and a minor, liasons between a human and an animal, etc. If the law already distinguishes between same-sex couples (whose liberties to be a couple cannot be infringed) and other non-heterosexual couples (whose liasons can be declared illegal), then it seems that the argument made in Loving v. Virginia for heterosexual interracial marriages should apply to same-sex marriages. 3) The argument that marriage must entail the possibility of progeny fails on several counts–a. We would not marry any couple where the woman was past menopause or the man had any reasons to be infertile if the possibility of children were definitive of marriage. b. Just as heterosexual married couples can adopt children or (now) use hi-tech means to become pregnant or hire a surrogate, so those options are also open to the same-sex couple, so that even if we consider children to be a usual component of marriage, same-sex couples are not thereby prohibited. 4) The argument that heterosexuality is a traditional component of the definition of civil marriage is irrelevant since definitions of marriage have changed over time. Once marriages had to be arranged–and girls were married at ages we would now consider to be child sexual abuse. Once interracial marriages or marriages between persons of different religious persuasions were considered null and void, but now they are not. There is no reason that marriage cannot now evolve to include same-sex marriage.
If the Supreme Court were to rule in such a fashion, all the current state laws prohibiting same-sex marriage would be struck down. Depending on how fast the makeup of the court changes, and who is confirmed (and how quickly) in judicial openings, I would think that such a ruling might occur sometime in the next decade–prior to 2020. That’s my best guess. In the meantime, the state-by-state struggles continue.
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