It has been 10 years since the battle for gay marriage began in earnest in Hawaii. Where do we stand today?
“First they ignore you. Then they laugh at you. Then they fight you. And then you win.”
The quote is from Mahatma Gandhi, but it’s been borrowed many times by the leaders in the fight for marriage equality.
Today, 10 years since the issue entered the national consciousness for the first time, we are most definitely in the middle of phase three.
Will phase four follow? Yes. When? That’s the hard question.
Ten years ago, lawyers from Lambda Legal Defense were poised to win a breakthrough same-sex marriage ruling in Hawaii. The case had developed under the news radar, but by that summer, its implications had finally drawn the attention of the U.S. Congress. In July, the Senate began debate on the Defense of Marriage Act (DOMA), and the measure was signed into law in the dead of night by President Bill Clinton on Sept. 21.
DOMA created a national policy that has colored the last decade of the fight for marriage equality. The bill purported to leave the question of same-sex marriage to the judgment of the states. But by allowing each state to define a specific public policy, it set in motion a cavalcade of state laws explicitly banning same-sex marriage.
Within a few years, more than half the country had such “mini-DOMA” laws in place. As of now, 41 states have passed laws defining marriage as a union of one man and one woman.
In 2003, the U.S. Supreme Court appeared to extend a fundamental right to personal autonomy to gay and lesbian couples. Shortly on the heels of that decision in Lawrence v. Texas, the high court of Massachusetts ruled that the Bay State’s marriage restrictions violate the state constitution, extending equal rights to same-sex couples for the first time in American history.
These two decisions were set against the backdrop of Canada, where courts in province after province were legalizing same-sex marriage, and where the government had came out in favor of a national equal marriage law.
Convinced that their laws were now vulnerable to “activist courts,” states with mini-DOMAs started another stampede of marriage litigation and voter referendums. This time, the goal was to amend state constitutions to prevent courts from finding a right to marry in the unamended text and overturning the mini-DOMAs on state constitutional grounds.
As 2004 began, only four states had marriage amendments in place. Hawaii and Alaska amended their constitutions in 1998, fearing court victories. In 2000 and 2002, Nebraska and Nevada went directly to the amendment process, not bothering to pass an anti-gay statute.
But since August 2004, 16 other states have amended their constitutions to define marriage as a heterosexual union, and many of these have thrown in the equivalent of a ban on civil unions or domestic partnerships for good measure.
Since many states have both a mini-DOMA and an amendment, the country is now a patchwork. Sixteen states have both “protections” in place. Four others have amendments, but no statutes, including Alaska, Nebraska, Nevada and Oregon. And 25 states have mini-DOMAs, but no amendments.
Don’t memorize those numbers yet.
Of those 25 states, eight are scheduled to put marriage amendments to a vote this fall. Virginia, Wisconsin, Colorado, South Carolina, South Dakota, Idaho, Tennessee and Arizona make up that list. And despite some hopeful signs from Wisconsin and Arizona, history suggests that all eight amendments will pass.
For those of you without a calculator, only five U.S. states have not passed either a law, an amendment, or both. One, logically enough, is Massachusetts, where same-sex marriage has been legal since the high court’s deadline of May 2004.
Another is New Jersey, where not coincidentally, marriage advocates launched a freedom to marry lawsuit several years ago that is now awaiting a state supreme court ruling.
New York is a third, although there, the state’s highest court ruled 4-2 last July that same-sex marriage was not required by the Empire State constitution. New York, at this point, doesn’t really need an amendment to safeguard marriage for heterosexuals only. The top judges have taken care of the “problem” all by themselves.
In New Mexico, an independent spirit has resisted these national trends, although the state attorney general released an opinion stating that same-sex marriage would not be legal in the Land of Enchantment. Back in the spring of 2004, Sandoval County, New Mexico, followed San Francisco and Oregon’s Multnomah County in issuing marriage licenses to same-sex couples. The attorney general’s advisory opinion put an end to the rebel paperwork.
The final “free state,” if you want to call it that, is Rhode Island. Rhode Island isn’t about to amend its constitution or pass an anti-gay law, but a pending court case in Massachusetts means that a judge will soon have something to say about the status of marriage in the state.
Two Rhode Island lesbians are seeking the right to marry in Massachusetts, where non-resident couples may not wed if their marriage would not be legal under the laws of their own state. Would a gay marriage be legal in Rhode Island? Since the answer is unclear, it will be up to a Massachusetts judge to decide.
A conservative jurist has been assigned to the case.
A BLEAK LANDSCAPE
In terms of legislation and amendments, the American landscape looks pretty depressing for advocates of same-sex marriage, which includes the vast majority of the LGBT community. All but a handful of states outlaw marriage.
Almost half ban marriage by amendment. And polls suggest a little more than a third of the nation supports marriage equality.
Back in June, optimists would have pointed to pending marriage cases in the high courts of New York and Washington, anticipating that regardless of all those state regulations, same-sex weddings would likely be celebrated on both coasts by the summer’s end.
But in July, both those courts narrowly ruled against same-sex couples, triggering a wave of speculation that the legal fight for marriage had been waged and lost. It’s time, many commentators insisted, for the LGBT community to try to win equality through the court of public opinion, and through the legislatures of more progressive states.
Court cases don’t stop on a dime, however, and five major efforts to win marriage rights are surging ahead. The outcome of these cases, combined with the reaction of the American public and Congress, will answer the question of when gay and lesbians may finally join the rest of society in the rights and responsibilities of marriage.
First will come New Jersey, a state where two months ago almost any LGBT lawyer would have privately predicted a victory for marriage rights. But July’s court losses, which included a handful of lesser gay-related decisions, have left the legal community shaken.
Now, despite the excellent civil rights record of the Garden State and its high court, no one would tempt fate by pre-judging the pending case. Argued in February, the court is expected to rule before the Oct. 26 retirement date of Chief Justice Deborah T. Poritz.
Next will come California, where a state court appellate panel is expected to issue a ruling next month as well. A glance at the conservatives on the three-judge panel suggests that the coordinated marriage lawsuits in the Golden State may lose this round. But the cases will move on to the California Supreme Court, where previous gay rights decisions keep hope very much alive.
Also in the works are marriage equality suits in Maryland, where the state supreme court will hear arguments late this year; in Connecticut, where a lower court defeat will soon reach either the appellate court or the state supreme court; and in an Iowa lower court.
The Connecticut Supreme Court may jump in and take immediate review of the Constitution State’s case, allowing lawyers to skip the appellate court and save some time. If so, we may be looking at three final decisions on marriage in 2007 in California, Maryland and Connecticut.
Finally, gay lawyers have asked the Washington Supreme Court to set aside their 5-4 ruling and take another crack at the question of marriage equality. On the surface, this request seems unlikely to be granted. But, in fact, the Washington court has recently twice agreed to rehear cases. And both times, the justices have reversed their original rulings (see sidebar, Page 53).
Could this happen again? It’s hard to guess, but the Washington marriage ruling combined six different warring opinions into a tormented decision in favor of the status quo. Five of the nine justices must agree to rehear a case. Since four of the nine were strongly in support of marriage rights, only one other member of the court would have to vote to give marriage another chance.
THE FEDERAL AMENDMENT
A win in any of these lawsuits will fire up the energy that fuels the greatest threat to winning marriage equality in the near future, namely the drive to amend the U.S. Constitution to define marriage as a union of one man and one woman and to cast doubt on the legality of civil unions and other ties.
Called the Federal Marriage Amendment or the Marriage Protection Act, the idea has twice failed to come close to the two-thirds majority required in Congress. Democratic control of the House or Senate would seal its fate for some time, since although Americans don’t support same-sex marriage, there’s another poll that’s far more significant:
Americans don’t care about same-sex marriage.
Yes, when obliged to vote, big majorities come out in favor of “traditional marriage.”
But with the exception of the LGBT community and the far right, the subject is last on the list of voter concerns. Combined with a general reluctance to amend the federal Constitution, and considering the Democratic Party’s theoretical allegiance to the LGBT voter, a change in the majority party of either or both houses would turn an uphill climb into an ascent of Mt. Everest for amendment supporters.
Indeed, another marriage win would trigger another backlash, bringing out the talking heads, the commentators, the appalled conservatives, the demand for new judges. But would the backlash be as intense as the backlash of 1996 or 2003/2004?
Perhaps, given the gradual softening of public opinion, combined with issue fatigue and the “who cares” factor, the storm would move down to Category Two status.
Meanwhile, a victory in New Jersey or California would anchor the fragile foothold of same-sex marriage in this country, and open the doors of matrimony to thousands of same-sex couples who are presently locked out of Massachusetts.
And what about civil unions?
Second best, but certainly better than nothing, a true civil union is one that provides all the rights of marriage under state law to its registrants.
Currently, Vermont and Connecticut offer full marriage rights to civil union participants, while California does the same for registered domestic partners, a statewide status.
Interestingly, Colorado’s legislature has sent a referendum to the voters that, if passed, would put the Mountain State into this category. Colorado voters will have the chance, if they like, to pass an amendment defining marriage as one man and one woman, while simultaneously offering up a parallel system to gay and lesbian couples.
Maine, New Jersey and Hawaii have statewide schemes to register same-sex couples, but without the full rights that accompany what’s known as “Vermont-style” civil unions.
The fate of civil unions in these states and elsewhere is another subject.
What happens when a partner moves elsewhere and wants out? What if the couple relocates and one member dies? Is the civil union in force?
What happens in states where constitutional amendments may or may not recognize unions or partnerships? Can a public university offer health benefits to same-sex partners?
The possibilities for litigation both among gay married couples and same-sex domestic partners is as unlimited as the range of human predicaments.
Likewise, the more complicated the American systems, the more chaotic the legal consequences for relationships down the road. These, too, are factors that in time will weigh in favor of full marriage rights, a solution for the integration of same-sex families into American society that is not simply a matter of justice, but also a matter of pragmatism.
This article appeared in the Dallas Voice print edition, September 15, 2006.