In the five years since gay couples started obtaining marriage licenses in the United States, 26 states have amended their constitutions to ban same-sex marriage, four state supreme courts have upheld such bans and more than 7,000 same-sex marriages have been nullified.
And yet, this week, on the fifth anniversary of the first legal same-sex marriages in the United States, there is little question that the political and legal winds are blowing in favor of gay marriages. Since Massachusetts became the first state to begin issuing marriage licenses to gay couples—on May 17, 2004—Connecticut, California and Iowa followed suit. California voters dealt gay couples a crushing setback last November by approving Proposition 8 to amend the state constitution to ban same-sex marriages. But the legislatures of Vermont and New Hampshire have approved bills, and New York and New Jersey appear to be in a race for who's next. A gay litigation group has been emboldened to take on a challenge of the 13-year-old Defense of Marriage Act ( DOMA ) in federal court. And former New York Mayor Ed Koch this week predicted "same-sex marriage will be approved by a majority of the 50 states in the Union within the next five years."
Keep in mind: It took 10 years of hard work to get to 2004.
Mary Bonauto, a key litigator in the initial victory in Massachusetts, noted in a telephone conference call this week that the work really began in Vermont in 1994 with her group, Gay & Lesbian Advocates & Defenders, and two stalwart lesbian attorneys—Beth Robinson and Susan Murray—in Baker v. Vermont. Two years later, gay attorney Evan Wolfson, then of Lambda Legal Defense and Education Fund, helped the ACLU stage the Hawaii marriage trial, Baehr v. Miike. The Vermont case won an important victory in the state supreme court in 1999 only to have its resolution tossed to the legislature, which then invented the "civil union." The Hawaii case won at the lower court level only to be rendered moot by the state supreme court after the state legislature rushed to be the first—in 1998—to amend their constitution to ban gay marriage.
Getting off the ground
Lots of people for centuries tried to get various contraptions to carry people through the sky, but it was the Wright Brothers who were credited with the "first flight" in 1903. And when it comes to getting "gay marriage" off the ground, the credit goes to Gay & Lesbian Advocates & Defenders in Massachusetts with Goodridge v. Department of Public Health.
When the Massachusetts Supreme Judicial Court released its opinion in Goodridg, on Nov. 18, 2003, it triggered a flood of media attention and political reaction both for and against. Gays were for and nearly everybody else was against.
The decision did not go into effect until May 17, 2004, and ABC-Washington Post polls in January, February, and March following the decision showed support for gay marriage was actually declining, while opposition was rising. That backlash may have been exacerbated, in part, by the media and political frenzy that erupted in February 2004, when San Francisco Mayor Gavin Newsom instructed city officials to begin issuing marriage licenses to same-sex couples there. The county commission of Portland, Ore., OKs same-sex marriage licenses there. A county clerk in New Mexico issues licenses; a mayor in New York State officiates at more than two dozen same-sex marriage ceremonies.
But in March, the California Supreme Court ordered city officials to stop doing so until the court had a chance to rule on whether the mayor's order violated a state law, passed by initiative in 2000, to bar recognition of same-sex marriages.
By August 2004, three months after Massachusetts started issuing marriage licenses to gay couples, a slew of court and ballot battles were underway over the issue and more than 7,000 same-sex marriage licenses have been subsequently voided. And an ABC-Post survey showed support for gay marriage at a new low—only 32 percent in support and 62 percent against. The controversy spilled into the presidential campaign and Democratic candidate John Kerry and Republican incumbent President George W. Bush united in their opposition to gay marriage. By November, voters in 13 states passed constitutional amendments to ban recognition of same-sex marriages.
But one year later, in August 2005, the ABC-Post poll showed the tide had turned once again. Support for gay marriage was climbing and opposition was waning. It's hard to pin down what was to account for the change and, except for the California legislature passing a same-sex marriage bill ( which the governor quickly vetoed ) , the tangible effects were still negative: another two states banned gay marriage. In 2006, another seven did so.
Then, between a poll in June 2006 and the most recent by ABC-Post in April 2009, support shot up and opposition was taking a nosedive. The latest ABC-Post poll results, released April 24, show 49 percent of those surveyed support legalizing gay marriage and 46 percent oppose.
The improvement occurred even as three more states passed anti-gay marriage laws and amendments and several state supreme courts ( Oregon, New York, Washington, and Maryland ) ruled gay couples had no rights to equal marriage licensing.
But small gains began to pile up too: Arizona, in November 2006, was the first to reject an anti-gay marriage amendment. The New Jersey Supreme Court ruled that state's constitution entitled gay couples to equal marriage benefits. Several other legislatures approved domestic partner laws—Washington and Oregon—and Connecticut, New Jersey, and New Hampshire legislatures approved civil unions.
Rocketing to new heights
Then, one year ago—on May 15, 2008—the California Supreme Court blew the issue into a whole new level, ruling that the state constitution requires equal treatment of gay couples in marriage licenses. That wasn't a novel legal determination—it echoed Massachusetts' court. But this was California, the most populous state in the nation, and what happens in California does not stay in California.
And unlike Massachusetts—which had an obscure law from 1913 on the books that enabled then Governor Mitt Romney to stop out-of-state couples from traveling there to marry—California's ruling opened up the state's Golden Gate to out-of-state gay couples seeking marriage licenses.
Within a month, thousands of gay couples were marrying in California and that continued until November, when voters narrowly approved Prop 8—to change the constitution to ban legal recognition of gay relationships of any kind, including marriage.
Lambda Legal and other civil rights litigation groups quickly mounted another court challenge, hoping to strike down Proposition 8. ( The results of that challenge—and the validity of an estimated 18,000 marriage licenses issued to gay couples in California—are expected from the California Supreme Court prior to its adjournment on June 3. )
And then, in October 2008, the Connecticut Supreme Court issued a similar ruling about that state's constitution and gay couples from all over the country could now travel there to marry. Things were rolling again. The Iowa Supreme Court began deliberating a Lambda Legal lawsuit testing its constitution. Democratic gains in state legislatures during the Democratic political sweep of November 2006 were providing friendlier reception for bills seeking equal marriage rights. The Vermont legislature passed its same-sex marriage bill and, last month, overrode a veto from its Republican governor. Maine this month passed a same-sex marriage bill and its Democratic Governor, John Baldacci immediately signed it. Both states will begin issuing marriage licenses to gay couples in September ( though the threat of a referendum on Maine's law may delay or undo its enactment. )
The New Hampshire legislature cleared a same-sex marriage bill there this month and is awaiting action any day now from its Democratic governor.
Kate Kendell, executive director of the National Center for Lesbian Rights and a key leader in the campaign to oppose Prop 8 in California, wrote in her blog that the recent spate of pro-gay marriage victories has rendered "a profound sea change in public opinion, including my own view of what the next month will bring here in California."
Kendell said that she now believes the California Supreme Court will "do the right thing" and uphold the state constitution's guarantee of equal protection."
"This is not a sea change," said David McCuan, a political science professor at Sonoma State University in California, in an interview with ABC News. "This is a tide that is slowly rising in favor of gay marriage."
"We're at an auspicious moment nationally," said Jenny Pizer, Marriage Project Director of Lambda Legal. "It's been only five years since the first marriages in Massachusetts and … it's the one-year anniversary of the California Supreme Court ruling" in favor of gay marriage. "We're on the edge of our seats," awaiting the court's ruling on the Proposition 8 challenge. But, she added, "we have to do the person-to-person work" of educating people about the importance of equal rights for gays, "regardless of what happens in the courts and the legislative bodies."
"That," she said, "is on all of our shoulders."
©2009 Keen News Service