In May 17th Massachusetts may become the first state to legally recognize same-sex marriages. Recent controversy over who is legally allowed to marry has led to new laws, judicial rulings and even a proposed constitutional amendment defining marriage.
Traditionally marriage has been a unique legal status conferred and recognized by governments worldwide. It brings with it a host of mutual obligations, rights, and protections. It is also a cultural institution that represents love and commitment between two people.
In 1993 the Hawaiian Supreme Court challenged the traditional notion of marriage and ruled that the state marriage law as it was then written denied same-sex couples equal protection rights in violation of the Hawaii Constitution. That decision set off a national and indeed an international debate about the definition of marriage. The Hawaii Legislature has since amended the state’s marriage law to provide that only marriages between a man and a woman are valid. Hawaii does however recognize “domestic partnerships” and “reciprocal beneficiaries.” The Hawaiian high court has refused to address the issue since the legislature amended the law.
In 2000 Vermont approved legislation to recognize “civil unions” between same-sex couples. This law granted them most of the obligations, rights, and protections that married couples have under Vermont law. The Vermont Legislature chose to preserve marriage as the “legally recognized union of one man and one woman,” but at the same time created a parallel system for same-sex couples. Last year, California’s State Assembly passed a domestic partnership law to provide similar benefits, but that law forbids same-sex couples to marry. Several other states have granted limited marriage benefits to gays and lesbians but called them “domestic partnerships.”
A civil union provides legal protection to couples at the state law level but differs from marriage in several ways. For example, questions remain about portability and how civil unions performed in a state such as Vermont will be treated in states that do not offer civil unions. Marriages are recognized state-to-state for all purposes under the Full Faith & Credit Clause of the Constitution. But the state appellate courts in Connecticut and Georgia have refused to recognize civil unions because their states do not permit civil unions. Terminating a civil union provides another set of issues. Married couples can get divorced in any state in which one party is a resident. But if a state does not recognize civil unions, there is no way to end the relationship in that state; in order to dissolve the union, the couple would have to establish residency in a state that recognizes civil unions and file for termination there. Civil unions lack the legal protections and advantages offered by the federal government, some of which include the right to take leave from work to care for a family member, the right to sponsor a spouse for immigration purposes, Social Security survivor benefits, Medicare benefits and tax advantages.
In November of last year the controversy became more complicated when the Massachusetts high court cleared the way for lesbian and gay couples in that state to marry. The Court’s 4-3 ruling stated that the Commonwealth’s attorneys “failed to identify any constitutionally adequate reason” to deny them the right. The Court said that same-sex couples are denied rights under the Equal Protection Clause of the Massachusetts Constitution. The November ruling gave the Legislature until May 17, 2004 to rewrite the state law to conform to the ruling.
With the May 17th deadline approaching in Massachusetts, opponents to gay marriage have gotten a state constitutional amendment through the first hurdle. This amendment, should it pass, would define marriage as a union between a man and a woman.
Earlier this year, San Francisco Mayor Gavin Newsom began granting marriage licenses to gay and lesbian couples despite a California law banning same-sex marriage. In less than a week more than 3,000 same-sex couples received marriage licenses. Officials in other cities and towns from Oregon and New Jersey to provinces in Canada have followed San Francisco’s cue and have begun granting marriage licenses to gay and lesbian couples.
It is unclear how the institution of marriage will finally be defined. What is clear is that there will be much more discussion which is guaranteed to stir passionate debate given the conviction of the participants. We will continue to follow and update this story so that we can explain what the possible ramifications are for people in our area.
— J. Kenneth Butera