Scorecard for Same-Sex Marriage
Christopher Heritage, Esq. | Fri, 01/22/2010

In all of world history, it is likely that the meaning and practice of marriage has never been discussed, dissected and wrangled over, as much as it has in the past three or four years. A strong push by the international LGBT community and many other supporters of equal civil rights has catapulted marriage laws into the forefront of news around the globe, and 2010 is guaranteed to be a year of action and revelation on every front.

Same-sex marriage is the issue, and lines have been firmly drawn in the sand. On one side, folks say marriage is only between a man and a woman, citing religious doctrine as the basis for their view.

On the other side, people say that all humans should have equal personal and civil liberties, and, most importantly, that the government should not offer special benefits or privileges to couples who are married when it prohibits other couples from being married and receiving those same benefits.

In California, we had a brief rendezvous with same-sex marriage in 2008, when the State Supreme Court ruled limiting marriage to a man and a woman was unconstitutional. For five months, same-sex couples could marry in this state, and over 18,000 couples did just that. Unfortunately, Proposition 8’s passage in November of that year, closed the marriage window for gay and lesbian partners, although all the same-sex marriages performed before passage of the initiative remain valid.

The loss of marriage rights in California was a shock to all of us here, and to those in other states and countries who had been diligently gathering support to establish same-sex marriage as a legal right everywhere. It was a back-to-the-drawing board moment for many. Retreat and dig in? Re-focus and charge forward? Or just settle for lesser liberties like registered domestic partnerships?

This year, more groups than ever before are raising funds to promote marriage rights, and all say they have renewed their determination to carry on. Polls show they are gathering more and more supporters and sympathy from the public every day. Some organizations have re-focused their efforts to educate the public, trying to raise awareness of the value of marital commitment and equal rights for all couples, gay or straight. Others are accelerating the push for a legal breakthrough on several fronts. Many are doing both.

We begin 2010 with victories and losses:

In the U.S., same-sex marriage is lawful in Connecticut, Iowa, Massachusetts, Vermont and New Hampshire. Washington D.C. just legalized same-sex marriage. It is subject to review by Congress, which is unlikely to reject it.

In California, Senate Bill 54 clarifying marriage recognition of same-sex couples was recently signed into law. Couples who married outside of California before the passage of Proposition 8 on November 5, 2008 are entitled to full recognition as married couples in this state. And, couples who marry outside of California on or after that date will receive all of the rights, benefits and responsibilities of marriage, except for the name “marriage.”

Maine voters rejected same-sex marriage, and the New York and New Jersey legislatures voted it down, as well.

Around the world, Portugal’s parliament just voted to permit same-sex marriage, joining Spain, Belgium, the Netherlands, Sweden, Norway, South Africa and Canada, where it is already legal. In addition, Mexico City and Buenos Aires have now legalized such marriages, with Argentina planning for country-wide legalization soon.

On the legal front, there are several actions that could greatly affect marriage rights here in the U.S. Two are of special significance because of federal constitutional issues:

A lawsuit brought by seven gay couples and three widowers who were married in Massachusetts, states that the federal Defense of Marriage Act (DOMA) violates the equal protection clause of the U.S. Constitution because it denies them access to federal benefits given to other married couples, and takes away the states’ power to determine marital status. Because of DOMA, same-sex marriages cannot be recognized by the federal government, and federal benefits such as pensions, health insurance, ability to file joint tax returns and many other benefits that are readily available to heterosexual married couples, widows and widowers are not offered to same-sex married couples in the state of Massachusetts.

A challenge to California’s Proposition 8 banning same-sex marriage has just begun trial in U.S. District Court before a federal judge, and it is likely that this case may be appealed to the U.S. Supreme Court before the dust settles. Brought by two same-sex couples who were denied marriage licenses after the passage of Proposition 8, the lawsuit claims that the ban is a violation of the equal-protection rights afforded by the U.S. Constitution. It is interesting that California’s attorney general and governor, who would normally defend any action against the state, have refused to defend it in court. The attorney general has filed a brief agreeing with the plaintiffs that gay and lesbian partners have the same rights to marriage as heterosexual couples. The governor has taken no position on the case. In their place, some of the original sponsors of Proposition 8 have joined the case to defend it before the Court.

And finally, a bill called the Respect for Marriage Act was introduced in the U.S. House of Representatives in September 2009. It would repeal DOMA and make it possible for same-sex married couples to receive federal benefits as heterosexual couples do in states where same-sex marriages are legal and/or recognized. The bill is currently in the House Judiciary Committee. We can’t know whether it will get the attention it deserves as Congress continues to fight the economic downturn—but it is a simple and straightforward bill that will make a serious wrong against same-sex couples right, and establish the foundation of equality that all same-sex marriages need for our future.