Gay and Lesbian Marriage

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Gay and Lesbian Marriage

The advent of marriage between same-sex couples marked one of the major cultural and social changes of the twentieth century in the United States. In 1970 gay and lesbian couples requested so many marriage licenses from the Los Angeles County Clerk, that the Clerk's office requested the California legislature tighten California marriage laws. However, despite this auspicious start, and the continued efforts of gay and lesbian activists and their supporters, it was not until the late 1980s that homosexual marriage was again hotly contested in the courts, the state and national legislatures, by the public at large, the mass media, and within the gay and lesbian community itself.

In 1971, Richard John Baker and James Michael McConnell brought the first case of same-sex marriage to court in Minnesota. Along with arguing their constitutional rights, they cited recent anti-miscegenation laws in support of their plea, all of which the court rejected. The first lesbian case, Jones v. Hallahan, was brought in Kentucky in 1973. Again, as would continually happen, the case was lost on the grounds of falling outside the "dictionary" definition of marriage. During the 1970s, a number of other court cases were lost, though there were a few small victories, such as a marriage license granted to a gay couple in Boulder, Colorado, which encouraged numerous gay and lesbian couples to apply successfully for marriage licenses. However, the decision was later overturned by the Attorney General and all licenses were revoked. In 1975 the Arizona legislature passed an emergency bill defining marriage as only being possible between a man and a woman. This bill set up a precedent for other state legislatures.

From the 1970s through the mid-1980s the rise of radical lesbian-feminism, coupled with AIDS concerns, dominated political energy and time within the lesbian and gay communities. Early radical lesbian-feminist theory argued against the institution of marriage in general, and many lesbians questioned the focus on lesbian and gay marriage rights. The graver issue of the AIDS epidemic so dominated people's lives that comparatively lesser issues such as marriage rights became secondary. Yet, ironically, it might be argued that both the lesbian-feminist movement and AIDS activism may have provoked the issue of same-sex marriages to re-surface by encouraging more people to come out. By politicizing increasing numbers of homosexuals, raising public consciousness about lesbian and gay issues, and attempting to eradicate the image of gays—most particularly men—as promiscuous people incapable of long-term relationships, the marriage issue once more came up for discussion. Additionally, the feminist movement's push towards passing the Equal Rights Amendments later had a great effect on an extremely prominent same-sex marriage case in Hawaii in the 1990s, where the state ERA was used as an argument for legalizing such marriages.

In 1986, the American Civil Liberties Union declared that they would seek to eliminate those legal barriers preventing lesbians and gays from marrying. In 1989, the San Francisco Bar Association called for gay and lesbian marriages, and two gay Chicago journalists filed complaints with the Illinois Department of Human Rights, accusing the state of sex discrimination for refusing gay marriages. By the 1990s, many activists were trying to force the passing of pro-marriage bills, while license applications and court cases continued, along with the filing of discrimination complaints with Human Rights Commissions. The issue started gaining momentum in the general public and, in 1989, a Time magazine poll reported 69 percent disapproval, 23 percent approval, and eight percent unsure on the issue of legalizing same-sex marriages. Three years later, in a 1992 Newsweek survey, the figures had altered to 58 percent against, 35 percent for, and seven percent unsure.

The most well-known court case to act as a catalyst in advancing the cause of same-sex marriage was that of Baehr v. Lewin, heard in Hawaii in 1991. Three same-sex couples sued the state of Hawaii for refusing to issue them marriage licenses, claiming that the refusal violated Hawaii's state Equal Rights Amendment (ERA) barring discrimination on the basis of sex. In May 1993, for the first time in U.S. legal history, the Hawaii Supreme Court ruled in favor of lesbian and gay marriage. In a December 1996 trial, Circuit Judge Kevin Chang ruled against the state of Hawaii on almost all counts, declaring that the state could not deny marriage licenses to same-sex couples and ordering the state to pay the plaintiffs' litigation costs. The next day, the judge stayed his decision pending appeal to the Hawaii Supreme Court.

Anti-gay groups and political leaders feared that lesbians and gays would flock to Hawaii to marry. They furiously worked to change the constitutional mandate providing interstate recognition of marriage whereby each state must recognize and honor a marriage license granted in any other state. The biggest blow to the gay and lesbian community came with the passage of the Federal govern-ment's Defense of Marriage Act (DOMA) in 1996, which defined marriage for federal purposes as a legal union between one man and one woman, and permitted states to ignore out-of-state gay and lesbian marriages, despite constitutional law that ruled otherwise. Activists planned to challenge DOMA.

By the late 1990s, over 30 states enacted some type of anti-samesex-marriage legislation, explicitly limiting marriage to one man and one woman. These 1990s laws differed from those passed in the 1970s because they discussed marriages within their own state as well as the interstate recognition of marriages. In the November 1998 elections Hawaii voters passed a ballot saying there should be a constitutional amendment defining marriage as one man and one woman. Although a blow to advocates of gay and lesbian marriage, a committee had yet to draft an amendment on which a vote would be taken. If passed, the amendment would make it more difficult, but not impossible, for a judge to declare same-sex marriage legal.

While conservative and right-wing elements battled against the gay marriage activists, the lesbian and gay communities also debated the issue. Many fought for same-sex marriage rights, believing they deserved the same civil rights as heterosexual couples. Others felt fighting for marriage rights was a middle-class white issue that detracted from broader issues, and that fighting for marriage rights was bowing to a conservatism to be "just like everyone else." Some lesbians and gays felt it was more important to fight for domestic partnership rights for all and abolish the age-old unjust institution of marriage for everyone.

Both within the lesbian and gay communities and the heterosexual constituencies, the heated debate as to what defines marriage continues to rage, and plays into the hands of the Moral Majority. Irrespective, however, to which side of the argument any one individual, state, or religious body adheres, the issue is one of major significance for legal and civil rights in both the national and local political arenas of the United States.

—tova gd stabin

Further Reading:

Dunlap, David. "Panel in Hawaii Recommends Legalizing Same-Sex Marriage." The New York Times. December 11, 1995, A18.

Feldblum, Chai R. "A Progressive Moral Case for Same-Sex Marriage." Temple Political & Civil Rights Law Review. Vol. 7, No. 2, 485.

"Fever." The Advocate, No. 712, July 23, 1996, 22.

Goldstein, Richard. "The Great Gay Marriage Debate." The Village Voice. January 9, 1996, 24.

Kopels, "Sandra. Wedded to the Status Quo: Same-Sex Marriage After Baehr v. Lewin. " Journal of Gay & Lesbian Social Services, Vol. 8, No. 3, 1998, 69.

Marcus, Eric. Together Forever: Gay and Lesbian Marriage. New York, Doubleday, 1998.

Martinac, Paula. The Lesbian and Gay book of Love and Marriage: Creating the Stories of Our Lives. New York, Broadway Books, 1998.

Patten, James M. "The Defense of Marriage Act: How Congress Said 'No' to Full Faith and Credit, and the Constitution." Santa Clara Law Review, Vol. 38, No. 3, 939.

Stiers, Gretchen A. From This Day Forward: Commitment, Marriage, and Family in Lesbian and Gay Relationships. New York, St. Martin's Press, 1999.