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

Defense of Marriage Acts

When Mayor Newsom created a firestorm by permitting same-sex marriage in San Francisco in 2004, some gay advocates expressed concern that his actions may have hurt the cause of marriage equality. Indeed, President Bush referred to San Francisco and Massachusetts when he announced his decision to support a constitutional amendment banning same-sex marriage.

But the sight of thousands of loving couples, many of whom had been together for decades, sharing vows and joining in marriage also did much to energize the proponents of same-sex marriage. San Francisco's decision to issue licenses to same-sex couples in 2004, while perhaps not of lasting legal significance, provided huge symbolic support for marriage equality and eventually resulted in the historic California Supreme Court ruling of 2008.

Sponsor Message.

Recently there have been encouraging signs of the increasing acceptance of same-sex marriage. Indeed, in 2011, three separate polls have shown that a bare majority of Americans support marriage equality.

But the achievement of marriage equality has been made more difficult by the Republican Party's routine use of same-sex marriage as a "wedge issue" by which to energize its base. Following the Hawaii decision in 1993, for example, states rushed to pass so-called "Defense of Marriage" Acts, which limit marriage to opposite-sex couples and bar recognition of any same-sex marriage or civil union from another state. Currently, more than 40 states have ordinances or constitutional amendments that limit marriage (and the recognition of out-of-state marriages) to opposite-sex couples.

The federal government passed its own Defense of Marriage Act in 1996, signed by President Clinton at midnight symbolically, if feebly, to express his disapproval. The Act defines marriage as the union of one man and one woman for all federal marital benefits and allows states to ignore the Full Faith and Credit Clause when dealing with same-sex marriages and civil unions licensed elsewhere. The constitutionality of the federal and state Defense of Marriage Acts is open to challenge, although given the conservatism of the current federal courts, such a challenge may be doomed to failure.

In the 2004 general election, 13 states passed constitutional amendments banning same-sex marriage. In the 2006 general election, another seven states adopted constitutional amendments banning same-sex marriage. However, in some of these states--Virginia and Wisconsin, for example--the 2006 amendments only barely passed, and in one state, Arizona, it failed, while in Colorado an amendment creating domestic partnerships almost passed.

What is especially disturbing about these amendments is that many of them ban not just same-sex marriage, but all forms of state recognition of same-sex couples. The Michigan amendment, for example, was interpreted by the Michigan Attorney General to mean that municipalities may not extend domestic partnership health care benefits to same-sex couples, an interpretation upheld by the state's conservative Supreme Court.

Amendments this sweeping may, however, be subject to attack under the United States Supreme Court's decision in Romer v. Evans. A federal district court in Nebraska struck down that state's extreme anti-marriage amendment under Romer v. Evans, though it was reinstated by a federal appeals court, and is now being appealed to the U. S. Supreme Court.

As more liberal judges are appointed to the federal judiciary by President Obama, and as more states permit same-sex marriage, an appeal to the U. S. Supreme Court challenging the Defense of Marriage Act is likely.

Two significant decisions from Massachusetts in July 2010 may provide the vehicle for invalidating DOMA in the United States Supreme Court. In these cases, brought respectively by Gay & Lesbian Advocates & Defenders on behalf of individual plaintiffs who had suffered loss of benefits because of DOMA and by the Office of the Attorney General of the Commonwealth of Massachusetts, Judge Joseph L. Tauro, a federal district judge, declared Section 3 of the Defense of Marriage Act unconstitutional.

This section of the 1996 law defines marriage as exclusively heterosexual for federal purposes. Judge Tauro, relying heavily on such Supreme Court rulings as Romer v. Evans and Lawrence v. Texas, ruled that this section violates the Fifth Amendment's equal protection principles and the Tenth Amendment's reservation of unenumerated powers to the states.

These rulings, if upheld on appeal to the First Circuit and then accepted for review by the Supreme Court, could well lead to the invalidation of DOMA. Significantly for the prospects of success in the federal courts, in 2011 the Obama administration announced that the Justice Department will no longer defend the consitutionality of DOMA.

European Registered Partnerships

The United States lags a good deal behind many other countries with regard to recognizing same-sex unions. Denmark was the first country in the world to enact a registered partnership law for same-sex couples in 1989. Norway was next in 1993, and then Sweden (1995), Iceland (1996), and the Netherlands (1998). The Danish, Norwegian, Icelandic, and Swedish partnership acts are available to same-sex couples only, while the Dutch law is available to same-sex and opposite sex couples.

In November 2000, the German Parliament (Bundestag) authorized "Life Partnerships." This action extended to gay and lesbian couples many of the rights that heterosexual couples enjoy, including the right to the same surnames, hospital visitation rights, rights as next of kin in medical decisions, some parental rights over the other partner's children, inheritance rights regarding health insurance and pensions, and so on. Subsequently, the Federal Constitutional Court of Germany has increased the rights enjoyed by same-sex couples, ruling in 2009 that registered partnerships should grant all the rights extended by marriage. A 2012 ruling extended tax exemptions to same-sex couples. Currently, registered partnerships grant virtually all the rights of marriage except the right of joint adoption.

Although some cantons had offered registered partnerships to same-sex couples since 2000, in 2005, Swiss voters were asked to decide if gay and lesbian couples should have equal legal rights as married couples.

The Swiss government and most political parties supported the measure, as did the Federation of Protestant Churches. Predictably, the Roman Catholic Church opposed it.

On June 5, 2005, Swiss voters approved, by a 58 percent majority, the national registered partnership law. It grants same-sex couples the same rights and protections as legally married couples, including next of kin status, taxation, and social security benefits.

The Swiss Registered Partnership law went into effect on January 1, 2007.

The European registered partnership acts essentially treat partners as if they were married, but with some exceptions, the most important of which being that none of them allow for joint adoption.

In 2005, Great Britain permitted same-sex couples to enter into civil partnerships that confer all the rights and responsibilities of marriage but that cannot be called marriage.

British Prime Minister Tony Blair hailed the civil partnership law as a "landmark measure" that "gives gay and lesbian couples who register their relationship the same safeguards over inheritance, insurance and employment and pension benefits as married couples. . . . No longer will same sex couples who have decided to share their lives fear that they will be denied a say over the partner's medical treatment or find themselves denied a home if their partner dies."

The French Civil Solidarity Pact

The French partnership law, which was passed in 1999 and is known as the "civil solidarity pact" or "pacte civile," is open to same-sex and opposite-sex couples and grants marriage-like rights in the areas of inheritance, housing, and social welfare. A civil solidarity pact can be terminated unilaterally by a partner, and no obligations follow on dissolution. The law does not confer inheritance rights, nor does it allow for adoption. The law is therefore more akin to a limited domestic partnership law than it is to the European registered partnership acts or to the civil union law. Still, it has proven popular with many French couples.

Dutch, Belgian, and Spanish Marriage

On April 1, 2001, the Netherlands became the first country in the world to legalize same-sex marriage, with the "Act on the Opening up of Marriage." The Act simply yet boldly proclaims, "A marriage can be contracted by two persons of different sex or of the same sex."

Couples in a registered partnership can convert their partnership into a marriage. But those who prefer not to can remain in their registered partnership, and couples can continue to enter registered partnerships rather than marriage if they so choose. According to the legislative findings, "the interest in registered partnerships in the Netherlands is relatively high . . . ." Interestingly, the government acknowledged that the popularity of registered partnerships "make[s] it plausible that there is a need for a marriage-like institution devoid of the symbolism attached to marriage."

Belgium became the second country in the world to recognize same-sex marriage, with a law that took effect in May 2003. However, unlike in the Netherlands, same-sex married couples in Belgium are still not allowed to adopt.

In June 2005, Spain became the third country to legalize same-sex marriage. The Spanish law allows same-sex couples to adopt. Upon the law's passage, Socialist Prime Minister Jose Luis Rodriguez Zapatero said, "We are not legislating . . . for remote unknown people. We are expanding opportunities for the happiness of our neighbors, our work colleagues, our friends, our relatives." Noting the developments in the Netherlands and Belgium, Prime Minister Zapatero proclaimed, "We were not the first, but I am sure we will not be the last. After us will come many other countries, driven . . . by two unstoppable forces: freedom and equality."

Canada

After a protracted struggle, Canada became the fourth country to allow same-sex marriage. The drive for marriage in Canada achieved a significant victory with the Canadian Supreme Court's 1999 decision in M. v. H. The Court ruled 8-1 that the exclusion of same-sex partners from the definition of spouse in the Ontario Family Law Act for purposes of spousal support violated the Canadian Charter of Rights and Freedoms. The court stopped short of declaring that same-sex couples have the right to marry, but the sentiment of the opinion seemed to suggest that such a step was soon to follow.

Activists quickly filed same-sex marriage lawsuits in Ontario, Quebec, and British Columbia. Appeals courts in all three of these provinces declared that prohibiting same-sex couples from marrying violates the Charter of Rights and Freedoms. The Ontario Appeal Court ordered the government to begin issuing marriage licenses to same-sex couples immediately.

In June 2003, Prime Minister Chretien's cabinet announced that the government would not appeal the ruling of the court. They agreed on a measure that would open marriage to same-sex couples throughout the country. A vote on the measure in the House of Commons was expected in the fall of 2003 but was postponed because of a change of prime ministers. The Canadian Parliament finally approved this measure in July 2005. The law does not require either party of the marriage to be a Canadian citizen.

After the favorable opinion in Ontario in 2003, thousands of lesbian and gay couples, including many same-sex couples from the United States, received their marriage licenses in Ontario, Quebec, and other provinces that subsequently legalized same-sex marriage through court action. Since parliament's action in 2005, same-sex marriage is legal throughout the country.

However, the Conservative minority government that took power in 2006 pledged to reopen the question of same-sex marriage, despite the fact that constitutional experts predicted legal chaos if the same-sex marriage bill were repealed and despite the fact that polls have consistently shown that a healthy majority of Canadians are in favor of same-sex marriage.

In December 2006, Prime Minister Stephen Harper fulfilled his campaign promise to reopen the question of same-sex marriage by introducing a bill that would have authorized the government to repeal the same-sex marriage law while respecting the same-sex marriages that had already been performed and instituting civil unions. Widely perceived as a sop to the evangelical Christian supporters of the Conservative Alliance party, the bill was soundly defeated. Afterward, the Prime Minister declared the question settled and promised not to revisit the issue.

South Africa

In 2005, South Africa's Constitutional Court found that the denial of the rights of marriage to same-sex couples violated the country's constitution, which prohibits discrimination on the basis of sexual orientation. The Court did not specify a remedy, but gave Parliament until December 2006 to adopt legislation rectifying the injustice.

Despite opposition from church groups and traditional leaders, the Parliament adopted legislation that both created civil unions and legalized same-sex marriage. On December 1, 2006, South Africa became the fifth nation to legalize same-sex marriage.

Norway

On June 11, 2008 the Norwegian Parliament approved legislation that permits homosexual couples to marry and adopt children and permits lesbians to be artificially inseminated.

Although the legislation was bitterly opposed by the Christian Democrats and a small far-right party, it was supported by the governing left-of-center coalition and individual members of other parties. After a heated debate, the legislation was adopted by a vote of 84 to 41.

The new marriage law replaces the partnership law of 1993, which provided homosexuals the right to form civil unions. Norway became the sixth country to grant same-sex couples the right to marry.

Sweden

On April 1, 2009, the Swedish Parliament followed Norway's lead and approved legislation permitting gay and lesbian couples to be married, thus making Sweden the seventh country in which marriage equality has been achieved.

Supported by six of the seven parties in Parliament, and on a vote of 262 to 22, the new law replaces the partnership law of 1995. It does not compel churches to perform same-sex weddings, but it is believed that many churches will do so.

Portugal

Although Portugal has a reputation as a socially conservative country, on May 17, 2010, it became the eighth country to embrace marriage equality.

The decision was the culmination of a long battle for recognition of same-sex couples. In 2001, Portuguese glbtq activists won an important victory when Parliament, over the vociferous protests of the Catholic church, voted to extend to gay and lesbian couples living together for at least two years the same limited rights of common-law marriage that they had granted to similar heterosexual couples two years before.

In 2004, protection against discrimination on the basis of sexual orientation was incorporated into the Portugeuse Constitution, thus setting the stage for the terms of debate about same-sex marriage, which increased in intensity after Spain achieved marriage equality in 2005.

Same-sex marriage was debated in the 2005 legislative elections, but the Socialist Party, which won the election, failed to clearly endorse marriage equality. Although the new Prime Minister José Sócrates refused to include same-sex marriage in his government's agenda, he promised to revisit the issue were his government re-elected to a second term.

Accordingly, after being re-elected in October 2009, the Prime Minister announced that his party, with the support of the Left Bloc, would propose a bill that permitted same-sex marriage but that would not include adoption rights (though gay men and lesbians are allowed to adopt as individuals).

Right-wing parties called for a referendum on the issue, but this proposal was rejected by the government.

On January 8, 2010, after a lengthy and impassioned debate, the Portuguese Parliament passed the bill establishing same-sex marriage in its first reading. During this debate the Prime Minister declared that passage of the bill would put right an injustice that caused unnecessary pain. The final parliamentary vote took place on February 11.

On February 24, the Constitutional Affairs Committee sent the bill to conservative Portuguese President Aníbal Cavaco Silva. Amid calls from right-wing parties and Catholic bishops for him to veto the legislation, the President asked the Constitutional Court to rule on the bill's constitutionality.

On April 8, 2010, the Portuguese Constitutional Court ruled 11-2 that the bill is constitutional, with three members concluding that the Constitution not only permitted but actually required the recognition of same-sex marriages.

On May 17, 2010, the President reluctantly signed the bill, acknowledging that if he vetoed it the veto would be overturned by Parliament. "I feel I should not contribute to a pointless extension of this debate, which would only serve to deepen the divisions," he said.

The achievement of marriage equality in Portugal was seen as a stinging rebuff to Pope Benedict XVI, who on a visit to Portugal days before the President signed the bill into law, bitterly denounced same-sex marriage.

Iceland

In contrast to the bitter political battles waged to achieve marriage equality in many countries, the decision to permit same-sex marriage in Iceland was made without controversy, perhaps because the Prime Minister of Iceland, Johanna Sigurdardottir, is a lesbian who entered a civil partnership in 2002.

On June 11, 2010, the Althing, Iceland's parliament, voted 49 to 0 to amend its marriage laws to permit the marriage of same-sex couples. The legislation does not require the state church to sanction same-sex marriage, but does permit ministers to perform same-sex marriages at their discretion.

Iceland thus became the ninth country to permit same-sex marriage.

Hungarian Life Partnership

In 2009, Hungary adopted a life partnership law similar to other European registered partnerships. The Hungarian law confers most of the legal rights of marriage on same-sex couples, including tax, employment, immigration, and inheritance benefits; but it does not permit partners to adopt or allow a spouse to take his or her partner's name.

Austrian Civil Partnership

In December 2009, Austria's Parliament passed legislation permitting homosexual couples to enter into civil partnerships. The legislation, effective January 1, 2010, was adopted on a 110-64 vote. It confers many of the legal rights enjoyed by heterosexual couples, but denies access to artificial insemination and the right to adopt children.

Ireland Civil Partnership

The climate for recognition of same-sex couples in traditionally conservative Ireland was vastly improved by the scandals involving Roman Catholic priests and nuns in the first decade of the twenty-first century. These scandals weakened the moral authority of the Church and enabled politicians to work for social justice without worrying about political pushback from the Church.

In 2009 and 2010, concrete proposals for a civil partnership bill were developed and refined. The bill that was finally signed into law on July 19, 2010, provides a wide range of protections, rights, and obligations for same-sex couples in areas such as pensions, taxes, social welfare, domestic violence, inheritance, and joint tenancy. It grants all the rights and responsibilities of marriage except the right to adopt children.

The bill, modeled on the U.K.'s civil partnership legislation, was, despite opposition from the Roman Catholic Church, passed without a vote in the Dàil and with an overwhelming majority in the Seanad at the beginning of July. It went into effect on January 1, 2011.

After it was signed into law by the President of Ireland, Mary McAleese, Minister for Justice Dermot Ahern described the civil partnership bill as "one of the most important pieces of civil rights legislation to be enacted since independence," adding that "Ireland will be a better place for its enactment."

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