Legal Debate over Same-Sex Marriages

▪ 2005

Introduction

by Andrew Koppelman

      Same-sex marriage came to the United States in 2004. The Massachusetts Supreme Court decided in November 2003 that the denial of marriage licenses to same-sex couples violated the state constitution and gave the state six months to comply with its order. The state consequently started issuing the licenses on May 17, 2004.

      The question of whether couples of the same sex should be allowed to marry has roiled American politics since a 1993 Hawaii Supreme Court decision seemed to indicate that that state would shortly have to recognize such marriages. Americans, however, have consistently opposed same-sex marriage by wide margins. In 1996 Congress enacted the federal Defense of Marriage Act, which declared that no same-sex marriage would be recognized for federal purposes, such as filing joint tax returns, the award of Social Security survivor's benefits, or medical insurance for the families of federal employees. The act also indicated (in a restatement of existing law) that no state (or other U.S. territory) was required to recognize marriages from another state when it had strong public policies to the contrary. To date, 43 states have enacted laws declaring that they will not recognize same-sex marriages from other states.

      The Hawaii court decision was overruled by a state constitutional amendment in 1998, but other states moved toward recognition of same-sex couples. In 1999 the Vermont Supreme Court declared that same-sex couples were entitled under the state constitution to the same legal rights as married heterosexual couples, and the legislature shortly thereafter enacted a law creating the status of “civil unions,” with all the rights of marriage but not the name. In 2003 California enacted a similar statute, calling the relationships “domestic partnerships.” Officials in some smaller jurisdictions, notably San Francisco, joined the controversy in mid-2004 by issuing marriage licenses in defiance of local prohibitions. All of these were soon held to be invalid.

      The Massachusetts decision was not the first legal recognition of same-sex marriage. The Netherlands (in April 2001), Belgium (June 2003), and Canada (July 2003) had already recognized such unions. Like the earlier Hawaii court decision, however, the Massachusetts ruling provoked a negative response in the U.S. The Massachusetts legislature narrowly passed a state constitutional amendment banning same-sex marriages and creating civil unions in their place, but the amendment would have to be considered again in 2005 and then be voted on by the electorate—so even if it succeeds, the ban cannot take effect before 2006. In the November 2004 elections, supporters of same-sex marriage gained seats in the Massachusetts legislature, and the new House speaker was a supporter of same-sex marriage who indicated that he might not even bring the bill up again. Pres. George W. Bush endorsed a constitutional amendment banning same-sex marriage throughout the U.S., but it failed in the both houses of Congress. Another bill, to deny federal courts the right to hear same-sex marriage cases, passed the House of Representatives but got no farther.

A Two-Pronged Debate.

      Part of the complexity of the issue is that the debate over same-sex marriage is really two different debates. The first is a normative debate about what relationships to value or even to sanctify. The second is a debate about administration—that is, which relationships ought to have legal consequences.

      The normative debate, which contains religious dimensions for many people, concerns what relationships are intrinsically valuable. The key question is one about objective moral reality: are same-sex relationships as such morally equal to heterosexual relationships, or do heterosexual relationships partake of a good that homosexual relationships cannot possibly share?

      On this issue, Americans are divided, with different groups adhering to two very different moral visions. According to the anti-same-sex-marriage vision, sex can be morally worthy precisely and only because of its place in procreation. Even the marriages of infertile heterosexual couples take their meaning from the fact that they form a union of the procreative kind. From this perspective the movement for same-sex marriage is a misguided attempt to deny fundamental moral distinctions. According to the other moral vision, sex is valuable, either in itself or because it draws people toward friendship of a singular degree and kind. This bringing together of persons has intrinsic worth, whether or not it leads to childbearing or child rearing. On this account, sexuality is linked to the flourishing of the next generation only to the extent that it is one of a number of factors that can bond adults together into stable familial units in which children are likely to thrive. From this perspective it is the devaluation of same-sex intimacy that is immoral, because it reflects arbitrary and irrational discrimination.

      The administrative debate concerns what relationships between persons ought to be given legal recognition. Here the issue is more mundane: how should resources be allocated and unfair disruption of people's lives be prevented? Households, of whatever kind, and relationships of dependency exist, and members of those households have wants and needs if some unprovided-for contingency arises, such as the illness or death of one member. Financial issues such as inheritance rights and employer benefits for dependents of employees also come into play.

Are “Civil Unions” the Answer?

      Because the moral and the administrative questions are distinct, many jurisdictions besides Vermont and California have opted to grant same-sex couples some or all of the rights of married couples without the honorific of “marriage.” Denmark, Sweden, Norway, Finland, Iceland, and New Zealand have legalized partnerships that are nearly identical to marriage, while more limited rights and responsibilities are available to same-sex couples in France, Germany, Austria, Hungary, South Africa, and Portugal, as well as in parts of Australia, Spain, and Switzerland. The U.S. constitutional amendment failed in part because it was so broadly worded that it seemed to some to prohibit civil unions as well as same-sex marriages.

      Civil unions, however, are also controversial. Many conservatives believe that same-sex relationships are morally wrong and should not be given any recognition at all by the state, while gay rights advocates object that withholding the name of “marriage” implies an inferior status. Finally, gay men and lesbians are not unanimous in support of same-sex marriage. Some gay rights proponents contend that their movement should focus instead on AIDS prevention, HIV and health care, antigay violence, immigration, employment discrimination, and the military's exclusion of gay service members.

      Many legal scholars have developed defensible arguments that same-sex marriage should be protected under the federal constitution, under either the guarantee of equal protection of the laws or the fundamental right to marry. It seems unlikely, however, that the U.S. Supreme Court will adopt these arguments in the near future. In Lawrence v. Texas, a 2003 decision that struck down laws criminalizing homosexual sex, the Court made clear that it was not about to touch the marriage question. Even if the court is inclined to support same-sex marriage—which is far from clear—it appears to understand that any such decision would almost certainly be overruled by a constitutional amendment.

Future Prospects.

      Same-sex marriage is likely to remain part of the American scene for a long time, but it is not likely to spread very widely any time soon. Massachusetts law cannot change until 2006, and even if the state court is overruled, it is not clear that marriages already in existence will not continue. Other states are beginning to sort out what effect Massachusetts marriages will have elsewhere. It is unclear what will happen if the validity of a same-sex marriage comes into question when a Massachusetts resident is visiting—or moves to—another state, or when a same-sex spouse from another country moves to the U.S. Meanwhile, a poll by the National Annenberg Election Survey reflected a generational divide on the issue; most Americans oppose same-sex marriage, but most 18-to-29-year-olds do not. The long-term goals of the same-sex-marriage movement are perhaps the most powerful reason why opponents are so eager to cement their position into the law now—while conservative political forces still dominate.

Andrew Koppelman is Professor of Law and Political Science at Northwestern University, Chicago, Ill., and the author of The Gay Rights Question in Contemporary American Law.

* * *