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Same-Sex Marriage  
 
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Victory in Maine/Defeat in Maine

After a series of public hearings in which supporters and opponents passionately spoke about a proposal to permit same-sex marriage in Maine, the state legislature took up the question in the spring of 2009.

The legislature concluded their work on May 6, 2009, both houses having voted in favor of marriage equality. Within minutes of the bill reaching Governor John Baldacci's desk, the Governor signed it, ending intense speculation as to whether he might exercise his veto power.

Sponsor Message.

The Governor had expressed his belief that marriage was a union of a man and woman, and there was a widespread belief that he might either veto the bill or, at best, allow it to become law without his signature. But on further reflection, Governor Baldacci reached the conclusion that he had a responsibility to sign the legislation because not to do so would undermine the constitutional principle of equal protection under the law.

Declaring that "you cannot allow discrimination to stand," the Governor endorsed marriage equality.

Maine thus became the second state to enact an equal marriage law without being forced to do so by a court decision. However, despite the legislative victory, the new law never went into effect.

Soon after Governor Baldacci signed the bill, opponents announced that they would begin the process of gathering 55,000 signatures to subject the new law to a "people's veto," or public referendum. Opponents of the law in fact submitted more than 100,000 signatures. The marriage equality law was thus suspended pending the results of a referendum in November 2009.

Despite an effective and well-financed campaign to retain marriage equality in Maine, the referendum to veto the law was passed by a 53-47 margin in the election of November 3, 2009.

The defeat sent shock waves through the glbtq community, raising the question of whether it would ever be possible for marriage equality to prevail at the polls, at least until the most homophobic demographic--those over 65 years of age--die off.

It should be remembered, however, that despite its reputation for live-and-let-live libertarianism, Maine is not a liberal state, especially in comparison with other New England states. Indeed, the "people's veto" was used to derail anti-discrimination legislation twice before it finally prevailed.

In the actual campaign, the opponents of marriage equality, principally the Roman Catholic Church and its front group, the National Organization for Marriage, launched an assault on equal marriage rights by stoking fears that somehow legalizing same-sex marriage would have a deleterious effect on school children. At the same time, they ran ads saying that they had no objection to domestic partnership or civil unions, only to the "redefinition" of marriage. Notwithstanding the fact that the Roman Catholic Church and the National Organization for Marriage had consistently opposed domestic partnerships, their ads alleging their support of gay rights seem to have been effective.

Victory in District of Columbia

The District of Columbia City Council passed a domestic partnership bill in 1992, but because of Congressional intervention, it was not implemented until 2002. The District's domestic partnership is not limited to same-sex couples and offers a limited number of rights, such as hospital and jail visitation and some benefits for employees of the District.

On May 4, 2009, however, just as the Maine legislature was approving marriage equality, the Washington, D. C. City Council overwhelmingly approved a bill that recognizes same-sex marriages performed in jurisdictions where they are legal.

The bill was described by openly gay Council member David Catania as "the culmination of a long journey as we attempt to be true to our motto--'Justice for All.'"

Under the legislation, same-sex couples who live in the District and who have been married in other jurisdictions are granted such legal rights as joint filing of city tax returns and all private health care and pension benefits that are afforded heterosexual couples.

Catania regarded the bill as a precursor to full marriage equality. That goal advanced in December 2009, when the Council passed a bill on December 15 legalizing same-sex marriage, which was signed into law by Mayor Adrian Fenty on December 18.

Like all D.C. legislation, the law was subject to review by Congress, which had the power to invalidate it within 30 working days. Despite the attempts of some Republican Congressmen to invalidate the law, the Democratic-controlled Congress refused to intervene.

Opponents of same-sex marriage also sued in federal court, alleging that the law should be subject to a referendum. Finally, on March 2, 2010, Supreme Court Chief Justice John Roberts announced the Court's refusal to issue a stay of the legislation. Somewhat ominously, he pointed out that the law might be subject to repeal via the District's initiative process, though that question would have to work its way through the appellate process before reaching the Supreme Court.

On March 3, 2010, the District began issuing marriage licenses to same-sex couples.

In July 2010, the D. C. Court of Appeals rejected, on a 5-4 vote, an appeal by the opponents of same-sex marriage who wanted to force a referendum on the issue. On January 17, 2011, the Supreme Court of the United States announced that it had declined to hear an appeal of the D. C. Court of Appeals' decision.

Nevada Domestic Partnerships

On October 1, 2009, both same-sex and opposite-sex couples in Nevada were offered the option of domestic partnerships, which offer most of the rights and responsibilities of marriage in areas such as estate planning, medical decisions, community property, and child care.

The legislature had passed the law by comfortable, but not veto-proof margins, only to see the embattled Republican governor, Jim Gibbons, a Mormon, veto the measure, saying that the rights conferred by the legislation could be attained through contracts.

After much lobbying by Nevada's powerful gaming and tourism industry, which feared the possibility of a gay boycott of the state, both houses of the legislature voted during the final days of May 2009 to override the gubernatorial veto.

The law, which was sponsored by openly gay Senator David Parks, was hailed by Gary Peck, executive director of the ACLU in Nevada, who characterized the override as putting "our state on the right side of a growing movement to honor this country's promise that every one of us is entitled to equal treatment under the law."

Victory in New Hampshire

After a roller-coaster ride on the question of marriage equality, New Hampshire adopted marriage equality on June 3, 2009, becoming the third state to adopt same-sex marriage through legislative means rather than through a ruling by the judiciary.

The Democratic-controlled legislature passed a bill providing for equal marriage in May. Governor John Lynch, a Democrat who had earlier announced that while he supported civil unions, he was not in favor of same-sex marriage, said that he would veto the bill unless it contained explicit language exempting not only clergy from having to officiate at same-sex weddings but also stating that religious organizations would not be forced to participate in ceremonies celebrating same-sex marriages.

The Senate quickly amended the bill to include the language Governor Lynch demanded. However, the House demurred, defeating the new bill by two votes, raising questions as to whether the state would adopt same-sex marriage in 2009.

After further deliberation, the House and Senate agreed on compromise language that was acceptable to the Governor. On a 14-10 vote in the Senate and a 198-176 vote in the House, the legislature approved the bill, which was quickly signed by Governor Lynch.

In signing the bill, Lynch remarked that he had changed his previous position opposing same-sex marriage because he had come to the conclusion that "a separate system is not an equal system."

"Today," he said, "we are standing up for the liberties of same-sex couples by making clear that they will receive the same rights, responsibilities--and respect--under New Hampshire law."

Domestic Partnership in Wisconsin

In a very low-key development in 2009, Wisconsin became the first state with a constitutional ban on same-sex marriage and civil unions to adopt domestic partnerships.

Under the budget signed into law on July 1, 2009 by Democratic Governor Jim Doyle, same-sex couples are offered 43 of the more than 200 state rights and benefits extended to married couples, such as allowing domestic partners to take family and medical leave to care for a seriously ill partner, make end-of-life decisions, and have hospital visitation rights. In addition, domestic partners will be presumed to have joint tenancy rights, be able to transfer real estate without fee, and enjoy rights related to power of attorney and finances.

The domestic partnership law also allows state government workers as well as University of Wisconsin employees to include domestic partners in their group health insurance and retirement survivor benefits.

Although the domestic partnership provisions were adopted with little legislative opposition, they were challenged by the proponents of the constitutional ban on same-sex marriage in an appeal to the state supreme court. On November 4, 2009, the day after the disastrous defeat in Maine, the Wisconsin Supreme Court announced that it had declined to hear the challenge to domestic partnerships.

Veto in Hawaii / Civil Unions Finally Passed

In 2010, a civil unions bill was passed with comfortable but not veto-proof margins by Hawaii's House of Representative and Senate. The bill would have conferred on partners in civil unions all the rights and responsibilities of marriage.

After a long period of consulting with opponents and proponents of the bill, Governor Linda Lingle announced on July 6 that she would exercise her right of veto to prevent the bill from becoming law.

In vetoing the bill, the Governor called for a referendum on the issue, declaring "I have become convinced that this issue is of such significant societal importance that it deserves to be decided directly by all the people of Hawaii."

The veto of the civil unions bill sparked a call to action on the part of gay rights groups in Hawaii and on the mainland. The Human Rights Campaign, Equality Hawaii, and the lesbian-gay-transgendered caucus of the Democratic Party worked hard to register voters and to campaign for the election of former Representative Neil Abercrombie as Governor of Hawaii in the 2010 election.

In 2011, the legislature fast-tracked the civil unions bill that Governor Lingle had vetoed. In February, the state House of Representatives passed the bill by a vote of 31 to 18; in the Senate it was passed by a vote of 18 to 5.

When the law went into effect on January 1, 2012, Hawaii became the seventh state to provide same-sex couples civil unions or domestic partnerships with all the rights and responsibilities of marriage.

Upon the announcement of the Senate's vote on February 16th 2011, Governor Abercrombie issued a statement declaring that civil unions "respect our diversity, protect people's privacy, and reinforce our core values of equality and aloha. . . . this bill represents equal rights for all the people of Hawaii."

Civil Unions in Illinois

The question of whether Illinois should adopt civil unions was a campaign issue in the 2010 race for governor. Incumbent Governor Pat Quinn came out unequivocally in favor of enacting civil unions, while his Republican opponent was adamantly opposed, promising to veto any legislation that authorized civil unions unless it was submitted to the voters via referendum.

When Governor Quinn narrowly won reelection, the Democratic majorities in both houses of the Illinois legislature quickly moved to introduce legislation creating civil unions that provided all the rights and responsibilities of marriage for both heterosexual and homosexual couples.

The legislation was vigorously opposed by the Illinois Catholic Conference, but on November 30, 2010, the House voted 62-51 in favor of civil unions, and on December 1, the Senate followed suit on a vote of 32-24. When the civil union law took effect on June 1, 2011, Illinois became the twelfth jurisdiction in the United States to extend marriage, domestic partnerships, or civil unions to same-sex couples.

Setback in Maryland

With the triumph of many candidates who pledged to support marriage equality in the 2010 elections for the Maryland legislature, it was widely believed that Maryland would become the sixth U. S. state to legalize same-sex marriage.

At first, all seemed to be going according to schedule. On February 24, 2011, the state Senate passed the marriage equality bill on a 25-21 vote.

Inasmuch as passage in the Senate was believed to be the most difficult hurdle for the bill to overcome, most observers expected the bill to become law. However, passage of the bill in the Senate galvanized opponents of marriage equality--especially the Mormon Church, various African-American Churches, the Roman Catholic hierarchy, and the National Organization of Marriage--and many members of the House of Delegates were pressured to vote against the measure. Even some Delegates who had campaigned in favor of marriage equality began to waver.

Although the bill was reported out of the House Judiciary Committee, and several "killer amendments" were defeated, the bill was unable to muster sufficient votes on the floor of the House. On March 11, the marriage equality bill, on a voice vote, was recommitted to the Judiciary Committee, apparently dead, at least until 2012.

In response to the defeat, Washington Post columnist Jonathan Capehart denounced the "cowards in the state legislature who talked out of both sides of their mouths to the gay community and who refused to heed the call of leadership." He particularly called out "African Americans who can't or refuse to see that one's civil rights should not be encumbered by race or sexual orientation."

Delaware Civil Unions

On April 14, 2011, the Delaware state House, on a bipartisan 26-15 vote, passed a robust civil unions bill that accords gay and lesbian couples all the rights and responsibilities of marriage except for the name. The bill also provides that comparable same-sex unions including marriages from other jurisdictions will be recognized as civil unions in Delaware. The bill passed the state senate on April 6 on a 13-6 vote. Governor Jack Markell, a Democrat and a supporter of the bill, signed it to make Delaware the eighth state to enact robust civil unions or domestic partnerships.

"Today, we celebrate a victory for all Delaware families who will have the tools to protect themselves in good times and in bad," said Human Rights Campaign president Joe Solmonese.

Victory in New York

In 2009, marriage equality advocates suffered a humiliating defeat when a bill legalizing same-sex marriage in New York was rejected by the Democratic-contolled Senate after easily winning approval in the Assembly. Despite the strong support of Governor Patterson, several Democrats and all Republicans voted against the bill.

In response, gay rights groups, including Fight Back New York, targeted for defeat several Democratic legislators who did not support same-sex marriage, and in the 2010 election, many of those so targeted lost their seats, though the Republicans took control of the Senate when 32 Republicans were elected to the 62-seat chamber.

In 2010, however, Andrew Cuomo was elected governor by a large margin. He pledged to make marriage equality a priority of his administration.

In March 2011, Governor Cuomo met with representatives of the state's leading gay rights organizations, including the Empire State Pride Agenda, Freedom to Marry, Human Rights Campaign, Log Cabin Republicans, and New York Marriage Equality, and devised a highly disciplined campaign to build support in the state for marriage equality. By the summer of 2011, polls showed a solid majority of New Yorkers in favor of legalizing same-sex marriage.

Advocates moved aggressively to capitalize on that shift in public opinion, flooding the offices of lawmakers with phone calls, e-mails, and postcards and letters from constituents who favored same-sex marriage. In addition, high-profile supporters of marriage equality, such as New York City's Mayor Bloomberg and its openly gay Speaker of the City Council Christine Quinn, and both United States Senators from New York, as well as celebrities from Lady Gaga to Cynthia Nixon, lobbied wavering legislators.

Finally, on June 24, 2011, after a tense week of negotiations over religious exemptions and uncertainty as to whether the Republican majority in the Senate would even allow a vote, the bill was brought to the Senate floor and approved by a tally of 33 in favor to 29 opposed. The majority vote included all but one of the Democrats plus four Republicans.

The victory was widely seen as attributable to the strong and decisive leadership of Governor Cuomo and to the effectiveness of the campaign strategy he and the gay rights groups had devised in March.

Governor Cuomo signed the bill the very night it was passed. It went into effect on July 24, 2011.

New York thus became the sixth, and by far the largest, state to permit same-sex marriage. It was hoped that the victory in New York would build momentum for victories in other states.

Rhode Island Civil Unions

Soon after New York adopted equal marriage, the Rhode Island legislature passed a civil unions bill that accords gay and lesbian couples all the rights and responsibilities of marriage except the name. The law was adopted as a compromise after a same-sex marriage bill stalled in the state senate. Because the civil unions bill contained expansive religious exemptions, many glbtq activists urged Rhode Island Governor Lincoln Chafee to veto the legislation.

However, on July 2, 2011, Governor Chafee, a supporter of same-sex marriage, signed the civil unions bill into law, defending it as an incremental step toward the goal of marriage equality.

Victory in Washington

On January 4, 2012, Washington Governor Chris Gregoire announced her intention to introduce marriage equality legislation. In doing so, the Governor also explained the evolution of her personal views of the issue.

In 2004, when she first ran for governor, she endorsed equal rights for gay and lesbian couples, but declared that Washington state was not ready for same-sex marriage. In 2008, when she ran for re-election, she again declined to endorse marriage equality: "To me, the state's responsibility is to absolutely ensure equality. The other is a religious issue, and I leave it to the churches to make that call about marriage."

Now, she said, her views have evolved: "I have been on my own journey. I will admit that. It has been a battle for me with my religion," the Catholic governor said. "I have always been uncomfortable with the position that I have taken publicly. And then I came to realize the religions can decide what they want to do, but it is not ok for the state to discriminate."

Governor Gregoire's bill was passed by both houses of the legislature after several hours of debate. The debate in the House on February 9, 2012 was especially interesting, for several of the legislators referenced their children.

Openly gay Rep. Jamie Pedersen began the debate by saying that he and his partner are grateful for the protections provided by their domestic partnership, but that it is a "pale and inadequate substitute" for marriage.

Pedersen added, "I would like for our four children to grow up understanding that their daddy and their poppa have made that kind of a lifelong commitment to each other. Marriage is the word that we use in our society to convey that idea."

Rep. Phyllis Gutierrez Kenney said she has two sons who are gay. "Both have been subjected to harassment and rejection. This hurt cannot be erased, and some will last with them forever," she said.

Rep. Maureen Walsh, one of only two Republicans to support the bill, told a story about how her daughter stood up for a kid who was being bullied in school because it was the right thing to do. As an adult, her daughter came out of the closet.

At an elaborate signing ceremony on February 13, 2012, Governor Gregoire signed the bill into law. She said today "is a proud day that historians will mark as a milestone for equal rights." She told stories of several people who had contacted her during the debate about same-sex marriage, including a teenage girl who had considered suicide because of the way she was treated because of her sexual orientation, but said the debate had changed her mind.

"With the signing of this bill, Washington is the first state to repeal a so-called Defense of Marriage Act and make marriage available to gay and lesbian families," Pedersen said.

However, opponents of same-sex marriage quickly announced that they would attempt to qualify a referendum to repeal the law. When they turned in sufficient valid signatures in June 2012, the law was suspended pending the outcome of a referendum to beheld during the November 2012 general election.

Victory in Maryland

In February 2012, the Maryland legislature returned to the question of same-sex marriage. After the disappointment in 2011, Governor Martin O'Malley agreed to sponsor the marriage equality bill and to make it a top priority of his legislative agenda.

On February 17, 2012, after hours of tense and emotional debate, Maryland's Assembly reversed the action taken the previous year and passed the bill on a 72 to 67 vote. During the debate, Maryland's seven openly gay delegates urged their fellow legislators to pass the bill. "We should extend to families, same-sex loving couples, the right to marry in a civil ceremony," Del. Maggie McIntosh said in a hushed chamber after relaying her experience coming out as a lesbian. "I'm going to ask you today, my colleagues, to make history."

Two Republicans joined 70 Democrats in voting for the bill. One of them, Del. Wade Kach, said that his views on the issue changed after a hearing last week when he heard testimony from loving same-sex couples, including some with children. "My constituents did not send me here to judge people," Kach said.

Kach, who voted against the bill last year, was allegedly lobbied by high-profile Republicans, including former Republican National Committee chair Ken Mehlman, New York City Mayor Michael Bloomberg and former Vice President Dick Cheney.

On February 23, 2012, the Maryland Senate, as expected, passed the marriage equality bill. The vote was 25-22. Governor O'Malley announced that he would sign the legislation within a week.

Passage of the bill was regarded as a signal victory for Governor Martin O'Malley. In an interview before the Senate vote, Governor O'Malley explained to Michelangelo Signorile that after the failure of the bill last year he attempted to create a consensus in the state.

"I encouraged people to look at it through the eyes of children of gay and lesbian couples," he explained. "And it is not right, and it is not just, that children of gay and lesbian parents should have lesser protections. It was about equal rights for all."

Opponents soon gathered sufficient signatures to force a referendum on the bill in November 2012.

Ninth Circuit Decision on California's Proposition 8

Finally, on February 7, 2012, eighteen months after Judge Walker's eloquent decision that found California's Proposition 8 unconstitutional, the Ninth Circuit Court of Appeal ruled on the appeal of that decision. In a narrowly focused ruling, the three-judge panel found on a 2-1 vote that Proposition 8 is unconstitutional.

In the majority opinion written by Judge Stephen Reinhardt, the Court declared, "All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the term 'marriage,' which symbolizes societal and state recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for 'laws of this sort.'"

The Court rejected the claim that Judge Vaughn Walker should have recused himself because he is a gay man in a relationship and held that ProtectMarriage had standing to defend Proposition 8 when the Attorney General and Governor of California declined to do so.

The decision on the merits of the case relied heavily on Romer v. Evans, the landmark United States Supreme Court ruling in 1996 that invalidated a Colorado constitutional amendment that prohibited municipalities and state agencies from granting lesbians and gay men "protected status." In the decision written by Justice Anthony Kennedy, the Supreme Court concluded that the Colorado amendment "classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else."

Justice Reinhardt's decision in the Proposition 8 case stressed the similarity between Proposition 8 and the Colorado amendment struck down by Romer v. Evans: both "single out a certain class of citizens for disfavored legal status" and both withdraw from that class of citizens an existing legal right.

His decision emphasized the importance of the name "marriage" and concluded that the entire purpose of Proposition 8 was to deny same-sex couples the right to use that term to describe their relationships. Since Proposition 8 accomplished none of the ex post facto rationalizations of the initiative, such as encouraging childrearing and responsible procreation by heterosexuals, or even "proceeding with caution" in making marriage law or preventing children from being taught about same-sex marriage in school, it was enacted, the Court inferred, to express disapproval of homosexuals and their relationships.

The decision evaded the question of whether same-sex couples have a fundamental right to marry and purposely declined to address many of the questions raised by Judge Walker's more expansive decision. Rather, it focused narrowly on the unique legal situation in California in which the right of same-sex partners was extended by the California Supreme Court and then rescinded by a plebiscite.

Judge Reinhardt framed the issue this way: "The Equal Protection Clause protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason. . . . Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place. . . The action of changing something suggests a more deliberate [invidious] purpose than does the inaction of leaving it as it is."

Judge Reinhardt made explicit the fact that the Court did not address the question of a right to marriage: "We therefore need not and do not consider whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so. Further, we express no view on those questions."

By relying on the Romer v. Evans precedent, the Court was able to reach its decision by applying a "rational basis" analysis. In doing so, it evaded the question of whether sexual orientation discrimination requires "heightened scrutiny."

The biggest disappointment in the long-awaited ruling was that it was not unanimous. Although he concurred with the two judges in the majority on the questions regarding standing and the recusal of Judge Walker, Judge N. Randy Smith, one of the most conservative judges in the circuit, dissented from the ruling on the merits of the case.

Judge Smith's dissent was weak and vacuous, saying in effect that almost any possible reason, no matter how implausible, would satisfy the "rational basis" standard.

However, same-sex weddings did not resume in California immediately. The proponents of Proposition 8 sought an en banc review by the Ninth Circuit. When that was denied, they then sought review by the Supreme Court of the United States and the Ninth Circuit stayed its decision pending a final resolution of the case.

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