Marriage bells had rung before for gay and lesbian Americans—in San Francisco, Portland, even tiny New Paltz, New York—but those that began to peal in Massachusetts May 17, 2004 are the only ones that continue to ring today. But in fits and starts, the nation is moving closer to marriage equality for gay and lesbian Americans.
The spring of gay weddings caused conservatives in Congress to step up the pace of 'hearings' on the Federal Marriage Amendment ( FMA ) but the media soon tired of the sham and began to drift away. It was clear that the constitutional amendment, requiring a daunting two-thirds majority, had nowhere near the support to clear that hurdle.
That became apparent to all when the Senate voted in July and supporters couldn't even muster a simple majority let alone the 60 votes necessary to close off debate on the contentious issue. The procedural vote failed 48 to 50 and several Senators who voted yes on the technical rule indicated that they would have voted against the substance of the amendment.
Democratic presidential candidate John Kerry and running mate John Edwards were the only two Senators absent for the amendment vote. Kerry continued to waffle on the issue throughout the campaign; opposing the FMA as unnecessary, supporting the antigay amendment to the Massachusetts Constitution. And just recently he criticized the state Democratic Party for supporting the existing same-sex marriage law within that state.
Stymied at the national level, social conservatives turned to the states with rhetoric of fears and lies on 'the threat to traditional marriage' posed by gays and lesbians marrying.
The backlash struck most forcefully on election day, primarily in the 'red states' where they had used it as an organizing tool to turn out their vote for George W. Bush. By the time every vote had been counted, 13 states had amended their constitutions to declare that marriage is only between a man and a woman—no queers allowed.
California has been among the most active states on gay marriage, as befitting its size and leadership on so many issues. The California Supreme Court voided the San Francisco marriages in August, saying that local officials did not have the legal authority to issue those licenses to same-sex couples.
The bigger legal decision was still to come. On March 14, state trial judge Richard A. Kramer struck down the ban on same sex marriage as a violation of the California Constitution. He stayed the decision pending appeal, which could take more than a year.
'The idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the court: separate but equal,' Kramer wrote. His opinion drew heavily upon the landmark 1954 civil rights decision Brown v. Board of Education, as well as the 1948 Perez case in which the California Supreme Court became the first to strike down a law banning interracial marriage.
California's enhanced domestic-partners legislation took effect in January and offers many of the same protections and benefits as marriage for registered partners. But that's not enough for openly gay Assemblyman Mark Leno. His bill to achieve gay marriage, by redefining marriage as between 'two persons,' passed the Judiciary Committee on a party line vote in April. The entire legislature is likely to let the courts handle this political hot potato for now.
Meanwhile, California's social conservatives who in 2000 successfully pushed the initiative to define the state's marriage law as between a man and a woman, Proposition 22, are gearing up a similar amendment to the state constitution.
New York is another bright spot. In February Judge Doris Ling-Cohan declared that state's marriage statutes discriminated against same-sex couples in violation of the New York Constitution. 'As other States have also observed, the right to marry is not a privilege conferred by the State, but a fundamental right that is protected from unwarranted State interference ... . It is a fundamental right of free men.'
'History demonstrates that marriage is not a stagnant institution ... . There clearly has been a steady evolution in the institution of marriage throughout history,' Ling-Cohan said in reviewing how women have changed from chattel of their husbands—at one point a husband could not be charged with raping his wife—to equals. The most recent significant change in marriage has been no-fault divorce.
Mayor Michael Bloomberg said he supports gay marriage but felt compelled by his office to appeal the decision. The case currently is wending its way through that process, which should take more than a year.
Across the Hudson River in New Jersey, Lambda Legal filed suit in 2002 on behalf of seven couples seeking to marry. It was thought to be one of the most promising jurisdictions for the case but it has drawn on longer than most had anticipated. Lewis v. Harris was heard before an appellate court in December of last year and a decision is expected at any time. Regardless of the outcome, it likely will be appealed to the state supreme court.
The latest poll from New Jersey shows voters in the Garden State continuing to support gay marriage by a 55 to 40 percent margin; that's about where it was two years ago when the last poll was taken. While in Massachusetts, the polls show that 62 percent of voters believe that gays should have the right to marry.
Out in Washington State, advocates worked with the King County (Seattle) executive to craft a constitutional challenge to the gay marriage ban. They were rewarded with a victory in the trial court in mid-August, which was stayed pending appeal. The Washington State Supreme Court heard oral arguments in mid-March; their decision could come by summer.
One faction of the GLBT community sees civil unions as a preferable alternative to marriage, while others see it as half a marriage loaf. But both factions could take some comfort in the fact that the Connecticut legislature, without pressure from the courts, last month enacted civil unions for gays. It was seen as a compromise rather than the alternative of marriage. It goes into effect in the fall.
The Governor of Oregon is urging the state legislature to pass civil unions legislation in light of the constitutional amendment that voters passed last November banning gay marriage.
Five years ago the prospect of marriage was only a dream for most gay and lesbian couples. One year ago it became a reality in Massachusetts. One year, or two, or five years more and it is likely to be an option in a handful of states, for more than a quarter of all Americans
