By Candy Stair
Circa December 2004
The movement to open civil marriage to same-sex couples achieved its first temporary success in 1993 with the decision of the Hawaii Supreme Court that the restriction of marriage to opposite-sex couples would be presumed unconstitutional unless the state could demonstrate that it furthered a compelling state interest. In response to this decision the state constitution was amended to allow the legislature to preserve that restriction. A similar court decision in Alaska in 1998 led to an even stronger constitutional amendment, itself defining marriage as between one man and one woman. In further reaction to the Hawaii case, the federal Defense of Marriage Act (1996) provided that no state would be required to recognize a same-sex marriage from another state, and also defined marriage for federal-law purposes as opposite-sex. The majority of the states also passed their own "marriage protection acts."
In Vermont, after that state's Supreme Court held in 1999 that the state must extend to same-sex couples the same benefits that married couples receive, the legislature in 2000 created the status of "civil union" to fulfill that mandate.
In November 2003, the Massachusetts Supreme Judicial Court held that excluding same-sex couples from the benefits of civil marriage violated the state constitution, and in February 2004 that court further held that a "civil union" law would not be sufficient, and on May 17, 2004 Massachusetts became the first state in the United States where same-sex marriage per se is legal. A constitutional amendment to reverse the Supreme Judicial Court's decision has been given initial approval by the legislature. The soonest it could be voted on by the people is November 2006.
Currently, only one man and one woman can be joined in matrimony and have their marriages recognized by the state, except for residents of Massachusetts who successfully won a court battle for the right to marry. Same-sex couples were able to obtain marriage licenses in San Francisco, CA, and in various towns in New Mexico and New York for short intervals of time during 2004. However, none were able to register their marriages.
As of August, 2004, 37 states have enacted “Defense of Marriage Acts” (DOMAs) that ban same-sex marriage. Other states have similar legislation pending. 3 states (AK, NE, and NV) have amended their state constitutions to ban SSM. 4 states (MD, OR, WI, WY) have marriage laws that specifically prohibit SSM. 5 states (CT, NJ, NM, and RI) and DC have no explicit prohibition of SSM. And 1 state (MA) allows SSM, but only to residents of the state.
In the US, the Defense of Marriage Act (DOMA) federally defines marriage as a union between one man and one women as husband and wife, and allows states the right to refuse to recognize same-sex marriages performed in other states. DOMA was in response to state rulings in favor of same-sex marriages, such as in Hawaii, Alaska, and Vermont. Worries that GLBT advocates would use the Full Faith and Credit Clause to require legal acts, records and proceedings executed in one state to be recognized in all other states, became realities. In turn, conservatives have been calling for a federal marriage amendment (H.J.RES.56) that would permanently define marriage in the US Constitution as a union only between a man and a woman, and would not allow states to rule otherwise.
Fifty years ago the California Supreme Court handed down its decision in the landmark case of Perez v. Lippold, striking down California’s ban on interracial marriage. A case that homosexual’s reference as their right to same-sex marriage.
In this proceeding in mandamus, petitioners seek to compel the county clerk of Los Angeles County to issue them a certificate of registry (Civ.Code, sec. 69a) and a **18 license to marry. (Civ.Code, sec. 69.) In the application for a license, petitioner Andrea Perez states that she is a white person and petitioner Sylvester Davis that he is a Negro. Respondent refuses to issue the certificate and license, invoking Civil Code section 69, which provides: '* * * no license may be issued authorizing the marriage of a white person with a Negro, mulatto, Mongolian or member of the Malay race.'
Civil Code section 69 implements Civil Code section 60, which provides: 'All marriages of white persons with [N]egroes, Mongolians, members of the Malay race, or mulatto[s] are illegal and void.' This section originally appeared in the Civil Code in 1872, but at that time it prohibited marriages only between white persons and Negroes or mulatto[s]. It *713 succeeded a statute prohibiting such marriages and authorizing the imposition of certain criminal penalties upon persons contracting or solemnizing them. (Stats.1850, Ch. 140, p. 424.) Since 1872, Civil Code section 60 has been twice amended, first to prohibit marriages between white persons and Mongolians (Stats.1901, p. 335) and subsequently to prohibit marriages between white persons and members of the Malay race. (Stats.1933, p. 561.)
Petitioners contend that the statutes in question are unconstitutional on the grounds that they prohibit the free exercise of their religion and deny to them the right to participate fully in the sacraments of that religion. They are members of the Roman Catholic Church. They maintain that since the church has no rule forbidding marriages between Negroes and Caucasians, they are entitled to receive the sacrament of matrimony.
The provision of the First Amendment to the Constitution of the United States that Congress shall make no law 'respecting an establishment of religion, or prohibiting the free exercise thereof' is encompassed in the concept of liberty in the Fourteenth Amendment. State legislatures are therefore no more competent than Congress to enact such a law. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352. They may, however, regulate conduct for the protection of society, and insofar as their regulations are directed towards a proper end and are not unreasonably discriminatory, they may indirectly affect religious activity without infringing the constitutional guarantee. Although freedom of conscience and the freedom to believe are absolute, the freedom to act is not. Cantwell v. Connecticut, supra, 310 U.S. at pages 303, 304, 60 S.Ct. at page 903.
The regulation of marriage is considered a proper function of the state. It is well settled that a legislature may declare monogamy to be the 'law of social life under its dominion,' even though such a law might inhibit the free exercise of certain religious practices. Reynolds v. U. S., 98 U.S. 145, 166, 25 L.Ed. 244; Davis v. Beason, 133 U.S. 333, 343, 10 S.Ct. 299, 33 L.Ed. 637. If the miscegenation law under attack in the present proceeding is directed at a social evil and employs a reasonable means to prevent that evil, it is valid regardless of its incidental effect upon the conduct of particular religious groups. If, on the other hand, the law is discriminatory and irrational, *714 it unconstitutionally restricts not only religious liberty but the liberty to marry as well.
The due process clause of the Fourteenth Amendment protects an area of personal liberty not yet wholly delimited. 'While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and, generally, to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.' Italics added: Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, 29 A.L.R. 1446. Marriage is thus something more than a civil contract subject to regulation by the **19 state; it is a fundamental right of free men. There can be no prohibition of marriage except for an important social objective and by reasonable means.
No law within the broad areas of state interest may be unreasonably discriminatory or arbitrary. The state's interest in public education, for example, does not empower the Legislature to compel school children to receive instruction from public teachers only, for it would thereby take away the right of parents to 'direct the up-bringing and education of children under their control.' Pierce v. Society of Sisters, 268 U.S. 510, 534, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070, 39 A.L.R. 468. Again, the state's vital concern in the prevention of crime and the mental health of its citizens does not empower the Legislature to deprive 'individuals of a right which is basic to the perpetuation of a race the right to have offspring' by authorizing the sterilization of criminals upon an arbitrary basis of classification and without a fair hearing. Skinner v. Oklahoma, 316 U.S. 535, 536, 62 S.Ct. 1110, 1111, 86 L.Ed. 1655.[FN1]
*715 The right to marry is as fundamental as the right to send one's child to a particular school or the right to have offspring. Indeed, 'We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.' Skinner v. Oklahoma, supra, 316 U.S. at page 541, 62 S.Ct. at page 1113. Legislation infringing such rights must be based upon more than prejudice and must be free from oppressive discrimination to comply with the constitutional requirements of due process and equal protection of the laws. actual marriages.
Without the right to marry, same-sex couples have sought other ways to legalize their families, with varying success. Lambda Legal continues to support these efforts by drafting laws, expanding family recognition through the courts and empowering the LGBT community through education about their existing rights and options. Wills, health proxies, co-parent adoptions, co-leases, name changes: There are many legal ways that same-sex couples try to protect each other and their children. Still, desired protections may be unavailable, unsuccessful in court or not always respected by individuals, businesses or the government.
Homosexual couples point out that they are just as capable of raising children and having a healthy family as a heterosexual couple (adoptions for men, and adoption or artificial insemination for women).
Also, many point at that no fault divorce laws have reduced civil marriage to a contract, and all couples should have equal access to that contract.
The biggest argument in support is allowing same-sex couples the same legal protections, such as access to health care as a dependent, access to spouse in a medical emergency, inheritance, etc.
It should be noted that most supporters are not asking any particular religion to sanctify the marriage - just that a legal union, with equal rights and privileges be allowed. "If two people want to build a life together to the point of signing documents that require messy expensive divorce to undo, why not give everyone the same rights?”
The major attacks on same-sex marriage come from the religious right, who are opposed to homosexuality in any form. Naturally, they speak out against gay marriage as well.
One opposing view is that somehow same-sex marriage disrupts the "sanctity" of hetero marriage. The homosexual view; though it should be noted that no fault divorce laws really ended any "sanctity" in the contract some decades ago. Sanctity still remains in the religious aspect of some marriages, but that is separate from the civil marriage contract.
An interesting viewpoint from some gay couples is that they oppose gay marriage simply as a means to "legitimize" or sanctify a domestic partnership. “Historically, marriage has benefited male property owners. So, in a way, buying into marriage undermines the feminist sensibilities.” In their specific case however, they need none of the protections or extra privileges that a marriage contract offers. (For instance, their health care coverage accepts domestic partners).
Vermont has a "civil union" law, California now has one slated to take effect in 2005. The Massachusetts Supreme Court ruled that the state may not exclude “qualified same-sex couples from access to civil marriage”. However, about half of the states have anti-gay marriage laws.
Meanwhile, the fundamentalist Christian right is active in opposing same-sex marriage, and makes up the core of the anti-gay movement.
[A] “family” merely means an interwoven social life, emotional commitment, and some level of financial interdependence.
It’s principle now well established around the country. Several cities have “domestic partnership” laws, which allow relationships that do not fit into the category of heterosexual marriage to be registered with the city and qualify for benefits that up till now have been reserved for straight married couples. San Francisco, Berkeley, Madison, and Los Angeles all have legislation, as does the politically correct Washington, D.C., suburb, Takoma Park. In these cities, a variety of interpersonal arrangements qualify for health insurance, bereavement leave, insurance, annuity and pension rights, housing rights (such as rent control apartments), adoption and inheritance rights. Eventually, according to gay lobby groups, the aim is to include federal income tax and veterans’ benefits as well. A recent case even involved the right to use a family member’s accumulated frequent-flier points. Gays are not the only beneficiaries; heterosexual “live-togethers” also qualify.
There’s an argument, of course, that the current legal advantages extended to married people unfairly discriminate against people who’ve shaped their lives in less conventional arrangements.
United Airlines offers benefits for an employee's domestic partner as part of the company’s commitment to valuing and supporting diversity among our employees and customers. There are other major companies offering similar benefits.
The same health, welfare, and travel benefits United currently provides to an employee's spouse are available as of May 1, 2000, to an employee's same-sex domestic partner. These benefits include medical and dental coverage, travel benefits, life and personal accident insurance, and a pre-retirement survivor pension benefit, (if elected by the employee). If an employee can legally marry his/her domestic partner under US law but chooses not to do so, then his or her domestic partner is eligible under this program for travel and bereavement leave benefits only. An employees and his or her domestic partner will need to meet certain requirements and provide legally acceptable evidence of their relationship in order to qualify for benefits.
While much of Western Europe is embracing homosexual unions or even marriage in some cases, the majority of Americans stolidly reject them. That became clear in [the last election], when all 11 states with ballot initiatives on same-sex marriages voted them down. Eight states voted to cut the rights of people – gay or straight – who are in civil unions and domestic partnerships. At risk, voters insist, are core American values: the role of family, the education of children, even the choice to live a sinful or moral life.
[C]onsider gay rights. Voters from Mississippi to Oregon approved resolutions opposed to same-sex marriages, and fewer than a dozen states provide health care benefits to the domestic partners of gay and lesbian employees. The federal government under George W. Bush certainly does not do so, and won’t. But at last count, 227 companies in the Fortune 500, including General Motors, Ford and Chevron Texaco, offer domestic partner benefits. A decade ago, only a handful did. More join them every year because firms need to compete for talent and want to be seen as treating everyone fairly.
I believe same-sex marriage should be decided by the people. And in 2004, the voters said no, not once, but in eleven of the states it was proposed. I don’t feel our country is ready to accept homosexuality as a normal lifestyle. Perhaps, in time my view will change.
As in Europe, where legal gay unions took years to evolve, attitudes about same-sex marriage are shifting with a younger generation of Americans. A CBS/New York Times poll last year found that Americans under 30 favor gay marriage by 61 percent to 35 percent. People 65 and older opposed it by a 73 to 18 percent margin. In 20 years, that first group will be running the country. Maybe one of them will also be in the White House.