Warner Bros.We've come a long way from the days when activists opposed to a constitutional amendment could warn in horrified tones that it would lead to legalized gay marriage. Today that amendment—the ERA—is long dead, but the Supreme Court is hearing oral arguments in a couple of cases that could establish a legal right to same-sex marriage based on clauses that were in the Constitution already.
A certain amount of amnesia surrounds this issue. At a time when a National Journal reporter can casually claim that in the '80s same-sex marriage was "little more than a thought experiment," it's worth remembering that for countless people, same-sex marriage in the '80s—and earlier—was a day-to-day reality, even if the families they established didn't enjoy the same legal status as the families forged by heterosexuals. The movement toward marital rights for gays and lesbians didn't begin with a bill or a thought experiment. It began with ordinary couples who decided to marry whether or not the government was going to recognize their union. As I wrote two years ago,
public domainMembers of the same gender have been coupling off for centuries, sometimes with ceremonies that look rather marital to modern eyes. Here in America, gay marriages predate the modern gay rights movement. Six years before Stonewall, the 1963 book The Homosexual and his Societydescribed informal gay weddings where "all the formalities of [a] legally certified and religiously sanctioned ceremony are aped with the greatest of care."...As gay life became more visible, so did those permanent partnerships, and as social tolerance of homosexuality grew, more people accepted the partners' marriages as real. In 1992, long before any state recognized gay marriage as a legal right, Suzanne Sherman could fill a big chunk of a book by interviewing gays who had married and officiants who had blessed their unions. Such marriages were eventually honored by institutions outside as well as inside the gay community. By 1993, the list of companies that allowed domestic partners of the same sex to share benefits included Microsoft, Apple, HBO, Warner Bros., and Borders. By 2007, gay couples who wanted to get married at Disneyland were free to purchase the Fairy Tale Wedding package....
And so a social institution took hold: first among gays themselves, then in the larger community and marketplace. Finally the government took notice.
How did that evolution look in heterosexual America? Here's a "Dear Abby" letter from 1975, which some papers ran under the headline "Parents Disgusted by He-Man's Gay 'Marriage'":
Arnold LobelDEAR ABBY: Our tall, handsome, athletic son served four years in the Navy, returned to civilian life and college, and "married" an undersized, effeminite male hairdresser. We have no idea how to handle this situation or our ambivalent feelings.
This "odd couple" came to visit us, and they want us to visit them. They are inseparable and act out a peculiar husband-wife relationship that is both bewildering and disturbing to us.
So far we have been polite, but what the dickens do you say to friends and relatives? We can't condone it.
We love this boy, but as his parents we feel torn and hypocritical to say the least.
Abby's brief reply: "You owe friends and relatives no explanation, so don't feel obligated to offer any. Since your son's lifestyle bewilders and disturbs you, either learn to accept it or quit seeing him."
Seven years later, Abby was more willing to push a parent toward accepting a gay son's relationship. In a 1982 letter, "Pennsylvania Mom" wrote:
FoxDEAR ABBY: Two weeks ago I received a telephone call from my youngest son (29) who has been living in San Francisco for the last three years.
He told me that a priest had just married him to his friend, Jerry—another guy. He said he has never been happier in his life, and he asked me to tell everyone in the family about it.
So far I haven't told anybody because I'm not sure how some of our relatives will take it. For my part, I love my son, and all I want is for him to be happy.
Abby, is marriage between two men legal in California? This is a new one for me. And I would like to know what kind of "priest" would perform this kind of ceremony.
Abby replied: "Congratulations. You haven't lost a son, you've gained another son." She went on to explain that while gay marriages "are not legal anywhere," some clergy do "perform such ceremonies."
Some couples did try to get their marriages recognized by the state. Most famously, Jack Baker and Michael McConnell applied for a marriage license in Minneapolis in 1970; in the ensuing case, Baker v. Nelson, the Minnesota Supreme Court ruled that the men did not have a constitutional right to marry each other, declaring that marriage's status as "a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis." The U.S. Supreme Court refused to take on the case, though some legal scholars thought the petitioners deserved a hearing.
Baker and McConnell weren't alone. A county clerk in Boulder issued marriage licenses to six same-sex couples in 1975, though Colorado's attorney general later ruled them invalid. (One of the Boulder unions was between an American and an Australian. When the latter tried to use his marriage license to establish legal residency in the United States, a letter from the Immigration and Naturalization Service informed him, "You have failed to establish that a bona fide marital relationship can exist between two faggots.") In 1983 the Pennsylvania courts heard an early gay divorce dispute. One man, citing a 1970 ceremony, claimed that he and his ex were common-law spouses and asked for alimony. His partner denied that their relationship had been a proper marriage. The court sided with the second groom.
The topic turned up in the legislative and executive branches, too. In 1977, Florida Gov. Reubin Askew signed a bill to ban gay marriage. Generally speaking, you don't prohibit something unless you think there's a good chance it will otherwise exist.
PBSAnd yet the couples kept marrying, and with time more and more people accepted their unions as legitimate. That tolerance eventually took hold in governing bodies more powerful than a Colorado county clerk's office, and now the U.S. Supreme Court is tackling the topic. If the justices rule in favor of marriage equality, the history books will call it a landmark decision. And those history books will be right. But let's not forget all the events that came before the Supremes were willing to entertain the issue, and before any of today's political leaders took a stand.
Same-Sex Marriage: A Historical Introduction
Within the already controversial realm of gay rights, one of the most controversial topics is same-sex marriage. After extensive litigation, the U.S. Supreme Court ruled that same-sex couples have a fundamental right to marry. As a result, same-sex couples have a legal right to marry and to have their legal marriages recognized in every state. Below you will find a historical introduction to same-sex marriage.
For some, the idea that same-sex couples should have the same matrimonial benefits as heterosexual couples has been purely a question of civil rights. According to this argument, the constitutional concepts of Equal Protection and Due Process require that same-sex couples be treated no differently than heterosexual married couples. The Supreme Court largely adopted this position, alongside other arguments, when it issued its landmark Obergefell v. Hodges decision in June of 2015. The ruling explicitly states that same-sex couples have the right to marry and have their marriages recognized throughout the country on the basis of the Equal Protection and Due Process Clauses of the Constitution.
Moral Rights and Family Values
Others have seen same-sex marriage as a moral question, and concluded that such unions violate traditional Judeo-Christian ethical values. Another argument has been that it undermines family values: heterosexual marriage is founded upon the need to procreate, but procreation is biologically impossible for same-sex couples. To counter this argument, those in favor of same-sex marriages have noted that marriage has always been permitted for heterosexual couples who cannot or choose not to procreate. Many of these arguments and their rebuttals appear within the Obergefell decision, with the majority largely adopting the positions against the moral rights and family values positions.
Legal Benefits of Marriage Equality
The debate over gay marriage extended beyond the right to marry alone. Same-sex couples sought the same tax and estate advantages, the same rights to surviving children, the same community property rights, and the same health care benefits as heterosexual couples.
Although same-sex marriages have occurred privately for years, only recently has the issue been litigated. The Hawaii Supreme Court's 1993 decision in Baehr v. Lewin marked the beginning of serious litigation on the topic. After a series of victories and defeats on both sides of the issue, the Supreme Court's 2015 Obergefell ruling finally resolved the issue in favor of extending the right to marry, the recognition of same-sex marriage, and the attendant benefits to same-sex couples throughout the country.
Prop 8 and the Defense of Marriage Act (DOMA)
Prop 8 was a ballot proposition brought by opponents of same-sex marriage to prevent same-sex marriages in California. When Prop 8 passed its opponents filed a lawsuit complaining that the Proposition violated the Due Process and Equal Protection clauses of the Constitution. The private parties that supported the Proposition and got it on the ballot wanted to defend the law, but the State of California itself refused to do so. The U.S. Supreme Court ruled in Hollingsworth v. Perry that private parties lacked standing to defend a state constitutional amendment where the state itself refused to defend it. As a result, the case was dismissed for lack of standing. Prop 8 was consequently invalidated and many feel that the decision set the tone for subsequent decisions.
Similarly, significant portions of the Defense of Marriage Act (DOMA) were ruled unconstitutional by the U.S. Supreme Court in 2013's United States v. Windsor. DOMA was signed into law by President Bill Clinton in 1996 and barred federal recognition of same-sex marriages for purposes of receiving tax, insurance, immigration and other benefits. The Court struck down the federal law, stating that it denies same-sex couples the "equal liberty" guaranteed by the Fifth Amendment. The decision extended the right to federal benefits to legally married same-sex couples.
Marriage Equality Under Obergefell
Finally, in 2015 the U.S. Supreme Court's ruling in Obergefell v. Hodges made it clear that the denial of the right to marry, the refusal to recognize legal same-sex marriages entered into in another state, and the withholding of marriage-related benefits to same-sex married couples were violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. As a result of the decision same-sex marriage will be made available throughout the United States, the states must recognize the legal same-sex marriages of other states, and the rights and privileges of marriage must be extended to same-sex married couples. The decision effectively eliminates all legal distinctions between heterosexual and same-sex marriages at both the state and federal level nationwide.
Here are a few websites that contain additional information regarding the struggle for and against same-sex marriage equality around the nation:
Get Professional Guidance for Your Marriage Law Concerns
Marriage laws are changing constantly. If you have a question about same-sex marriage, civil unions, or domestic partnership laws in your state, speak with a family law attorney for assistance. A good lawyer can advise you about the current state of the law and any special legal protections you may want to consider. Start today and find an experienced family law attorney in your area.