Massachusetts One Step Closer to Gay-Marriage Ban
By Kavan Peterson, Staff Writer
Massachusetts lawmakers Monday approved a constitutional amendment that would ban gay marriage but legalize civil unions. By including the latter provision, lawmakers hoped to please citizens eager to define marriage as a union between man and woman in the wake of a pro-gay marriage state high court ruling and at the same time provide some of the benefits and rights sought by same sex couples.
The proposed measure now must pass the Legislature again in identical form during the 2005-2006 legislative session. That would send it to a statewide vote in November 2006.
Much is at stake for Massachusetts' 199 lawmakers who are deeply divided over how to respond to a November 18, 2003, state high court ruling that will allow same-sex couples to marry by May 17. The proposed measure would have no effect on the May 17 opening for same sex couples, but Republican Gov. Mitt Romney has said he may seek to delay gay marriages if the legislature approves a constitutional amendment this session.
By attaching a civil union provision, lawmakers hope to broker a compromise that will please citizens eager to define marriage as a union between man and woman and at the same time provide some of the benefits and rights sought by same sex couples.
But the compromise fell far short of satisfying the staunchest positions on each side of the issue, with conservatives opposing any legal recognition of same-sex relationships and gay rights supporters unwilling to relinquish equal marriage status.
"The supporters of same-sex marriage were successful in making sure that a poison pill was attached to the amendment," said Massachusetts Rep. James Marzilli, Jr., a Democrat supporting gay marriage.
Marzilli said he expects the proposed measure to go down in defeat when it comes up again during the next legislative session because religious conservatives will be unwilling to let Massachusetts become the first state to enshrine gay relationships in its constitution by approving civil unions.
Religious conservatives opposed to gay marriage are already collecting signatures to introduce a narrower amendment through the citizen initiative process that would ban gay marriage and civil unions.
Such a measure would need to pass two consecutive legislative sessions by one-quarter of the legislature, a much lower threshold than the 50 percent vote needed to pass the current amendment. The soonest such a measure could be adopted is 2008.
Since the Massachusetts Supreme Judicial Court ruling, legislation has been introduced in 26 states seeking to amend state constitutions to preserve the traditional concept of marriage as a union between a man and a woman. Such measures have failed in 11 states, but the debate is still raging in these 12: Alabama, Delaware, Illinois, Louisiana, Massachusetts, Michigan, Mississippi, Missouri, North Carolina, Pennsylvania, Tennessee and Vermont.
In March, Lawmakers in Utah and Georgia approved putting state constitutional amendments banning same-sex marriage before voters in their states on the November ballot. Both measures are expected to pass. A similar measure was approved by Wisconsin's Legislature this month but must pass the Legislature in 2005 before going to a statewide vote.
Four states Alaska, Hawaii, Nebraska and Nevada already have bans against same-sex marriage written into their constitutions. No statewide referendum to ban same-sex marriage ever has been voted down.
The first same-sex marriage ban to become law in the wake of the Massachusetts Supreme Judicial Court ruling was signed in January by Ohio's Republican governor, Bob Taft. Ohio's new law was not incorporated into the state's constitution, but it is the nation's strictest ban on gay marriage to date, exceeding previous same-sex bans by forbidding any public policy that extends marriage-like benefits to same-sex couples.
Congress, acting with President George W. Bush's blessing, entered the fray this month when the Senate began hearings on a proposed amendment to the U.S. Constitution that would supercede state action by banning same-sex marriages nationwide. While gay marriage foes view amending the U.S. Constitution as a sure-fire way to settle the matter once and for all, constitutional and academic experts say going this route to resolve the controversy would be neither swift nor certain.
Writing a ban on same-sex marriage into the U.S. Constitution would require a two-thirds vote in both houses of Congress a formidable political obstacle in and of itself and ratification by 38 state legislatures, a potentially even more difficult and time-consuming process.
"I would be extremely surprised if three-fourths of the state legislatures ratified such an amendment," Harvard constitutional scholar Richard Fallon said. "There may be an initial rush to ratify, but once things slow down it will be hard to create or sustain momentum."
Because the constitutional amendment process is so problematic, experts believe the battle over gay marriage will play out on a state-by-state basis and will likely end up before the U.S. Supreme Court.
The legislative activity under way in the states to preserve traditional marriage takes three basic forms:
- The toughest involves enshrining a ban on marriage of same-sex couples in the state constitution. Twenty-six states so far have considered such a move and 12 are still actively debating it. All would require passage by the legislature and then a statewide vote. They are: Alabama, Delaware, Illinois, Louisiana, Massachusetts, Michigan, Mississippi, Missouri, North Carolina, Pennsylvania, Tennessee and Vermont. Gay marriage amendments introduced in 11 states have failed or are expected to die without coming to a vote: Arizona, Kansas, Kentucky, Idaho, Indiana, Iowa, Maine, Maryland, Minnesota, Oklahoma and Washington. In Arkansas, Montana and Oregon, signatures are being gathered to place gay marriage amendments on the ballot in November.
- Sixteen states have debated statutory legislation that would either prohibit same-sex marriage, strengthen pre-existing gay marriage bans and/or prohibit granting marriage-like benefits to same-sex couples in lieu of marriage such as those provided under Vermont's civil unions law. Such measures have been approved by Ohio and Utah and are still active in 10 other states: Connecticut, Iowa, New Hampshire, New Jersey, New York, Oklahoma, Rhode Island, South Carolina, Tennessee, Virginia. Bills failed in Maryland, South Dakota, Washington and Wyoming.
- Alabama and Virginia have adopted non-binding resolutions urging Congress to pass a federal constitutional amendment. Similar resolutions are pending in 14 states: Arizona, Arkansas, California, Colorado, Georgia, Illinois, Iowa, Kentucky, Michigan, Mississippi, Ohio, South Carolina, Tennessee, and West Virginia.
The surge of legislation is due to the fact that since the U.S. Supreme Court struck down bans against interracial marriages in 1967, states have recognized all marriages performed legally in other states, even when they violate the state's marriage laws, such as marriages between first cousins, which are illegal in about half of states but recognized everywhere. To keep this precedent from applying to same-sex marriage, Congress in 1996 enacted the Defense of Marriage Act (DOMA), which bars federal recognition of same-sex marriages and allows states to ignore such marriages performed elsewhere.
Since 1996, 39 states have adopted statutory DOMA laws of their own and four of those states (Alaska, Hawaii, Nebraska and Nevada) have adopted DOMA amendments to their constitutions, according to the Human Rights Campaign, the nation's largest gay advocacy group.
Maryland, New Hampshire, Wisconsin and Wyoming have laws banning same-sex marriage that predate DOMA statutes. Marriage laws in the seven remaining states (Connecticut, Massachusetts, New Jersey, New Mexico, New York, Oregon and Rhode Island) do not specifically prohibit same-sex marriage.
However, legal and constitutional experts predict that DOMA laws soon will be challenged by gay or lesbian couples who legally wed in Massachusetts and seek recognition of their marriages in other states under the Fifth and 14th amendments to the U.S. Constitution. These amendments guarantee equal protection under the law and require states to honor the "public acts, record, and judicial proceedings of every other state."
Lower courts have ruled that in some cases a state can ignore the public acts of another state if it violates the "strong public policy" of that state, but the issue has not been fully tested yet in the courts.
"It's an open question under the Constitution whether or not states have the right to deny (same-sex) marriages," Columbia law professor Michael Dorf told Stateline.org.
Gay and lesbian couples have gained limited access to marriage benefits in a few states. Six states (California, Massachusetts, New York, Rhode Island, Vermont, Wisconsin) have introduced legislation this year that would permit same-sex couples to marry. Vermont in 2000 provided same-sex couples equal access to state-level marriage benefits through its civil unions law, including hospital visitation rights and the ability to make medical decisions for an incapacitated partner. Registered domestic partners in California will gain almost all of the state-level marriage benefits under a law that goes into effect Jan. 1, 2005. New Jersey recently adopted a similar state-wide domestic partner registery. Hawaii has a similar scheme called reciprocal beneficiaries.
Gay rights advocates criticize these measures because the benefits do not extend beyond the borders of the states where they are issued.
According to a 1997 U.S. General Accounting Office report to Congress, the federal DOMA denies gay partners 1,049 marriage rights and responsibilities recognized by the federal government. It says these range from major issues such as adoption and child custody rights, survivor's rights to Social Security benefits, tax-free inheritance of a spouse's estate, to smaller perks, such as family discounts at national parks.
The presumptive Democratic nominee for president, U.S. Sen. John Kerry of Massachusetts, has said he does not support gay marriage, but opposes amending the Constitution to preserve the traditional concept of marriage. He supports equal rights for gay couples through civil union or domestic partnership laws.
Recent public opinion polls show that nearly two out of three Americans oppose gay marriage, but the electorate appears split on amending the U.S. Constitution to define marriage as a union between a man and woman, with a slight plurality opposing such an amendment.