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| California Gay Marriage Ruling Sparks New Debate |
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| Nation - Government | |||
| Christine Vestal | |||
| Friday, 16 May 2008 04:00 | |||
Washington, DC, USA. The California Supreme Court reignited a political wildfire with its ruling legalizing same-sex marriage in the most populous state in the union, but the issue already has burned out in more than half the states. More than four years ago, Massachusetts’ first-in-the-nation decision legalizing gay marriage sparked a political backlash that resulted in voter-approved constitutional bans on same-sex weddings in 23 states. Four states already had constitutional bans.
This year, voters in three more states — California, Arizona and Florida — are likely to consider similar bans.
In addition, high courts in three states — Maryland (2007), New York (2006) and Washington state (2006) — already have ruled against gay couples’ claims that matrimony is a state constitutional right. Two other courts, New Jersey (2006) and Vermont (1999), ruled that same-sex couples have the right to the benefits of marriage, but not the title. A similar case is awaiting decision in Connecticut, and
Iowa’s top court is expected to decide a gay marriage case in 2009.
Addressing the issue another way are eight states that have adopted marriages alternatives – either domestic partnerships or civil unions. Like California, 43 other states have statutes barring same-sex marriage, but the laws are subject to challenge.
With Congress so far unable to muster the two-thirds support needed for an amendment to the U.S. Constitution to ban same-sex marriage, the political battlefield over same-sex marriage in the wake of the California ruling has shrunk to a little over a dozen states that have not either protected their constitutions against rulings in favor of gay marriage or adopted marriage alternatives.
Although its affect on other states may be minimal, California’s historic decision Maycould energize voters opposed to gay marriage as they go to the polls to choose the next president on Election Day.
The three leading presidential candidates differ on the issue. Democratic frontrunner U.S. Sen. Barack Obama says he personally believes that "marriage is between a man and a woman," but also says that "equality is a moral imperative" for gay and lesbian Americans. His primary opponent, U.S. Sen. Hillary Clinton, opposes same-sex marriage, but favors civil unions in which gay couples receive full recognition and benefits. And Republican Sen. John McCain says he opposes gay marriage.
All three candidates voted against a proposed amendment to the U.S. Constitution that would ban same-sex marriage, according to research by the Pew Forum on Religion, which, like Stateline.org, is funded by the Pew Charitable Trusts.
In California, historically a bellwether of social change and home to hundreds of thousands of gay couples, the advent of same-sex weddings could profoundly affect public attitudes toward same-sex marriage, experts say. But in the weeks before the high court decision, state polls indicated Californians were equally split on the issue.
Following the decision — which overturned a 2000 voter-approved ban on gay marriage — Republican Gov. Arnold Schwarzenegger said he respected the ruling and reiterated his earlier opposition to the proposed constitutional ban. In 2005 and 2007, however, Schwarzenegger vetoed bills that would have legalized gay matrimony.
While most political attention is focused on same-sex marriage, gay couples have recently gained greater acceptance in several states with marriage alternatives, including domestic partnerships and civil unions.
In 2007, Oregon enacted a broad domestic partnership law that, like California’s groundbreaking 1999 statute, grants gay couples all the same rights and responsibilities enjoyed in traditional marriages. Also in 2007, Washington state joined Hawaii and Maine in adopting domestic partnership statutes that bestow certain spousal privileges, such as rights to hospital visits, approval of organ donations and inheritance without a will.
New Hampshire Gov. John Lynch (D) signed a law in May 2007 calling for same-sex civil unions, making the state the fourth to grant gay couples all state-level rights and benefits of marriage, but without the title. New Jersey began issuing civil-union licenses to same-sex couples in February 2007, joining Vermont and Connecticut in pioneering the marriage alternative.
While most moves to liberalize marriage laws have occurred on the nation’s coasts, a county trial judge in Iowa ruled in August 2007 that the state’s legislative ban on same-sex marriage violated equal rights protections in the state’s constitution. The case is now pending before the Iowa Supreme Court.
Connecticut’s Supreme Court is set to rule any day on whether civil unions fall short of fulfilling the rights of same-sex couples seeking to officially wed.
Even if the number of gay weddings in the United States is minimal so far — some 10,000 marriage licenses have been issued to gay couples in Massachusetts — the uproar over same-sex marriage has been deafening. In the last five years, the issue has rocked every state capital and inflamed passions in Congress and presidential campaigns, as advocates of equal rights for gays and lesbians faced off with religious and other socially conservative groups committed to protecting traditional marriage.
National polls indicate a majority of Americans oppose same-sex marriage. However, a poll released in August 2006 by the Pew Forum on Religion & Public Life indicates 54 percent approved of civil unions as an alternative to same-sex marriage.
Outside the United States, same-sex marriage is slowly gaining ground. The Netherlands legalized gay marriage in 2001, followed by Belgium and the Canadian provinces of Ontario and British Columbia in 2003; Quebec, Canada, in 2004; Spain and all other Canadian provinces in 2005; and South Africa in 2006.
As with many U.S. civil rights issues, courts have held the keys to marriage rights for homosexual couples. Only one state legislature not under court order — California in 2005 and 2006— has passed a bill to legalize same-sex marriage, but Schwarzenegger vetoed the measures.
While the Massachusetts ruling touched off the most recent four years of political frenzy over gay marriage, a Hawaiian circuit court judge in 1996 was the first in the nation to side with a same-sex couple denied a marriage license. But rather than risk a state Supreme Court decision in favor of gay unions, Hawaiian voters in 1998 rewrote their state constitution to give lawmakers, not the courts, the right to define marriage, and lawmakers subsequently voted to prohibit gay nuptials.
The Hawaii case sparked similar action in Congress, resulting in then-President Bill Clinton signing the Defense of Marriage Act (DOMA) in 1996. DOMA codified states’ right to decide whether to allow or ban same-sex marriage and defined marriage as a union between a man and a woman for federal purposes, such as claiming tax breaks for spouses and receiving deceased partners’ Social Security benefits.
Between 1973 and 2005, 45 states enacted statutes similar to the federal DOMA. But statutory bans were seen as providing limited protection that could be trumped if the courts found — as in Massachusetts — that denying a marriage license to a same-sex couple violated a right granted by a state constitution.
The first states to enshrine bans on same-sex marriage in their constitutions acted before 2004: Alaska, Nebraska and Nevada. Hawaii voters in 1998 also used their constitution to block gay marriage, though its amendment differs from those now passed in 26 other states. It cuts judges out of deciding gay-marriage rights but doesn’t include a definition of marriage as a union between a man and woman.
After Massachusetts issued the first marriage licenses to same-sex couples, voters in 13 states in 2004 rushed to rewrite their constitutions to limit marriage to heterosexuals. Two more states passed constitutional bans on gay marriage in 2005 and eight more in 2006. Arizona in 2006 became the first and only state so far to reject a ballot initiative to ban same-sex marriage.
Only three states have no laws either condoning or prohibiting same-sex marriage: New Mexico, New York and Rhode Island.
Federal attempts to change the U.S. Constitution to prohibit same-sex marriage nationwide have faltered. In 2004, President Bush announced his support for an amendment to ban gay marriage, but the Republican-controlled Congress in both 2004 and 2006 was unable to muster the two-thirds majority needed to send the issue on for ratification by 38 state legislatures. In 2007 and 2008, the new Democratic-led Congress kept the issue off its agenda.
The same-sex marriage controversy also is creating a host of legal issues beyond the question of whether gays should be granted marriage licenses.
Cases in Michigan and Ohio question whether those states’ constitutional same-sex marriage bans might have unintended consequences.
This year, a Michigan’s Supreme Court held that the state’s ban prohibited public universities, state agencies and local governments from offering health insurance to partners of gay and lesbian employees.
In Ohio, two lower courts cited the state’s gay marriage ban in denying protection under domestic violence laws to unmarried couples, although the state Supreme Court decided in July 2007 that the constitutional marriage prohibition did not affect the state’s domestic violence statutes.
Michigan and Ohio are among 17 states whose constitutional gay-marriage bans are written broadly and go beyond defining marriage as a union between a man and a woman to potentially prohibiting other rights of same-sex partners.
As with traditional marriages, not all same-sex marriages and civil unions have lasted until “death do us part.” As a result, state courts also are beginning to deal with divorce, child custody and probate cases involving same-sex couples.
In 2006, a Virginia judge gave sole custody of a child to a biological mother who is separated from her partner in a Vermont civil union. The case is now before the Virginia Supreme Court. In Vermont, the Supreme Court ruled that the non-biological parent may have visitation rights.
In Rhode Island, Attorney General Patrick C. Lynch broke new ground in February 2007 with a legal opinion making the Ocean State the first to recognize same-sex marriages performed in Massachusetts. In December 2007, however, the state Supreme Court ruled that couples marrying in Massachusetts could not divorce in Rhode Island.
Taking a different approach, a New York trial court in February 2008 recognized the Canadian marriage of two New York women and ruled the state did have authority to grant them a divorce.
New Jersey’s attorney general concluded in February 2007 that the state would honor civil unions from Vermont and Connecticut, and give civil-union status to couples married in Massachusetts or Canada and those registered as domestic partners in California. New Hampshire’s new civil union law includes a provision recognizing civil unions performed in other states.
FAQs At A Glance
 What states allow same-sex couples to marry? Massachusetts on May 17, 2004, became the first and only state to issue marriage licenses to same-sex couples who are residents. Massachusetts state law blocks out-of-state couples from marrying there. As of May 2007, more than 9,000 marriage licenses had been issued to same-sex partners. Gay-marriage opponents attempted to force a statewide vote in 2008 to forbid such unions, but the legislature voted to reject the measure at a June 14, 2007, Constitutional Convention.For a period of time in 2004, marriage licenses were issued to same-sex couples in violation of state law in San Francisco, Sandoval County, N.M., New Paltz, N.Y., and Multnomah County, Ore. Courts intervened and invalidated these marriages.
On May 10, 2007, the Suffolk County Superior Court in Boston approved the legality of Massachusetts marriage licenses issued to some 170 gay couples from New York. At issue was a 2004 decision by then-Massachusetts Gov. Mitt Romney (R) prohibiting out-of-state gay couples to marry in the Bay State if their home state prohibited same-sex marriage. The Suffolk County court upheld Romney’s ruling on July 6, 2006, but ruled this year that gay New Yorkers who wed in Massachusetts before that date had valid licenses.
Where are same-sex couples currently suing for the right to marry?Legal challenges seeking permission for gays and lesbians to marry are pending in two states: Connecticut and Iowa. A lower court in Connecticut ruled in July 2006 that excluding gay couples from marriage does not violate the state constitution because the state’s civil union policy provides equal access to state spousal benefits. The case was appealed in November 2006 to the state Supreme Court, which is expected to make a decision any day.
In Iowa, a county judge ruled Aug. 31, 2007, that equal protections in the state constitution guarantee gay and lesbian couples the right to marry. The case, filed in December 2005, is now pending before the state Supreme Court.
What is the difference between civil unions, domestic partnerships and marriage?Vermont created civil unions in response to a 1999 ruling by the state's Supreme Court ordering the Legislature to provide same-sex couples "the common benefits and protections that flow from marriage under Vermont law." Connecticut in April 2005 voluntarily became the second state to adopt civil unions. New Jersey in February 2007 began issuing licenses for civil unions after its Legislature — within weeks of an October 2006 state high court ruling similar to Vermont's — opted to adopt civil unions rather than marriage for same-sex couples. New Hampshire Gov. John Lynch (D) signed a law in May 2007 approving civil unions. Civil union laws in both New Jersey and New Hampshire recognize civil unions performed in other states. California and Oregon have nearly identical schemes that allow couples to register as domestic partners and claim all of the state benefits conferred on husbands and wives. California’s law was enacted in 1999 and extended to include all benefits in 2005.Oregon’s law was enacted in 2007. Washington has a domestic partnership law – adopted in 2007 and expanded in 2008 -- that includes most, but not all marital benefits. In a third category, Hawaii (1997) and Maine (2004) have registries that convey only a handful of benefits, including hospital visitation rights and inheritance without a will.
Unlike traditional marriages, civil unions and domestic partnerships are invalid outside the state in which they are granted – except in states that expressly accept them -- and do not provide any federal marriage benefits. Federal protections conferred by marriage include 1,138 laws and policies, such as Social Security, family medical leave, federal taxation and immigration policy.
What is the Defense of Marriage Act (DOMA)?Between 1973 and 2005, 44 states passed so-called Defense of Marriage statutes, which define marriage as solely a heterosexual union. Most of these laws are modeled after the federal Defense of Marriage Act, which was passed by Congress in 1996 and signed by President Bill Clinton. It bars federal recognition of same-sex marriages and allows states to ignore gay marriages performed elsewhere. What about states without same-sex marriage bans?Only three states now have no laws either condoning or prohibiting same-sex marriage: New Mexico, New York and Rhode Island. Rhode Island Attorney General Patrick C. Lynch broke new ground in February 2007 with a legal opinion making the Ocean State the first to recognize same-sex marriages validly performed in Massachusetts. Later that year, however, the Rhode Island Supreme Court ruled the state could not divorce a couple married in Massachusetts. In contrast, a New York trial court in February 2008 recognized a same-sex marriage performed in Canada and ruled the state did have authority to grant the couple a divorce. Why enshrine same-sex marriage bans in state constitutions?Constitutional Constitutional amendments banning same-sex marriage are seen as the best way to prevent courts from ruling that statutory same-sex marriage bans are unconstitutional and to forbid legal recognition of same-sex marriages performed in other states. Twenty-six states have changed their state constitutions to define marriage as a union between a man and a woman: Alabama, Alaska, Arkansas, Colorado, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia and Wisconsin. In addition, Hawaii has a constitutional amendment prohibiting state courts from legalizing same-sex marriage, instead leaving the decision to the Legislature, which currently prohibits same-sex marriage. Are all constitutional amendments banning same-sex marriage alike?No. In nine states, amendments simply define marriage as a union between a man and a woman. But in 17 states — Alabama, Arkansas, Georgia, Kansas, Kentucky, Louisiana, Michigan, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia and Wisconsin — constitutional amendments go beyond defining marriage. In two of the 17 states — South Dakota and Nebraska — amendments specifically prohibit civil unions and domestic partnerships. Amendments in the other 15 states contain broad language interpreted as prohibiting any type of spousal rights.How do same-sex marriage bans affect employee benefits?and attorneys general in several states have concluded that prohibitions on same-sex marriage are not intended to prevent same-sex couples from sharing health benefits. But gay-rights advocates are concerned that some broadly written same-sex marriage constitutional bans can be interpreted as prohibiting businesses and governments from extending benefits to employees' same-sex partners. An appeals court in Michigan ruled in February 2007, affirming the state attorney general’s finding that local and state governments, including state universities, cannot offer employee benefits to same-sex partners because of the state's same-sex marriage ban.
Are there legal challenges against the federal Defense of Marriage Act (DOMA)?In May 2006 the U.S. Court of Appeals for the 9th Circuit dismissed an appeal brought by two men who challenged the constitutionality of the federal Defense of Marriage Act, and the U.S. Supreme Court declined to consider the case in October.  What is the Federal Marriage Amendment (FMA)?President Bush in 2004 gave his support to the idea of a federal marriage amendment (FMA) to the U.S. Constitution that would ban same-sex marriage nationwide. Several versions of an FMA were introduced and voted on in Congress between 2004 and 2006, but none came close to receiving the required two-thirds support needed to pass. Federal amendments also would require majority approval in 38 of the states’ legislatures to be ratified into the U.S. Constitution. The president can offer his opinion but is not involved in the amendment process. Former Stateline.org Staff Writer Kavan Peterson did much of the research for this “Backgrounder.”
Stateline reports are prepared and printed with permission. TS-Si thanks The Pew Charitable Trusts for support and cooperation. Signed articles do not necessarily convey an official position of TS-Si, its partners, or affiliates. We welcome your comments. You can use the public form below or send private correspondence via the TS-Si Contact Page. We will not divulge any personal details or place you on a mailing list without your permission.                       Add this page to your favorite social bookmarking websites. To create link towards this article on your website, copy and paste the text below in your page. Preview :
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