Gay Marriage and Death Penalty Rulings Roil States


Americans traditionally turn to the courts to settle battles over divisive social issues, from segregation and civil rights to abortion and assisted suicide. But debates over changing social mores almost always bubble up from state capitals, where even today governors and legislators are confronting such difficult questions as whether to sanction gay marriage or to end capital punishment.

The legal and social ripple effects of one widely publicized example will carry well into the new year and far from its starting point: The Massachusetts Supreme Judicial Court's November 18 ruling that the state must open the institution of civil marriage to same-sex couples. The 4-3 decision gave the Massachusetts legislature 180 days to rewrite the state's marriage laws.

Never before has a state court ruled so conclusively on marriage between members of the same sex. The Massachusetts ruling took a significant step beyond a 1993 Hawaii Supreme Court ruling that marriage laws were discriminatory, and exceeded the 1999 action by Vermont's high court that required marriage-like benefits for same-sex couples.

If and when the first marriage license is issued to a same-sex couple in Massachusetts, legal experts say advocates will be able to argue that such marriages must be recognized by all 50 states, based on the U.S. Constitution's equal protection and "full faith and credit" clauses. Those require states to apply laws equally and to honor the "public acts, record, and judicial proceedings of every other state."

The lead defendants in the Massachusetts case, Julie and Hillary Goodridge, have been together 16 years and are raising an eight-year-old daughter. "We've done all the legal work we can to protect our rights and the rights of our daughter, but we still have absolutely no legal relationship with each other," Julie Goodridge said.

"We still can't transfer assets to our spouse [or] benefit from each other's Social Security should one of us die, and we worry about emergencies when we travel, even with all the proper documentation."

Tony Perkins, president of the Family Research Council, a Washington-based group that opposes gay marriage, said, "Homosexual activists are cloaking their agenda with non-threatening arguments that focus on financial benefits and hospital visitation rights, privileges they are already afforded via a will, power of attorney or contract."

Conservative lawmakers have already proposed adding a Federal Marriage Amendment to the Constitution to define marriage as being between one man and one woman. It would forbid states from legalizing gay marriage or recognizing same-sex marriages performed abroad, while allowing them to grant civil union-type benefits.

On another front, former Illinois Gov. George Ryan (R) ignited a nationwide debate on capital punishment when he emptied the state's death row before leaving office in January 2003. Ryan commuted to life in prison the sentences of all 167 Illinois inmates on death row, saying a study that uncovered police corruption and racial bias in the state's capital punishment system left him no choice.

Thirty-eight states still authorize the death penalty, but Ryan's action refocused attention on the moral and legal questions surrounding capital punishment.

Some 112 innocent people have been freed from death rows in 25 states over the past three decades, including at least 10 in 2003.

"With these most recent exonerations ... the death penalty is falling apart at the seams. There is no question that additional cases of innocence remain uncovered on America's death rows," said Richard Dieter, director of the Death Penalty Information Center.

Sixty-five people were executed in 11 states during the first 11 months of 2003, down from 71 in 13 states in 2002. The nation's death row population declined for only the second time in 27 years, to just over 3,500.

Twelve states ban capital punishment: Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin.

Welfare also ranked among controversial state issues in 2003, with hard times and tight budgets straining social programs as poverty and unemployment rates climbed.

Nationwide, welfare rolls dropped slightly from 2002 to 2003, but the number of food stamp recipients increased for the third year.

Welfare rolls contracted dramatically after Congress in 1996 ordered most recipients to work or get job training. Although the overall number fell, however, the National Conference of State Legislatures said the rolls swelled by more than 20 percent in 15 states in 2003: Arizona, Colorado, Idaho, Indiana, Kansas, Maine, Mississippi, Montana, Nebraska, Nevada, South Carolina, Tennessee, Utah, West Virginia and Wisconsin.

Providing child care poses a major problem for states trying to help mothers get into the work force. Nearly half of states had waiting lists, according to the Center for Law and Social Policy (CLASP), an advocacy and research group.

Child care has become a sticking point in reauthorization of the landmark 1996 Welfare Reform Act, which expired in October 2002. Congress has been unable to agree on revisions to the law, often hailed as one of the most successful social policy changes of the past half century. President Bush wants to double the work requirements to 40 hours per week.

"Child care is the single biggest obstacle to reauthorization. There's a sharp dispute in how much child care is needed to meet work requirements," said Mark H. Greenberg, policy director for CLASP.

The House approved an increase of $1 billion for child care funding over five years, but Senate Democrats are pushing for $5.5 billion.

Editor's Note: The full Social welfare story will appear in our State of the States 2004 publication, available online and in print in January.


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