35 Year Quest for Marriage Equality April 17, 2006
35 Year Quest for Marriage Equality. The test of time, history, has not been kind to those advocating for same-sex/gay marriage. Although with the judiciary, the courts, they have had some short-term, fragile victories; but in the court of public opinion there have only significant losses. Beginning in a 1971 MN legal challenge to allow same-sex/gay couples to marry, the definition and meaning of marriage has not been broadened, but rather it has been narrowed.
Historically the laws about marriage were not gender specific, i.e. using words such as man and woman or male and female. But since homosexuals/gays have been filing legal challenges for the right to marry laws have been changed and constitutions have been amended. Several states that had first used laws to define marriage, after the Goodridge decision in Massachusetts have revisited the issue of marriage a second time and amended their constitutions.
Before the landmark Hawaii 1999 case, beginning in 1971 in Minnesota there have been 8 legal challenges by homosexual/gay couples in the battle for the right to marry. Both homosexual male and female couples have been a part of these legal challenges. The states in which these challenges occurred were in Minnesota 1971, Kentucky 1973, Washington 1974, Colorado 1975, Ohio 1975, Pennsylvania 1984, New York 1990, and Washington D.C. 1995. All of these legal challenges failed.
The first successful legal challenge for same-sex marriage Hawaii (1999) was a nine-year long court case. In 1993 the Hawaii Supreme Court ruled that prohibiting same-sex/gay marriage may violate the Hawaii Constitution’s ban on sex discrimination. The following year, 1994, the Hawaii Legislature amended the state’s marriage law to provide that only marriages between a man and a woman are valid. The same-sex/gay marriage issue in Hawaii was finally decided in 1998 when the Hawaii voters amended the Hawaii State Constitution, which allowed the Hawaii State Legislature to define marriage as a relationship between one man and one woman. Then in 1999 the Hawaii Supreme Court ruled that the 1998 amendment ratified by the voters of Hawaii rendered the plaintiff’s argument moot, with the result that same-sex marriage remains illegal in Hawaii.
Another successful legal challenge was in Alaska (1998) when a trial court ruled that choosing a martial partner is a fundamental right. That same year in November of 1998 the citizens of Alaska voted to amend the Alaska Constitution requiring that all marriages be between a man and a woman. A third successful challenge was in Vermont (1999), although it did not result in same-sex/gay marriage. In 1999 the Vermont Supreme Court ruled that same-sex/gay couples are entitled, under the Vermont Constitution, to all of the protections and benefits provided through marriage. The Court ducked the issue of whether same-sex/gay couples are entitled to a marriage license, instead focusing on equal rights and benefits. The result was the Vermont Legislature past a law that was signed by the Vermont Governor creating civil unions for same-sex couples, giving these couples all the rights and benefits of marriage under Vermont law but not marriage.
Four states, New Jersey, New Mexico, New York, and Rhode Island have no laws or provisions in their Constitutions pertaining to marriage being defined as the relationship between one man and one woman. In April 2005 the Connecticut legislature pass a law that was signed by the Connecticut Governor. The law allows for civil unions for same-sex/gay couples and defines marriage as a relationship between a man and a woman. Connecticut was the first state to resolve the issue of defining marriage without a legal challenge. There is currently a legal challenge by GLAAD to overturn this Connecticut law that grants rights and benefits through civil unions for same-sex/gay couples.
Massachusetts is the only state to allow same-sex/gay marriage and it is by judicial decree. Of the 50 states this leaves 44 states that by judicial decree, by laws, or by their constitutions to define marriage as the relationship of one man and one woman. 19 states have amended their constitutions, 13 states since the Goodridge decision. 6 more states will allow their citizens to vote in 2006 elections. Under the full faith and credit clause of the U.S. Constitution, states are generally required to recognize and honor the public laws of other states, unless those laws are contrary to a strong public policy of that state. But in 1996, Congress enacted the Defense of Marriage Act, signed by President Clinton that bars federal recognition of same-sex marriages and allows states to do the same.
At least two examples, second class status and over 1400 rights and benefits are often used as part of the deliberate deceit and emotional rhetoric used in the discussion for same-sex/gay marriage. Those advocating for same-sex/gay marriage say civil unions for same-sex/gay couples result in a second-class status for these couples. Whatever action a state will take, whether by marriage or civil unions for same-sex/gay couples, according to federal mandate marriage is defined as a relationship between one man and one woman (Defense of Marriage Act, 1996), thereby for federal recording purposes same-sex couples have second class status. This includes but is not limited to federal tax codes. Therefore, the same-sex/gay couples who are ‘married’ in Massachusetts by judicial decree have second class status by federal law.
The second example, over 1400 rights and benefits, are the combined number of federal and state rights and benefits that accrue from marriage. Whatever action a state will take, whether by marriage or civil unions for same-sex/gay couples, according to federal mandate marriage is defined as a relationship between one man and one woman (Defense of Marriage Act, 1996), therefore same-sex/gay couples do not qualify for the 1,138 federal rights and benefits, but only rights and benefits provided by the state.
How long has the Massachusetts legislature been discussing maintaining the status quo that is marriage is the relationship between one man and one woman? A third proposed Constitutional amendment is before the Massachusetts legislature; two have been citizen’s petition initiative. If there is so much support for same-sex/gay marriage in the Massachusetts legislature why has there been no actual discussion of legislation on the floors of the house and senate for any proposed same-sex/gay marriage bill. Those advocating for change have only been arguing in the negative against maintaining the status quo. When will they begin arguing in the positive for their position of changing the definition of marriage to include same-sex/gay couples through legislative action?
The Massachusetts legislature may begin to bring the discussion of marriage to an end by voting to affirm maintaining the status quo that marriage is the relationship between one man and one woman through voting to pass the proposed the constitution amendment before the legislature. Then it will be possible for those advocating and supporting same-sex/gay marriage through legislative action to bring forth same-sex/gay marriage legislation allowing for an up or down vote on gay marriage before a second vote to send the citizens petition initiative to the citizens of the Commonwealth of Massachusetts.