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.
November 12, 2009 - Posted by	Michael Westmoreland-White | civil liberties, courts, democracy, family, GLBT issues, homosexuality, human rights., U.S. politics
Just a minor point about Michigan. Not only did our constitutional amendment ban marriage, but also civil unions, domestic partnerships, and probably (if one uses a strict reading) even wills and other estate planning documents between unrelated members of the same sex.
Comment	by	Alan | November 12, 2009
Alan, KY's banned same-sex marriage and all "marriage -like arrangements" which probably precludes any benefits for even hetero-couples not married. Perhaps the far reaching nature of the ban will incline Michiganers to repeal the law. I hope so.
Comment	by	Michael Westmoreland-White | November 13, 2009
We must at all cost prevent a referendum in Washington, DC. don't let them vote on the issue. Too many homophobic black people. That's the only way we will get the right to marry in the Capital. Don't let them vote our rights away!
Comment	by	Stush | November 13, 2009
Stush, I find your comment to be very racist. Maine has very few black people, but enough homophobes to vote your rights away before they even took effect.
Michael, what if the state didn't recognize any marriages? What if the state just recognized civil unions or domestic partnerships for tax and other legal purposes? What if "marriage" were considered a theological concept? What if people went to the court house for civil unions, but if people wanted a marriage, they would go to some religious authority. The state would recognize civil unions between any two people, but churches would do marriages based on their own theological convictions. What would you think of that?
Comment	by	Jonathan Marlowe | November 13, 2009
I think it's a great idea, Jonathan. It's how they do things in Europe. Then all the legal and civil arrangements currently attached to civil marriage would just go to civil unions or domestic partnerships. But I am not sure the state would recognize a civil union/domestic partnership between ANY two people: close relatives (first cousins and closer) would still probably be prohibited, as would adults and minors.
However, that may have already been the road not taken. In the '90s, I proposed that the state get out of the marriage business. But it makes money in the business and the theocrats didn't want to go that route–because they want a legal distinction between heterosexual and same-sex marriages. If it's not too late for this option, then it may be the easiest route to justice for all citizens while protecting religious liberties–and it would restore theological significance to marriage.
I have a problem with making marriage a purely religious institution. The covenant of marriage is not merely one between two people and between those people and their religious group, but it is also between those people and the whole community, regardless of their religious convictions. Without a secular understanding, no one has need to respect the marriage covenant of anyone outside of their religious group. If one or both spouses leave a religious group, their marriage covenant becomes irrelevant.
Now, it may not be the case that marriage does not become so abused when put solely in a theological category, but that is only because people still understand it in a civil way. We shouldn't say one thing and believe another. Marriage as a theological category alone would be a bad system, which I think is why we should not ever pretend to operate on such a system.
The Reformers were right to desacramentalize marriage and view it as a civil institution. The consequence of not doing so would have been total destabilization of post-Catholic marriage. See, for instance, the widespread bigamy amongst the first generation of Anabaptists, as well as other radical sects through the centuries.
Comment	by	NJL | November 14, 2009
I agree with NJL. Marriage was a civil contract long before it was a sacrament or covenant of the Church. Marriage is first and foremost about the orderly distribution of property and parental rights when a person dies. That is a societal wide concern. Due respect, but asking that the State get out of the marriage business is like asking it to get out of the probate business. Or the taxation business. The State exists to keep order, and marriage is a very useful means of providing for social order.
Marriage is also about conjugal love, which is why states allow marriages between people who aren't going to have any children (like my grandmother who re-married when she was in her 60s). It would seem to be a strong argument that the State encourage marriage where there is conjugal love, because conjugal love inevitably entangles people in more aspects of their lives than just sexuality, and we want those other aspects (property, insurance, inheritance, DNR orders, etc.) to be clearly and succinctly regulated.
Instead of asking the State to get out of the marriage business, the Church ought to get out of the marriage business. Clergy should not act as officers of the State when officiating at weddings. That we do is why resistance to gay marriage is so high. We think that marriage belongs to us, when it doesn't. Marriage belongs to secular society too. It only became a sacrament when Innocent III had it declared one, and he did that because he wanted to sink the Church's tentacles even deeper into European society so that the Church would continue to rule the roost. I can't imagine that's a project that either Jonathan or Michael would have much use for.
The Church (read: the clergy) could still counsel people about how to act in their marriages, which is what they did before they had the civil power to marry, and which is what we should do RE: other civil contracts. Hopefully the clergy are urging their parishioners to be honest businessmen as well as faithful spouses! If the State recognizes gay marriage, conservative clergy would still be free to urge same-sex spouses to live celibate marriages.
Comment	by	Marvin | November 15, 2009
Hi Michael. I've long wanted to ask you in particular this question. As a strong supporter of separate spheres for church and state, is marriage a state issue or a church issue?
Comment	by	Doug Johnson | November 15, 2009
NJL, widespread? Maybe you think of Muenster as a widespread city?
Doug, ideally marriage is simply a church issue. But the state has been involved so long that it would probably be impossible to extricate it. When Kate and I were married (20 years ago come January), we were blessed by the church–but the state gave us numerous tax benefits, insurance companies gave us breaks, hospitals gave us rights the non-married don't have. Because of state recognition, if (God-forbid) we divorce, both of us automatically have rights regarding our children unless we surrender them or through bad actions a court takes them away. If, on the other hand, a lesbian couple adopt a child (or have a child by in vitro fertilization, etc.)–if their state even allows them to adopt which some states like FL do not–, a divorce makes it very unclear whether either has any rights to the child.
If a gay couple in a state that doesn't recognize their union as "marriage" has one partner in critical condition in the hospital, the hospital can decide the partner isn't "family" and deny visitation–or the parents or other kind of the patient can do the same.
Someone calculated that there are some 1,000 federal rights alone granted to married couples that couples without marriage licenses don't have. So, as I said to Jonothan, I'd rather the state simply get out of the marriage business. But it shows no inclination to do so and, as long as it doesn't, I want the same rights for gay or lesbian couples as for straight ones. Whether or not churches, synagogues, mosques or temples consider these marriages is their own affair–some marry gay or lesbian couples now without the legal protections (my congregation is one).
Michael, This line of thinking is entirely inconsonant with your usual vigorous defense of church-state separation. Is there a single other example where you would say, this is a church issue (or a state issue), but church and state are intertwined, oh well, let's roll with it? Ought you not be struggling to force the separation?
Marvin, I'm baffled by your statement. Marriage has been around (and been religious) for far, far longer then any sort of concept of the civil or of contract. The idea of something outside the religious has roots in the Roman 'public thing,' in power struggles between pope and emperor, pope and kings, and in the experimental community of Rhode Island, but it's pretty much a brand new thing in 1789 (and marriage has been around a hell of a lot longer than Rome, the medieval church, or Roger Williams).
But maybe since Marvin/NJL and Michael have given opposing answers, they can fight this out!
Comment	by	Old - Doug Johnson | November 16, 2009
I'd love to try to force the separation, Doug. Show me how.
In fact, I think the small government conservatives should support that, too. Look at how much government interference could be eliminated.
But as long as the state issues marriage licenses, I'm going to press for them to be issued to same-sex couples, too.
I was not referring to Muenster, but to the practice of "spirtual marriage," which had some currency in the Radical Reformation, in which a husband could "spiritually" marry another woman if his wife was not re-baptized (or sometimes even if she was). It was one issue of tension in the Radical Reformation, and probably an issue Sattler is rebuking in the Schleitheim Confession.
Calvin's wife, interestingly, had been an Anabaptist widow whose husband had previously abandoned her. Calvin makes accusation of even more radical behavior among the Anabaptists, but I doubt his depictions can be taken as representative.
Sattler is rebuking the "lawless" who gathered Thomas Muentzer. Luther and others think of Muentzer and Muenster when they think of Anabaptists, but they were not typical.
But polygamy does occur in many societies. I don't agree with it. But I have never heard any convincing reason for governments to ban it as a civil practice. What harm does it do to the common good?