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Same-Sex Marriage  
 
page: 1  2  3  4  5  6  7  

Setbacks in New York, Washington, and Maryland

In a long-anticipated ruling on several New York cases, in July 2006 the state's highest court dealt a surprising blow to the momentum that was building for same-sex marriage in the country's second-largest state. In a 4-2 ruling, the Court of Appeal rejected the claim that the state constitution compelled same-sex marriage.

The ruling was especially disappointing because the majority seemed to have no interest at all in questions of justice or equity. It seemed to accept the dubious proposition that the purpose of marriage is procreation and implied that protecting the children of opposite-sex marriages was more important than protecting the children of same-sex marriages. The majority opinion makes a mockery of the notion of equal protection.

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The Court's chief judge, Judith S. Kaye, wrote a carefully reasoned dissent in which she noted that denying marriage to same-sex couples does not serve the interest of children. She predicted that future generations would consider the decision "an unfortunate misstep."

The ruling by the state's highest court had the effect of shifting the debate from the courts to the legislature. Polls in New York suggested that a majority of the state's population favors same-sex marriage. Still, the political struggle would be long and difficult.

In 2008, however, Governor David Patterson, in response to an appellate decision in one part of the sate, ordered that same-sex marriages legally performed in other jurisdictions be recognized as valid throughout New York state.

Scarcely two weeks after New York state's highest court declared that the state constitution did not compel marriage equality, a bitterly divided Washington State Supreme Court also rejected equal marriage rights for same-sex couples. In a 5-4 decision that generated five separate opinions, the court emphasized its need to defer to the legislature. Although the controlling three-judge opinion repeatedly said that the Court understood the difficulties faced by same-sex couples denied the protections of marriage, it was unwilling to direct the legislature to provide appropriate remedies. It did urge the legislature to reconsider the state's marriage laws.

The dissenting justices in the Washington case accused the majority of circular reasoning and of ignoring the discrimination faced by homosexuals.

Justice Mary E. Fairhurst questioned the logic of the majority's contention that the legislature's refusal to grant same-sex couples marriage rights somehow advanced the state's interest in procreation, pointedly asking, "Would giving same-sex couples the same right that opposite-sex couples enjoy injure the state's interest in procreation and healthy child rearing?"

Justice Bobbe J. Bridge bitterly disputed the majority's refusal to enforce equal protection for homosexuals, likening the idea "that it is not our place to require equality for Washington's gay and lesbian citizens" to condoning racial injustice. Had the majority's opinion prevailed in 1954 on racial issues, "there would have been no Brown v. Board of Education."

The disappointments in New York and Washington were followed by a similar disappointment in Maryland. In September 2007, in a 4-3 decision characterized by same-sex marriage advocate Evan Wolfson as "shallow and inadequate," the state's highest court upheld the state's ban against same-sex marriage.

Victory in New Jersey

In January 2004, the New Jersey legislature passed a domestic partnership law that provided some of--though not all--the benefits of marriage.

In 2002, seven gay and lesbian couples had initiated a lawsuit demanding the right to marry. Finally, in October 2006, the New Jersey Supreme Court issued its ruling. Coming after setbacks in the highest courts of New York and Washington, the New Jersey ruling, while not mandating marriage, was a significant victory in the battle for equal treatment of gay and lesbian couples.

A unanimous court ruled that "our State Constitution guarantees that every statutory right and benefit conferred to heterosexual couples through civil marriage must be made available to committed same-sex couples."

The court, however, left it to the state legislature whether the ruling be implemented by amending the marriage law in order to permit same-sex couples to wed or by creating a Vermont-like parallel system of civil unions. Three of the court's seven members dissented on the remedy, arguing that the state should simply allow same-sex couples to marry, and pointing out the symbolic value of the term marriage. Nevertheless, the legislature quickly adopted the civil union option, making New Jersey one of the first states to accord same-sex couples in civil unions all the rights and benefits of marriage.

Progress in Connecticut, New Hampshire, and Oregon

In April 2005, Connecticut became the first state to enact a Vermont-style civil union bill without a court mandate. The bill, signed into law by Republican Governor Jodi Rell, extended all the rights and responsibilities of marriage to same-sex couples, except for the right to marry. A companion bill defined marriage as the union of one man and one woman. The Connecticut civil union law took effect on October 1, 2005.

[On October 10, 2008, however, the Connecticut Supreme Court declared that the civil unions law was discriminatory and ordered the state to allow same-sex marriage (see below). Civil unions ceased being offered after October 1, 2010. However, civil unions entered into before that date continue to be honored.]

In 2007, significant progress in achieving something approaching equality for same-sex couples was also made in a few other states, including especially New Hampshire and Oregon.

The New Hampshire legislature adopted civil unions, similar to those provided by Vermont, Connecticut, and New Jersey.

[The New Hampshire civil unions law was repealed by passage of marriage equality in the state in June 2009. After that law became effective in January 2010, the state ceased offering civil unions. Couples already in civil unions were able to obtain marriage licenses at no charge; in 2012 civil unions were automatically be changed to marriage.]

Oregon opted for domestic partnerships similar to those in California. The Oregon domestic partnership law, passed by a Democratic legislature and signed into law by a Democratic governor, went into effect in 2008 and provides virtually all the rights made available to married couples. Inasmuch as Oregon passed a constitutional amendment banning same-sex marriage, the Oregon domestic partnership law scrupulously avoids terms such as marriage or civil union, while nevertheless making the rights and responsibilities associated with marriage available to gay and lesbian couples.

Domestic Partnerships in California

Beginning in 2003, the California legislature passed a series of laws that gave a growing number of important rights and responsibilities to same-sex couples who register as domestic partners.

In 2003, Governor Gray Davis signed a domestic partnership law, which took effect January 1, 2005. It is essentially equivalent to Vermont's civil union law and extends almost all marital benefits and responsibilities to couples in a domestic partnership. Since then additional rights have been added to the domestic partnership, which made domestic partnership almost equivalent to marriage in terms of the rights and responsibilities it accords, if not necessarily in terms of the respect and dignity conferred by the name "domestic partnership" as opposed to "marriage."

In September 2005, the California Assembly made history by becoming the first legislature in the country to pass a bill authorizing same-sex marriage. Governor Schwarzenegger vetoed this bill, as he did a 2007 bill also authorizing marriage equality, saying that he preferred to let the California Supreme Court decide the issue. This is ironic since in every state where a same-sex marriage case has been filed, opponents of same-sex marriage argue that the legislature should decide the issue, not the courts.

Victory in California Supreme Court

On February 12, 2004, San Francisco's Mayor Gavin Newsom announced that the city would begin issuing marriage licenses to same-sex couples. Literally overnight thousands of same-sex couples converged on city hall for their licenses. Riveting footage of couples waiting in line for hours and having their unions blessed on the steps of city hall brought national and international attention. These marriages, unfortunately, were soon nullified by the California Supreme Court, which did not at that time address the substantive question of the constitutionality of banning same-sex marriage but ruled that Mayor Newsom lacked the authority to issue marriage licenses to same-sex couples.

In the litigation that followed the San Francisco marriages, advocates for same-sex marriage won an impressive victory at the trial court, which ruled that the ban on same-sex marriage is unconstitutional. This decision, however, was reversed by the California Court of Appeals.

On May 15, 2008, the California Supreme Court, in a 4-3 decision, ruled that the prohibition of same-sex marriage is unconstitutional. The Court struck down two state laws that banned same-sex marriage and declared that the domestic partnership law was not sufficient.

Writing for the majority, Chief Justice Ronald George declared that the right to marriage is a fundamental right that must be accorded to same-sex as well as opposite-sex couples. "The right to marry," he wrote, "represents the right of an individual to establish a legally recognized family with a person of one's choice and, as such, is of fundamental significance both to society and to the individual."

Basing its ruling on the equal protection clause of the state constitution, the Court also adopted a new standard of review in determining claims of discrimination based on sexual orientation. Rather than the "rational basis" test, the Court ruled that claims of discrimination on the basis of sexual orientation require "strict scrutiny."

The ruling by the widely respected California Supreme Court is of enormous significance. Not only is California the largest of the American states, containing more than ten per cent of the nation's population, but its Supreme Court is a trend-setter. The high courts of some other states are likely to follow its lead.

Despite pleas from opponents of same-sex marriage and the attorneys general of eleven states, the Court refused to delay the effect of its decision, so on June 17, 2008, same-sex couples began marrying in California. Since California has no residency requirement, couples from out-of-state were also eligible to marry in the state.

Reversal at the Polls and in Court

At about the same time that glbtq people were celebrating the achievement of marriage equality in California, a coalition of anti-gay activists succeeded in placing on the November 2008 ballot a constitutional amendment that would override the Court's decision and ban same-sex marriage.

Known as Proposition 8, the amendment was supported by an extraordinarily well-financed campaign, the largest donors to which were members of the Church of Jesus Christ of Latter Day Saints (Mormons) and the Roman Catholic Church.

Despite polls indicating that Proposition 8 would be rejected, on November 4, 2008 it passed by a margin of 52% for and 48% against.

A stunned and bitterly disappointed glbtq community took to the streets to protest the injustice of stripping away equality rights. Many of the protests were directed at Mormon, Catholic, and Evangelical Churches.

Almost as soon as the votes were counted, lawsuits were filed challenging the constitutionality of Proposition 8.

Organizations including the American Civil Liberties Union, Lambda Legal Defense Fund, and the National Center for Lesbian Rights filed suit on behalf of Equality California and six same-sex couples asking the California Supreme Court to nullify the proposition.

This suit argued that Proposition 8 should be declared invalid because it improperly attempts to undo the state constitution's core commitment to equality and deprives the courts of their essential role of protecting the rights of minorities.

According to the suit, the California Constitution makes clear that a major change in the roles played by the different branches of government cannot be made by a simple majority vote through the initiative process, but must first go through the state legislature. Changes to the underlying principles of the constitution must be approved by two-thirds of both houses of the legislature before going to voters. Since this procedure was not followed by the proponents of Proposition 8, it should be declared invalid, the suit urged.

Other lawsuits were filed by the City Attorney of the City of San Francisco (joined by his counterparts in the City of Los Angeles, the County of Los Angeles, and Santa Clara) and by Robin Tyler and Diane Olson. The suit by the city attorneys made a similar argument to that of the gay rights organizations, that Proposition 8 attempted to revise rather than amend the constitution.

The suit filed by Tyler and Olson, who were among the first couples to be married after the ruling by the California Supreme Court in May, argued that Proposition 8 introduces a contradiction into the California State Constitution because it violates the equal protection clause.

Another suit was filed by several civil rights organizations, including the Asian Pacific American Legal Center, the California State Conference of the National Association for the Advancement of Colored People, the NAACP Legal Defense and Educational Fund, the Equal Justice Society, and the Mexican American Legal Defense and Educational Fund. This suit emphasized the danger that all minorities would face if the equal protection clause is subject to weakening by initiatives passed by a mere majority.

Still another suit was filed by feminist organizations.

In the aftermath of the election, it was not clear how the passage of Proposition 8 affected the legal status of the 18,000 same-sex marriages performed between June 17 and November 4, 2008. The Attorney General of California, Jerry Brown, issued an opinion that the marriages are valid and must continue to be honored by the state of California. However, this opinion was challenged by the supporters of Proposition 8, who pointed out that the language of the proposition clearly stated that California would "recognize" only marriages between a man and a woman.

On November 19, 2008, the California Supreme Court announced that it would review the lawsuits filed in the aftermath of the passage of Proposition 8. It asked the parties to the suits to file additional papers and scheduled oral arguments for March 2009.

On the basis of the questions asked during oral arguments in March 2009, many observers predicted that the Court would uphold Proposition 8, but that it would not invalidate the same-sex marriages performed between June 17, 2008 and the passage of Proposition 8 in November 2008.

That, in fact, was the decision that the California Supreme Court handed down on May 26, 2009. In a 6-1 decision, written by Chief Justice George, the Court upheld the ban on same-sex marriage, while also narrowing the issue to a dispute about a mere word. The ruling rejected all the arguments put forward by those challenging Proposition 8.

The Court emphasized that the state, through the domestic partnership law, gives gay and lesbian couples the ability to "choose one's life partner and enter with that person into a committed, officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage."

Asserting the Court's continuing commitment to subject laws affecting sexual orientation to "strict scrutiny," the decision characterized Proposition 8 as merely "carving out a narrow and limited exception" to the state's protection of same-sex couples, reserving the official designation of the term 'marriage' for the union of opposite-sex couples as a matter of state constitutional law."

Whereas in the earlier ruling, the Court had emphasized the significance of the word marriage, in this ruling the Court minimized its importance, in effect reducing the dispute to a matter of vocabulary.

The tone of the majority decision was curiously apologetic. Indeed, in emphasizing that domestic partnerships are the equivalent of marriage in all but the name, the ruling may have strengthened the domestic partnership law, making it possible for same-sex couples, for example, to refuse to testify against each other and claim other rights that married couples assume.

The majority decision let stand the 18,000 existing marriages because, the Court said, Proposition 8 did not include language specifically saying it was retroactive.

In a spirited dissent, Justice Carlos Moreno deplored the majority ruling, saying that Proposition 8 "strikes at the core of the promise of equality that underlies our California Constitution." Upholding it, he said, "places at risk the state constitutional rights of all disfavored minorities."

The ruling was bitterly assailed by proponents of marriage equality and sparked a number of protests and demonstrations.

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