LGBT studies. History and future of same sex marriage in the US

        In the U.S. a pattern emerged, with pushes towards same-sex marriage being countered by legislative action. One such location of this collision was in Hawaii, in 1993. Three gay couples, including Nina Baehr and Genora Dancel, were searching for lawyers after having been denied the right to get married. Dan Foley, former director of Hawaii's ACLU, and Evan Wolfson, an attorney from the ACLU, agreed to take the case. The couples had first appealed their denial of marriage licenses in 1991 and had been ruled against by a lower Hawaii court. When Foley and Wolfson appealed the case, also called Baehr v. Miike, to a higher court in 1993, Hawaii's Supreme Court overruled the lower court's decision noting that “marriage is a basic civil right.”  The court deemed it unconstitutional to deny marriage to gay couples unless the state could show “compelling state interest” in the denial. There were a couple different reasons for the Supreme Court's ruling. Primarily, the decision was based on an article in the  Hawaii state constitution that prohibits discrimination based on “race, religion, sex, or ancestry.” It was also based on the precedent of the U.S. Supreme Court ruling on the 1967 case of Loving v. Virginia. The decision of the Loving case was a federal cessation of state laws prohibiting interracial marriage.  After the Hawaii Supreme Court ruling, Baehr v. Miike was then sent back to lower courts for a trial to determine whether the state had a legitimate reason for the denial of marriage licenses to same-sex partners.  Many opposers of gay marriage feared that, due to the “full faith and credit” clause, other states would have to recognize same-sex unions were they to be legalized in Hawaii. Article IV, section I of the Constitution states: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” The lower court sat on the case for three years, until September 1996, before opening the trial on the state's decision. This time coincided with another monumental turn in the path to same-sex marriage: President Bill Clinton's passing of the Defense of Marriage Act.

        The Defense of Marriage Act, DOMA, was passed by the U.S. House of Representatives in the summer of 1996 with a vote of 342-67, passed by the U.S. Senate in September 1996 with a vote of 85-14, and officially signed into law by President Bill Clinton also in September 1996. Essentially, the DOMA was passed to address an issue that was never passed in Hawaii. It aimed to deal with the danger that, when one court approved same-sex marriages, such unions could be legally forced on the other 49 states. This act provided a “federal definition of marriage as the union of one man and one woman” as well as definition of “spouse” as a married member of the opposite sex. It also declared that no other state needed to give “full faith and credit” to same-sex marriages performed in other states. It forbade federal recognition and federal tax and pension benefits to same-sex marriage partners. Prior to the 1996, no state constitutions had made explicit bans against same-sex marriages but by the end of the year, fifteen state legislatures had enacted legislations barring gay marriage, including Hawaii. While an appeal to the Baehr v. Miike case was awaiting trial by the lower court of Hawaii, state voters passed a constitutional amendment explicitly banning same-sex marriage. The legislature however, also provided a new class for partners called “reciprocal beneficiaries.”  Although not the victory that the gay movement had hoped for, this new legislature was groundbreaking because it was the first statewide domestic partnership law passed in the United States.

        The Baehr decision in Hawaii demonstrated that it was indeed possible to convince a court that banning same-sex marriage was unconstitutional. In 1997, as state DOMAs were multiplying throughout the country, Vermont became the epicenter of the latest battle for gay marriage when Mary Bonauto, the head attorney of the Gay and Lesbian Advocates and Defenders (GLAD), and two Vermont lawyers, Beth Robinson and Susan Murray, decided to reignite the conversation. Vermont was a largely liberal state with a strong gay grassroots movement and an organization called the Vermont Freedom to Marry Task Force, founded in the early 1990s that had been fighting adamantly for the legalization of gay marriage. In 1997, Bonauto, Robinson and Murray filed Baker v. Vermont on behalf of three gay couples.  The case, filed after the three couples had been denied marriage licenses, worked its way through the state courts up to the Vermont Supreme Court. In December of 1997, the high court ruled that it was unconstitutional to deny the benefits of marriage to same sex couples and that the state must grant the same protections to gay couples as heterosexual couples. The alternative, as outlined by the court, was to create a suitable domestic partnership option that would offer the same benefits afforded to married couples. The Vermont Supreme Court left the actual creation of a marriage alternative up to state legislation, stating that Vermont was “constitutionally required to extend to same-sex couples the same benefits and protections that flow from marriage under Vermont law. Whether this ultimately takes the form of inclusion within the marriage laws themselves or... some equivalent statutory [legal] alternative, rests with the legislature.”  Debate over this ruling was widespread and very vocal. The decision was hailed by many as a milestone in the gay rights movement. However, there was, predictably, an equally extreme outcry from dissenters. Gary Bauer, a religious conservative then running for U.S. President said that the ruling was “worse than terrorism.”  Five months later, in April 2000, then-Governor Howard Dean signed legislature establishing “civil unions” for gay couples. These civil unions offered many of the social and fiscal benefits of marriage, without adopting the name “marriages.”  The downfall of civil unions created by state legislature was that they offered none of the Federal protections of marriage due to the creation of the DOMA (which denied all Federal recognition of same-sex partnerships). The U.S. government outlines more than one thousand benefits and rights applied to married couples, all of which are denied to same-sex partners in civil unions. These Federal protections included, but were not limited to, social security benefits, pensions protections and tax considerations. In the first five months that civil unions were allowed in Vermont, more than 1,704 were performed. Only 833 of these couples were from Vermont however, and many would have encountered problems when they returned to their own states if, years later, they attempted to divorce.  As their home states did not recognize the legitimacy of their unions, they would not dissolve them. Many Vermont couples also encountered these problems if they wished to move to another state.

        The relative success of Baker v. State in Vermont paved the way for an even more historic decision in Massachusetts. In April 2001 lawyers in Boston filed a suit on behalf of seven same-sex couples who had been denied the right to marry in Massachusetts. Included in this group were Hillary and Julie Goodridge, whose jointly adopted name would come to identify the case. The trial court denied their case, as expected. The couples appealed the case and it made its way to the Massachusetts Supreme Court. On November 18, 2003, in a monumental decision, the Court ruled that the state had “failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.” Additionally, it asserted that “the right to marry means little if it does not include the right to marry the person of one's choice.” In the Goodridge v. Department of Public Health decision, the state argued that the ban on gay marriages advanced three goals of the states: 1) the provision of an adequate setting for procreation, 2) the maintenance of a suitable environment for child-rearing, and 3) the preservation of limited State social and financial resources. These reasons were rejected by the Massachusetts courts which found that the purpose of marriage extended beyond procreation. Additionally, the plaintiffs argued that the state's ban on same-sex marriage was no more constitutional than the ban on interracial marriages that had been in effect until the the 1967 Supreme Court case in Virginia. In fact, the final decision of the Massachusetts Supreme Court cited the 1967 Loving v. Virginia case stating “in this case, as in...Loving, a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance – the institution of marriage – because of a single trait, skin color in...Loving, sexual orientation here.” The conclusive ruling of the Court was that the Massachusetts was henceforth required to begin the issuance of marriage licenses to same-sex couples within 180 days, the deadline being May 17, 2004. The reaction to this ruling was immediate and forceful. Only one week later, three conservative congressmen introduced a constitutional amendment that would limit marriage to between one man and one woman. This conservative countenance was lead by Massachusetts governor Mitt Romney, a Mormon politician who declared that he would lead efforts to block same-sex marriage, stating that, “[f]rom day one I've opposed the move for same-sex marriage and its equivalent, civil unions.”  However, unlike in Hawaii where the amendment process moved quickly, in Massachusetts it would take two years to get a constitutional amendment on the ballots for voters to approve or disapprove. Despite this, in February 2004, the state legislature passed a proposed amendment that explicitly defined marriage in Massachusetts as between one man and one woman. The amendment would, however, have to be re-approved by state legislators to be put on the ballot in 2006, at the earliest. Although the amendment was voted down in 2005, a citizens movement was started to place a constitutional amendment on the ballot. To be placed on the ballot and be up for vote in 2008, this initiative had to receive 50 votes in two successive sessions of the legislature. On June 14th, 2007, the initiative received only 45 votes and same-sex marriage is now secure in Massachusetts until at least 2012. At the time, Governor Deval Patrick said: “Today’s vote is not just a vote for marriage equality. It was a vote for equality itself.” The conservative state legislators also proposed the alternative of civil unions or domestic partnerships but the Massachusetts Court declared that nothing short of marriage would be acceptable in the fulfillment of its ruling on Goodridge. On May 17th 2004, just as the Court had ordered, the state of Massachusetts became the first U.S. state to allow gay marriage. However, due to the federal implications of the DOMA, these couples, though recognized as married by Massachusetts, received no recognition on a Federal level and therefore were still denied all Federal benefits that are afforded to married, heterosexual couples.

        Another state that has been the center of years of battling over same-sex marriage legislations is California. In San Francisco, Mayor Gavin Newsom decided not to wait for the plodding trial cases to work themselves through the courts and on February 12th, 2004 he announced that he would begin issuing marriage licenses to same-sex couples. Over four thousand license were issued before, on March 11th, 2004, the California Supreme Court suspended the issuing of same-sex marriage license. In August of that year, the Court also annulled all of the gay marriages that had been performed during those four weeks. Meanwhile, in March of 2000, California voters had enacted the initiative, Proposition 22 (also dubbed the Knight Initiative), restricting marriages to only those between opposite sex couples. However, because the proposition was an ordinary statute, it could be struck down were it to be found inconsistent with the state's constitution. This is exactly what happened on May 15th, 2008 when the California Supreme Court overturned Proposition 22, basing its decision on the In Re Marriage Case. The In Re marriage Case refers to a concurrent California Supreme Court case during which the jurists ruled marriage was a fundamental right under the California Constitution. The vacillating battle over same sex marriage did not conclude here, however. In November 2008 California voters passed yet another proposition that changed the state's position on gay marriage. Proposition 8, also called the California Marriage Protection Act, was a ballot proposition and constitutional amendment that added a new provision to the California Constitution that stated that “only marriage between a man and a woman is valid or recognized in California.” Although the wording was the same as that of Proposition 22, the difference was that while Prop 22 was an ordinary statute and could be struck down by the California Supreme Court, Prop 8 was a constitutional amendment and was, therefore, not so easily overturned. Opinions on Proposition 8 were extremely bifurcating. The campaign for Prop 8 set a national record for contributions, totaling 83 million dollars from 64,000 people in all fifty states and twenty foreign countries. These numbers can attest to the extreme and boundless nature of the public interest in the topic of gay marriage. Many churches, including the Church of Jesus Christ of Latter Day Saints, the Roman Catholic church, the Eastern Orthodox church, and the Orthodox Jewish Congregation of America, spoke publicly in support of the Proposition. Other supporters of Prop 8 included Senator, and then presidential nominee, John McCain, former Speaker of the House Newt Gingrich, California State Representative Tom McClintock, and numerous other Republican senators and assemblymen. Noted opposers of the Proposition included California representative and current Speaker of the House Nancy Pelosi, Senator and then presidential nominee Barack Obama, Republican California Governor Arnold Schwarzenegger, as well as half of the state senators and 42 of the 80 members of the state assembly. Most recently, in August 2010, Proposition 8 was declared unconstitutional in a federal ruling, Perry v. Schwarzenegger. U.S District Judge Vaughn Walker found the proposition unconstitutional because it “disadvantages gays and lesbians without any rational justification.” Supporters of Prop 8 almost immediately appealed the district court's ruling and the issuance of marriage license to same-sex couples has been suspended by California's 9th District Court pending the appeal process.

        Currently, in the United States, homosexuals can legally marry in five states and one district (Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and the District of Columbia.) With these marriages they are entitled to all state-level benefits. The states of Maryland, Rhode Island, New York, and New Jersey recognize same-sex marriages performed in other states, but do not offer marriage licenses to gay couples in their own jurisdiction. Several other states offer such compromises as civil unions and domestic partnerships that offer all or part of the state-level benefits offered to straight couples in marriage. Today, thirty-one states have provisions in their legislations that explicitly restrict marriage to between one man and one woman, following the example of the Federal Defense Against Marriage Act. One of the more recent developments in this matter occurred in July 2010 when a Federal court ruled that key articles of the DOMA were unconstitutional. Justices reached this decision because they believe that the DOMA interferes with a state's right to define marriage, as well as the fact that the DOMA denies federal-level benefits to gay couples, particularly the right to file joint tax returns. The Department of Justice, as it is required to do, defends the constitutionality of the law and entered an appeal to the ruling on October 12th, 2010.

        The issue of gay marriage has been an object of great contention in the United States, with strong opinions and many different arguments from both sides of the matter. Many right-wing Christians, as well as other religious followers, insist that gay marriages are wrong on the basis that homosexual activities are a sin, while advocates of gay marriage argue that they deserve the same civil rights and benefits as straight couples. At its core, the argument against gay marriage is an argument against homosexuality itself, arising from the idea that homosexuality is a choice. A person can choose  whether or not to sin, and therefore can choose whether or not to behave immorally. One main point made by opponents to gay marriage is that it constitutes a public manifestation of an immoral behavior. Nearly all of the major religions in the world, including all of the major faiths in the United States, view homosexuality as a sin. They feel that it would be offensive to allow gay people to marry and that it would be an encroachment on their religious freedom to have to recognize a union that they feel is wrong in its essence. Though the United States claims to be a country with a “separation of church and state,” it was founded by puritanical Christians with a basis in biblical law and many feel that allowing gay marriage would be contradictory to the morality of the majority.  People have the right to free speech in the United States and if the Courts were to sanction same-sex marriage, opponents of such marriages would be forced to forfeit their First Amendment freedom. William J. Murray, chairman of the Religious Freedom Coalition, explains: “Once same-sex unions are sanctioned by law, it becomes very difficult to voice any disapproval of homosexual behavior in the schools or the workplace.” This idea segues into the next common argument against gay marriage; many opponents view the potential legalization of gay marriage as a cause for the dissolution of the standing notion of traditional marriage. The bible defines marriage as between one man and one woman and dissenters to gay marriage feel that the institution of marriage should remain as such lest all other “perverse” marriages be legalized, such as bestiality, polygamy, and incest. Conservative political pundit William J. Bennett viewed the legalization of gay marriage as a “slippery slope”, stating that “recognizing the legal union of gay and lesbian couples would... be the most radical step ever taken in the deconstruction of society's most important institution.” 

        Although counteraction to same-sex marriage is primarily emotional and reflective of religious doctrine rather than secular rationality, there are some potentially secular arguments that have been made against same-sex marriage. The first of these arguments is the connection between marriage and procreation. The government provides many benefits to married couples so as to encourage them to have children, who would, in turn, keep society growing, move it forward, and support the economy. It follows then, that the government has no interest in extending benefits to gay couples, as they would not procreate. Though this argument may seem outdated in a time when having children is not the primary focus of a marriage, and the use of birth-control is widespread, many people still believe that a homosexual union cannot be placed at the same level as a heterosexual marriage because it will not result in procreation and is, therefore, “fruitless”.  Besides this connection, there is also a common idea that homosexuals are not stable enough, as adults, to maintain a committed relationship or to rear children. This idea comes from a lengthy history of a unrealistic portrayal of gay people in society and  the mistaken association of hedonism with homosexuality. In 1993, during the Baehr v. Miike case, the State of Hawaii and court petitioners representing the Roman Catholic Church and The Church of Jesus Christ of Latter-day Saints claimed that gays and lesbians in committed relationships make inferior parents and that the best way to assure that children get the best possible upbringing is to require spouses to be of different genders.  Homosexuals are supposed to be promiscuous, unstable and unable to provide an acceptable environment for a child’s welfare.

        On the other hand, there are just as many vocal opinions in support of the legalization of gay marriage. Advocates of same-sex marriages argue that it is a civil right and that in being denied the right to get married, homosexuals are being denied all of the state and federal benefits that are bestowed on straight married couples. In regards to the religious arguments against gay marriage, the countenance is simple: it's not about religion. Not everyone holds Christian beliefs, or religious beliefs at all, and the right to freedom of religion is one of the primary components of the fabric of the United States. Many argue that it is unconstitutional to allow religion to control the government, and is therefore an irrelevant argument against the legalization of gay marriage. Christians would argue that the Bible is the ultimate authority on morality, however, the government does not operate by these standards. While the arguments against gay marriage tend to revolve around faith, legal arguments on behalf of gay marriage get more attention because it should be a matter of basic civil and equal rights. In essence, the United States was founded on the belief of freedom and liberty for all, not subject to discriminations. Homosexuals are human beings, and the Constitution protects all human beings equally. Keeping gay marriage illegal also violates the Due Process Clause of the Fifth Amendment. According to the American Civil Liberties Union in 1996, “The law [against same-sex marriage] discriminates on the basis of sex because it makes one's ability to marry depend on one's gender.” The ACLU goes on to say, “Classifications which discriminate on the basis of gender must be substantially related to some important government purpose…tradition by itself is not an important government purpose. If it were, sex discrimination would be quite permissible; discrimination against women has a pedigree in tradition at least as long and time honored as that of discrimination against same-sex couples in marriage.” Discrimination and violence against homosexuals is still prevalent in the United States and many feel that the hatred is propagated by the government's refusal to recognize gay unions. Potentially, if the government made the step to sanction gay marriage and bestow equal rights upon homosexuals, society would be pushed towards a larger acceptance and tolerance of diversity. Perhaps the most important aspect of the modern manifestation of the institution of marriage is that it establishes a legally recognized and socially sanctioned relationship which makes it easier for people to provide for one another economically, emotionally, and psychologically. The institution of marriage, and the idea of a traditional family are a form of social control and organization. It is, therefore, in the best interest of the government to encourage people to marry and the government does so by granting certain benefits that provide financial security to married couple, and encourage them to procreate. Gay advocates counter this idea, however, by pointing out that the government supports all heterosexual marriage whether or not the couple is capable or desirous of having children. The General Accounting Office of the Federal Government in 1997, in a 75 page brief prepared for the Chairman of the House Judiciary Committee enumerated some 1,049 laws giving rights to married heterosexual couples, that are denied to homosexual couples. Additionally, those who support gay marriage believe that marriage serves an essential role in society. Spouses have a sort of “contractual” agreement to care for each other, financially and emotionally. Married couples tend to care for each other when one spouse is ill or injured, which alleviates some of the burden placed on society. Because gay people cannot marry, it is more difficult for partners to help each other in difficult situations like medical crises. There are laws in the United States which prohibit non-family members to visit sick or injured people in hospitals, and decision-making in regards to one's health most often falls on the closest family members. In the situation of a homosexual couple, whose relationship is not recognized by the state or federal government, often a partner will not be allowed to visit their ill partner, and will often be ignored in regards to health decisions or legal issues.

        As of yet, there have been few definitive answers in regards to the heated issue of gay marriage. It remains a matter with deep roots in tradition, religion, and civil rights. Advocates on either side of the issue propagate arguments that resound with significant percentages of the population. Proponents argue that same-sex couples should have access to the same marriage benefits and public acknowledgment enjoyed by heterosexual couples and that prohibiting gay marriage is unconstitutional discrimination. Opponents argue that altering the traditional definition of marriage as between a man and a woman will further weaken a threatened institution and that legalizing gay marriage is a slippery slope that may lead to polygamous and interspecies marriages. The United States is a country that is constantly evolving and changing; only forty years ago, interracial marriages were prohibited by law and although many people speak out vehemently against gay marriage, many other believe it is one more inevitable step in our country's history.

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