by Christine Vestal, Stateline.org Staff Writer
Three years after its historic court ruling legalizing same-sex marriage, Massachusetts stands alone in blessing gay marriages — 6,500 to date — and its example has spurred no imitators but lots of backlash.
Following the festive scenes of gay and lesbian brides and grooms waiting in long lines to wed in the Bay State on May 17, 2004, 23 states — for a total of 27 — fortified their state constitutions to withstand judicial edicts like the Massachusetts one. Massachusetts itself is considering a proposal to end its experiment with same-sex unions.
Gay-rights groups can point to some progress in expanding legal acceptance of same-sex relationships. New Jersey in February began issuing licenses to gay partners to enter into civil unions, joining Vermont and Connecticut in pioneering an alternative that bestows all the marriage benefits recognized at the state level without the title.
California grants full in-state marital benefits by allowing same-sex couples to register as domestic partners, while registries in Maine and Hawaii give gay couples a handful of spousal privileges such as rights to hospital visits and inheritance without a will.
But the key question is whether any states will follow the Massachusetts Supreme Judicial Court’s 4-3 ruling in November 2003. The court found that equal-protection guarantees in the state constitution made it illegal to deny full-fledged marriage to gays and lesbians.
All eyes now are on the highest courts in California, Connecticut and Maryland, where decisions on the constitutionality of gay marriage are likely this year. Maryland’s justices already have heard arguments on a lower-court ruling that found a right to same-sex marriage. Awaiting argument in California and Connecticut are appeals that will test whether even civil unions or domestic partnerships are legally inadequate substitutes for matrimony.
Even if the number of gay weddings in the United States is minimal so far, the uproar over same-sex marriage has been deafening. The issue has rocked every state capital and inflamed passions in Congress and presidential politics, as advocates of equal rights for gays and lesbians are pitted against 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 approve 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 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 — has passed a bill to legalize same-sex marriage, but Gov. Arnold Schwarzenegger (R) vetoed the measure.
While Massachusetts’ ruling touched off the latest frenzy of action on 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. 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 a backlash 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, 42 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 now 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. This year, the new Democratic-led Congress has kept the issue off its agenda.
State courts that have considered challenges from gay and lesbian couples have delivered conflicting verdicts on whether same-sex partners have a right under their state constitutions to wed.
The highest court in Massachusetts found it unconstitutional to deny same-sex couples the right to marry, requiring legislators to pass a law legalizing marriage. High courts in Vermont (1998) and New Jersey (2006) required lawmakers to extend the rights and benefits of marriage, but stopped short of requiring the title of marriage.
In contrast, the highest courts in Washington and New York found no constitutional guarantee to marriage or its benefits. Instead the justices in both states ruled in 2006 that only the legislature could decide whether marriage should be extended to same-sex couples.
The same-sex marriage controversy also is breeding 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. In February 2007, a Michigan appeals 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.
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 spousal rights.
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.
Last year 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 still is being litigated in Vermont courts, which have ordered the non-biological parent to pay child support.
Rhode Island Attorney General Patrick C. Lynch broke new ground in February 2007 with a legal opinion that would make Rhode Island the first state to recognize same-sex marriages validly performed in Massachusetts. The opinion was sought after three Rhode Island state employees who married same-sex partners in Massachusetts asked for a change of marriage status in their personnel files.
Similarly, 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 California couples who have entered domestic partnerships.
Since more than half the states have amended their constitutions to bar gay marriage, the torrent of ballot initiatives that flooded state legislatures in the past two years is slowing to a trickle. Still, bills seeking to put constitutional gay marriage bans on the ballot in 2008 are pending in 11 states: Arizona, Illinois, Indiana, Maryland, New Hampshire, New Jersey, New Mexico, North Carolina, Oklahoma, Washington and West Virginia. New Mexico lawmakers are considering a statutory ban.
At the epicenter of the gay-marriage debate, Massachusetts lawmakers in January 2007 gave preliminary approval to a constitutional amendment that, if approved by voters in 2008, would ban gay marriages and replace them with civil unions. However, lawmakers must approve the measure a second time this year before it can go to a statewide vote.
Bills aimed at legalizing gay marriage have been introduced in California, Illinois, Massachusetts, New York, New Jersey, Rhode Island, Vermont and Washington, according to the Human Rights Campaign, a gay-rights advocacy group.
Measures to establish civil unions have been proposed in New Hampshire, Montana, South Carolina, Rhode Island, New York, New Mexico and Hawaii, according to the National Conference of State Legislatures.
