Gay Couples

Sections within this essay:

Background

Within the already controversial realm of gay rights, no area is more controversial than gay marriage. For some, the idea that homosexual couples should have the same matrimonial benefits as heterosexual couples is purely a question of civil rights. According to this argument, the constitutional concepts of equal protection and due process require that same-sex couples be treated no differently than heterosexual married couples. Others see homosexual marriage as a moral question, and conclude that such unions violate traditional ethical values found in the Judeo-Christian moral tradition. Another argument is that it undermines family values: heterosexual marriage is founded upon the need to procreate, but that is something homosexual couples cannot do. To counter this argument, those in favor of same-sex marriages note that elderly, disabled, and infertile people are free to marry without thought to procreation, and that advances in fertility technology have opened many paths to parenthood.

The debate over gay marriage is not confined to the marriage ceremony itself, although being allowed to participate legally in that rite drives much of the emotionalism of the debate. It also has a more pragmatic side, including issues such as whether same-sex couples should receive the same tax and estate advantages, the same rights to surviving children, the same community property rights, and the same health care benefits as heterosexual couples.

Although same-sex marriages have occurred privately for years, only recently has the issue been litigated. Only since 1993, with the Hawaii Supreme Court decision in Baehr v. Lewin, have gay rights supporters seen any measurable progress in state laws concerning homosexual marriage. Since that decision, both sides in the battle over same-sex marriage have experienced some victories and some setbacks.

Pre-1993

Unions between two members of the same sex in some sort of ceremony, religious or otherwise, existed for many years before the anyone sought to gain legal recognition of them. Generally, these unions were kept private, with knowledge limited to immediate friends and family members. Then, in 1971 the first lawsuit seeking to legalize a same-sex marriage was filed. Baker v. Nelson was inspired by the 1967 U.S. Supreme Court decision in Loving v. Virginia. In Loving, the Supreme Court invalidated a statestatute that prohibited interracial marriage. The court ruled that to deny marriage on the basis of race was a violation of the constitutional principles of equal protection and due process of law, because the law had "no legitimate purpose independent of invidious racial discrimination."

The Minnesota Supreme Court was not swayed by the reasoning in Loving. It struck down Jack Baker's attempt to gain legal status for his marriage to Mike McConnell. The court ruled that marriage was by definition between a man and a woman, and thus, unlike in Loving, there was no fundamental right to marry. Moreover, in a 1974 case, the Washington Supreme Court determined that the state's Equal Rights Amendment could not be held to allow homosexuals the right to marry. The law provided protection only on the basis of sex, not sexual orientation.

Following these cases, all attempts failed to get a state or federal court to recognize the right of homosexuals to marry. There were decisions allowing unmarried partners to sue for enforcement of promises of support or financial sharing (so-called "palimony" cases), beginning with the landmark Marvin v. Marvin case involving actor Lee Marvin in California in 1976. Gays also attempted to form legal relationships by having one partner "adopt" the other. Some municipalities, beginning with Berkeley in 1984, adopted domestic partnership laws that extended some recognition and benefits of marriage to registered same-sex couples. But gay activists considered that these gains fell far short of their ultimate goal: granting marriage recognition to gay unions.

Baehr v. Lewin

Activists scored their first major victory in 1993, in the Hawaii case of Baehr v. Lewin. Nina Baehr sued the state of Hawaii; she alleged that the state's refusal to issue her and her same-sex partner a marriage license amounted to illegal discrimination. In a plurality decision, the Hawaii Supreme Court said her case had merit. The Court ruled the state's prohibition of same-sex marriages amounted to discrimination on the basis of sex. Under the state's Equal Rights Amendment, the state would have to establish a compelling state interest supporting such a ban, a fairly strict standard. Although the court did not directly rule that the state's prohibition of same-sex marriages was illegal, it left little doubt of its skepticism regarding the proposition. The court remanded the case to a lower court to determine whether the state could prove this compelling state interest in prohibiting same-sex marriage.

For the first time, a state Supreme Court had ruled that gay couples might have the right to marry. Although its immediate impact was only in Hawaii, the decision heartened gay rights supporters and discouraged opponents throughout the country. One reason for these responses was the Full Faith and Credit Clause, found in Article IV, Section 1, of the United States Constitution: "Full Faith and Credit shall be given in each state to the public Acts, Records and judicial Proceedings of every other state." The Clause requires states to grant full weight to legal actions in other states, including marriages, divorces, and other family-related situations. Both opponents and proponents of gay marriage realized that the Full Faith and Credit Clause of the Constitution might mean that if same-sex marriages were legal in Hawaii, the marriages would be entitled to legal recognition in other states as well.

The Reaction

The Baehr decision mobilized opponents of same-sex marriages, who feared that gay marriage would soon be legal in Hawaii. Yet some disagreed over whether Hawaii's potential legalization of gay marriage would necessarily overrule other states' anti-gay marriage laws. Nevertheless, anti-gay marriage legislation was passed on both the state and federal level. Voters in Hawaii adopted a constitutional amendment allowing legislators to ban same-sex marriages, thus making the state's Equal Rights Amendment no longer applicable. In late 1999, the Hawaiian Supreme Court determined that this new ban was effective and refused to recognize same-sex marriages in the state.

The Defense of Marriage Act

In 1996, in response to the Baehr decision, the U.S. Congress passed the Defense of Marriage Act (DOMA). President Clinton signed DOMA into law. The act was designed to prevent the Full Faith and Credit Clause from being applied to states' refusal to recognize same sex marriages. DOMA states in part that "No state, territory or possession of the United States … shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such a relationship."

DOMA does not ban same-sex marriages in itself. Neither does it require any state to ban them. DOMA defines marriage as a union between a man and a woman only. The act also specifically denies federal benefits to same-sex couples. The act states that any federal law that applies to married couples does not apply to same-sex couple: statutory and administrative use of terms such as "marriage" and "spouse" under federal law only apply to heterosexual couples. In addition to the federal law, many states passed their own defense of marriage laws.

The Call for a Constitutional Amendment

In February 2004, President George W. Bush called for a constitutional amendment to protect marriage. The president said that DOMA was vulnerable to attack under the Full Faith and Credit clause, a sentiment echoed by numerous commentators. He stated only way to ensure that DOMA would not be struck down by "activist courts" is through an amendment that would" fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage." Proposed amendments have been introduced in Congress, but no vote has yet taken place.

Bush threw his support behind a federal marriage amendment after events in Massachusetts and San Francisco. In late 2003 and early 2004, officials in both places seemingly authorized same-sex marriages.

Massachusetts and San Francisco

On November 18, 2003, the Supreme Judicial Court of Massachusetts ruled in Goodridge v. Department of Public Health that the state could not deny civil marriage to two members of the same sex who wished to marry. The court stayed its ruling for 180 days, so that the state legislature could address the issue. The legislature moved quickly to prohibit same-sex marriages, but voted to allow "civil unions," a category that was intended to be separate but legally equivalent to marriage. In February 2004, the Supreme Judicial Court issued an advisory opinion that concluded the proposed legislation was unconstitutional. This opinion paved the way for city and town clerks to issue marriage licenses to same-sex couples beginning in May 2004. Massachusetts is currently the only state in the U.S. where same-sex couples may legally marry.

At the same time the marriage debate raged in Massachusetts, the issue was heating up in San Francisco as well. In February 2004, the county clerk, acting on orders of San Francisco mayor Gavin Newsom, began to issue marriage licenses to same-sex couples. Couples from all around the U.S. flocked to the city to get married. Issuance of licenses was halted when the California Supreme Court issued a temporary stay on March 11, 2004. By that time, however, more than four thousand same-sex marriages had been performed.

In early September 2005, the California legislature approved a bill to permit homosexual marriage. Governor Arnold Schwarzenegger vetoed the bill on September 29, 2005.

Civil Unions in Vermont

In 1999, the same year the Hawaiian Supreme Court refused to recognize same-sex marriages, the Vermont Supreme Court handed down its decision in Baker v. State. In that decision, the court said that same-sex couples must be granted the same benefits and protections that heterosexual couples received under state law. The court instructed the state legislature to determine how to grant homosexual couples those benefits and protections. It did not require the state to allow same-sex couples to be legally married but told the state legislature it had to find some way to treat those couples the same as if they were legally married.

The next year, the state passed a bill allowing same-sex couples to enter into "civil unions." Town clerks were authorized to give licenses to same-sex couples for these unions in the same way they would give out marriage licenses. They could be married by anyone authorized to perform marriages under state law and would have to divorce under state law in the same way heterosexual couples would.

Same-sex couples in civil unions in Vermont are entitled to all the benefits available under state law to married couples, including medical decisions, estate inheritance, overseeing burials, transferring properties, and certain tax breaks. Employers are required to treat civil union couples in the same way they treated other married couples, in matters including health benefits, marital status discrimination law, workers' compensation benefits, taxation, family leave benefits and wage assignment laws. The Vermont civil union bill was a landmark in the fight over gay marriages. For the first time, a state allowed gay couples to have all the same benefits as married couples under state law. Because Vermont refused to label these unions as marriages, it is less likely that they will conflict with other states non-recognition laws, although some commentators have suggested the Full Faith And Credit Clause might still apply.

According to the Vermont Secretary of State, in the first five years since the passage of the civil union law, 1,142 Vermont couples have been joined in civil unions. Moreover, 6,424 couples from other states and nations have also been joined in civil union in Vermont.

Recent Court Rulings against Same-sex Marriage

In 2003 in Standhardt v. Superior Court, the Arizona Court of appeals upheld a statute that prohibited same-sex couples from marrying. The court ruled that the statute was constitutional based on due process, equal protection, and rights of privacy provided in the Arizona constitution. The Indiana Court of Appeals made a similar ruling in January 2005 in Morrison v. Sadler. Numerous other states have right-to-marry cases winding their way through the court system.

State Laws

State DOMA laws are widespread; about half the states have enacted statutes that provide that marriage is confined to one man and one woman. About a third of the states have constitutional provisions that define marriage as only permitted between a man and a woman.

Massachusetts is currently the only state to allow same-sex marriages. Connecticut and Vermont permit civil unions. Vermont defines civil union as follows: "Parties to a civil union shall have all the same benefits, protections and responsibilities under Vermont law, whether they derive from statute, policy, administrative or court rule, common law or any other source of civil law, as are granted to spouses in a marriage."

Although most states prohibit same-sex marriages and civil unions, many provide some rights for same-sex couples that are available to married persons. The amount of protection provided varies greatly from just one or two rights in some states, to dozens of rights in other states. Following are some examples of rights that states have conferred to same-sex couples:

• hospital visitation
• the right to make healthcare decisions
• eligibility for certain tort claims
• family leave
• workers' compensation
• inheritance under intestacy laws
• state tax deductions or exemptions
• eligibility for family health insurance for state employees

Municipalities and Corporations

Municipalities have been generally more likely than states to grant same-sex couples the benefits of marriage than states. Since Berkeley passed the first domestic partnership law in 1984, dozens of cities and municipalities have enacted domestic partner-ship policies, including New York City and San Francisco. Although these policies do not legalize same-sex marriages (only the states can do that), they provide that same-sex couples will be treated the same as heterosexual couples under city ordinances and for such employment related purposes as health and disability benefits.

Many corporations, including companies such as Disney, Microsoft and IBM, also provide same-sex couples with the same benefits as married couples. This trend appears to be growing. According to the American Bar Association, as of March 2005, more than 7,600 private sector companies offered domestic partnership health benefits, and slightly less than half of all Fortune 500 companies did so as well.

Additional Resources

"A Matter of Full Faith" ABA Journal, July, 1996.

An Analysis of the Law Regarding Same-sex Marriages, Civil Unions, and Domestic Partnerships, American Bar Association, 2005.

The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment, Eskridge, William N., Jr., Free Press, 1996.

From This Day Forward: Commitment, Marriage, and Family in Lesbian and Gay Relationships Stiers, Gretchen A., St. Martin's Griffin, 2000.

Gaylaw: Challenging the Apartheid of the Closet Eskridge, William N., Jr., Harvard University Press, 1999.

"More Battles Ahead Over Gay Marriage" ABA Journal, February, 1997.

Organizations

Lambda Legal Defense and Education Fund

120 Wall Street, Suite 1500
New York, NY 10005-3904 USA
Phone: (212) 809-8585
Fax: (212) 809-0055
URL: www.lamdalegal.org
Primary Contact: Kevin Cathcart, Executive
Director