The One-Year Anniversary of Same-Sex Marriage in the United States:
Some Thoughts on Recent Developments, and on the Future

By JOANNA GROSSMAN


lawjlg@hofstra.edu
----
Tuesday, May. 17, 2005

One year ago today, Massachusetts began to issue marriage licenses to same-sex couples. Since then, more than 6,000 gay marriages have taken place there. Those marriages have been, in many ways, ordinary: some have been written up in the New York Times wedding announcements; they have all contributed to new marketing niches for the wedding industry; and undoubtedly some have already failed.

But the issue of gay marriage in America is, itself, far from resolved, as the continuous array of political, legislative, and judicial activity on the subject reveals. The first year has brought us no closer to a national consensus on gay marriage.

Still, the first birthday of same-sex marriage presents a good time to take stock of the checkered legal landscape.

Developments in Massachusetts: Will Same-Sex Marriage Survive?

Before gay marriages began to occur last May, the Massachusetts Legislature approved a constitutional amendment that would ban gay marriage but legalize civil unions. But that law is not yet in effect - and might never be.

Under Massachusetts law, such an amendment has to be approved, again, in a consecutive legislative session. It also has to be approved by voters and, procedurally speaking, the soonest this could occur is November 2006.

Last week, the president of the Massachusetts Senate took steps to convene a constitutional convention this fall. But it's not clear how voting will go this time: The composition of the legislature has changed, and opponents of same-sex marriage seem to have lost seats. Also, the fact that gay marriages now number in the thousands - with no obvious effect on the institution of marriage or society more broadly - seems to have caused some - perhaps many - to rethink their opposition to the practice.

For now, Massachusetts gay marriage is limited to state residents. This restriction -- which I have written about in a previous column -- is on appeal to the state's Supreme Judicial Court.

In this suit, Massachusetts couples' right to marry is not in jeopardy. However, a victory for same-sex marriage supporters could expand the right to include out-of-staters. And that, in turn, could mean an exponential increase in the number of same-sex marriages nationwide.

Developments on the Federal Level: A Constitutional Amendment Seems Unlikely

Meanwhile, at the federal level, efforts to ban same-sex marriage nationwide through a federal constitutional amendment have so far been unsuccessful.

The Senate Judiciary Committee has scheduled a hearing later this week to consider whether it believes there is a need for such an amendment. But absent a legislative sea-change, an amendment seems unlikely: Last summer's Federal Marriage Amendment failed to even gain enough support in the Senate to come to a vote.

Were such an amendment to pass, states like Massachusetts would lose the right to permit same-sex marriage, no matter how their own constitutions were interpreted. For now, however, same-sex marriage remains an issue to be decided state by state.

Will Other States Join Massachusetts in Permitting Same-Sex Marriage?

Lower courts in three states - New York, California, and Washington - have ruled that a ban on same-sex marriage violates the respective state's constitution. Each case is currently on appeal, as is a lower court ruling in New Jersey upholding a ban on same-sex marriage. A same-sex marriage victory in any of these cases would be significant.

At the same time, marriage-alternatives have gained broader acceptance. Vermont invented the Civil Union, a status that gives same-sex couples access to the exact same rights as married couples, save the label, in 2000. While it did so at the best of a ruling of its highest court declaring a ban on same-sex marriage unconstitutional, Connecticut adopted a civil union law last month of its own volition. Earlier this year, California established a "domestic partner" status that is virtually indistinguishable from marriage (or civil union).

On the whole, these three states - Vermont, Connecticut, and California -- now offer the most expansive protections for same-sex couples outside of Massachusetts. But in none is same-sex "marriage" - by that name - legal. Massachusetts remains alone in that regard.

Developments Abroad: Canada and Spain on the Brink of Approving Gay Marriage

Abroad, there have been significant same-sex marriage victories as well. Belgium and the Netherlands already permit same-sex couples to marry. Soon, it seems, Canada and Spain will join them.

The Canadian Parliament is on the brink of recognizing same-sex marriage countrywide. And nearly ninety percent of Canadians already have access to gay marriage via provincial court rulings.

Likewise, the lower house of the Spanish Parliament has already approved a bill permitting gay marriage - one that would require same-sex couples to have exactly the same rights as opposite-sex ones. Now, the bill proceeds now to the upper house. But if the upper house were to veto it, the lower house could override the veto. For this reason, the bill is widely expected to become law.

Anti-Same-Sex-Marriage Developments: The Legislative Front

All this good news for same-sex marriage proponents should not obscure the reality that quantitatively -- and perhaps qualitatively, too -- the losses for same-sex marriage outnumber the victories.

Eleven states amended their constitutions during the November, 2004 elections to ban same-sex marriage. The total number of states to ban the practice via constitutional amendment now numbers eighteen - and that number is likely to rise. Texas is part way through the amendment process, and observers expect a ban to be approved; several other states have proposals pending.

More than forty states expressly ban same-sex marriage by statute. And nearly all of the states also expressly refuse - via either a statute or a constitutional amendment -- to recognize a same-sex marriage validly contracted elsewhere. Courts in several states have upheld these bans against constitutional challenge.

Once one considers the constitutional and statutory bans together, there are only six jurisdictions that lack any express ban on same-sex marriage, but do not yet expressly permit it. They are New Jersey, New Mexico, New York, Rhode Island, Wisconsin and the District of Columbia. And in Wisconsin, both the state's highest court and the attorney general have held that current law does not permit gays to marry.

In these jurisdictions, the fight for same-sex marriage would not - at least, now - face legal impediments.

Federal Court Rulings: One Expected Loss, One Significant Victory

The Defense of Marriage Act (DOMA) is a federal law permitting states to refuse recognition to same-sex marriages. Earlier this year, in Wilson v. Ake, a federal district court in Florida upheld both DOMA, and the Florida law giving effect to it, as constitutional. In that case, a lesbian couple had married in Massachusetts and then sought recognition of their union in Florida. The court upheld Florida's right to ignore their union.

No other federal court has ruled on the questions of interstate recognition arising from Massachusetts same-sex marriages.

Perhaps the most interesting development to dot the landscape was a ruling issued just last week by a federal court in Nebraska. The court, in Citizens for Equal Protection, Inc. v. Bruning, struck down an amendment to Nebraska's constitution containing a broad ban on recognition for same-sex relationships.

Section 29 of the Nebraska constitution, adopted by voter referendum in 2000, provides that "[o]nly marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska."

This ban is especially troubling - as the Nebraska federal court found - because it smacks of bias, pure and simple. Rather than purporting simply to "protect" the institution of marriage by limiting it to heterosexual couples, it reaches out to try to invalidate any possible legal status another state might confer on same-sex couples, no matter how unlike marriage it might be.

Although more than four-fifths of the states ban same-sex marriage by statute or constitutional amendment, fewer than ten go beyond banning "marriage" itself. But Nebraska is part of the minority that has enacted more extensive bans on legal recognition of same-sex relationships. The meaning of scope of these various provisions is unknown, since they are essentially unprecedented. Thus, the Nebraska case was especially significant.

The case arose because Nebraska's attorney general opined that a bill to allow the domestic partner of a deceased person the power to authorize an anatomical gift, or dispose of remains, would violate the constitutional ban on legal recognition of a same-sex relationship.

If this interpretation is correct, then the Nebraska ban not only prohibits same-sex marriage, but it may also bar a whole host of other protections as well. Indeed, in the suit, the plaintiffs argued that Section 29 interfered with a variety of federally protected constitutional rights.

The district court agreed and struck down the provision on multiple grounds.

First, the court wrote, Section 29 interferes with two rights of association protected by the First Amendment - the right of expressive association and the right of intimate association. Both are implicated by Nebraska's ban, which expressly forbids certain forms of intimate association, and interferes with the ability of like-minded individuals to associate and petition the government for redress of their grievances.

It is the unusual breadth of the Nebraska provision that got it into trouble. A mere ban on same-sex marriage could be more easily (though not necessarily correctly) sustained under federal constitutional principles, since most courts would be likely to find that states have a compelling interest in protecting the institution of marriage. But, here, the ban on same-sex relationships is so broad as to call the state's motives into question.

In reaching its holding, the Nebraska federal district court drew on the U.S. Supreme Court's holding in Romer v. Evans. There, the High Court struck down an amendment to the Colorado Constitution that prohibited municipalities from adopting any law to protect gay rights. In Romer, the Court found especially objectionable the "special disability" that had been placed on gays and lesbians: They could only seek governmental protection through constitutional amendment - as opposed to the usual, majority-rules legislative process. This was truly an imposition of second-class citizenship.

The Nebraska federal court found Section 29 of the Nebraska Constitution objectionable for similar reasons: As the court explained, a "blanket prospective prohibition on any type of legal recognition of a same-sex relationship [such as Nebraska's] not only denies the benefits of favorable legislation to these groups, it prohibits them from even asking for such benefits." This prohibition "creates a barrier to participation in the political process that no minority population is ever likely to surmount."

On this same analysis, the Nebraska federal district court concluded that Section 29 violates the federal Equal Protection Clause as well. In Romer, the Supreme Court concluded that the constitutional amendment must fail even the most deferential standard of review, if it is borne solely of animosity to a particular group. The Nebraska court ruled that the provision here was similarly unconstitutional.

In addition, the court held that Section 29 constitutes an unlawful Bill of Attainder. Article 1, section 9 of the federal constitution prohibits legislatures from inflicting punishment on an identifiable person or group without judicial trial. This is a fundamental part of the American justice system: Crimes must be defined by statute, and convictions must be the result of trial by jury.

In the Nebraska court's view, "a legislative act that singles out a group and restricts its ability to effect political change amounts to punishment and can be a bill of attainder." The court viewed the nature of the deprivation embodied in Section 29 to constitute punishment, since it effectively disenfranchises them from seeking legislative protection for their relationships.

(If one doubts the validity of the court's logic, it's worth considering that felons are, in many states, deprived of the vote. In impairing the right of those in same-sex relationships to participate in the political process, Nebraska thus imposes the very kind of punishment that one must usually commit a serious crime to incur.)

Section 29, the court concluded, was intended to prohibit the ability of gays and lesbians to "effectuate changes opposed by the majority" and is thus invalid.

This ruling could potentially be very significant - if federal courts in other states follow its logic. If so, then even those states that seem locked into a position on same-sex marriage, may see their apparently-entrenched positions uprooted.

What Will the Future Look Like for Same-Sex Marriage?

In the end, the first birthday of same-sex marriage is like that of a child - a time when you can make only a timid prediction about how things will turn out.

The Nebraska decision's influence, as noted, has yet to be seen. At the same time, the outcome in the pending cases in New York, New Jersey, California, and Washington could dramatically change the landscape in support of same-sex marriage.

It is still too early to say whether same-sex marriages will make greater inroads through convincing - or forcing -- particular states to themselves grant marriage licenses, or through convincing - or forcing -- other states to recognize such licenses, once granted. Whether Massachusetts will remain the sole haven for same-sex marriage remains to be seen.


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University, currently visiting at the University of North Carolina School of Law. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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