Why Yes

History of Gay Marriage in America

Gay, lesbian, bisexual and transgender Americans have struggled to achieve legal recognition of their relationships for over forty years. The work of countless people from all walks of life has brought us equal marriage in two states and some form of protection in others, achievements that would have seemed impossible only a few decades ago. Despite many setbacks, the future is bright, and our efforts will continue until all loving same-sex couples have the full marriage rights they deserve.

The modern struggle for recognition and rights for the LGBT community, including equal marriage, gained traction with the Stonewall Riots of 1969. Police raided a gay bar in New York, an act of intimidation that was typical at the time. What wasn’t typical was the reaction—bar patrons protested, fought back when police threatened and bullied them, and eventually drew a huge crowd that transformed into a three-day riot.

The event inspired many people to organize and become more politically active. The resulting activist groups have formed the core of the community’s struggle for legal rights, including the right of same-sex marriage. The same year, Reverend Troy Perry of the Metropolitan Community Church presided over the United States' first public gay wedding, and in 1970 the church filed the first lawsuit requesting a marriage license for a same-sex couple. The Metropolitan Community Church has continued to be an advocate for marriage rights to this day.

Two short years later, a Minnesota couple went to a county clerk to file for a marriage license, but the clerk rejected their application because they were both men. They sued, leading to the first high-profile court case centering on same-sex marriage. The state Supreme Court ruled in the clerk’s favor, and the United States Supreme Court rejected their request for an appeal. This ruling, Baker v Nelson, has been used as a precedent to deny other couples marriage benefits, and gay-rights groups in Minnesota still consider it a roadblock to equality in their state.

Hawaii, Organized opposition and DOMA

Throughout the seventies and eighties, the problem of marriage took a back seat to other pressing issues, such as preventing housing and workplace discrimination, repealing laws criminalizing sexual activity between consenting adults, and the first marches on Washington for LGBT rights. States and municipalities began instituting employment non-discrimination acts and other laws protecting the LBGT community, and many states repealed their sodomy laws, but marriage discrimination remained the same.

In 1993, gay marriage moved to the forefront of the movement again when three same-sex couples filed a discrimination suit against their home state of Hawaii, which had turned down their requests to marry. They claimed that the state had no practical reason to refuse to issue them marriage licenses, and at first the courts agreed. The state Supreme Court ruled that the Hawaiian government had to prove that refusing to recognize their relationships was in the best interest of the state, or give them the same rights and benefits straight couples enjoy. For a single day, equal marriage became a reality in Hawaii before the judge issued a stay on his order. That stay remained in effect until a 1998 amendment to the state constitution effectively banned gay marriages.

The Hawaiian court case triggered a firestorm of controversy nationwide, and while it gave hope to many gay and lesbian couples, it also galvanized the opposition. Although the legal battle was restricted to one state, the entire nation had a stake because of the possible results of any one part of the United States allowing same-sex marriage. Normally, a marriage created in one state is respected by all others, even if spouses visit a place where the union would have been illegal, and the federal government acknowledges all marriages approved by the states. This is assured in a section of the Constitution known as the Full Faith and Credit Clause, and simplifies issues when two states have different ages of consent, for example. When miscegenation laws were still determined state by state, it provided security for interracial families. Some anti-gay groups and legislators pushed for an exception for same-sex marriage, so that this flexibility wouldn’t benefit gay spouses if they were allowed to marry in Hawaii.

State By State: Civil Marriages and Civil Unions

They supported a Constitutional amendment to specifically restrict the spread of same-sex marriage between states; this led to the Defense of Marriage Act, or DOMA, which prevents the federal government from recognizing same-sex marriages and dictates that no state must recognize another's marriage license if it belongs to a same-sex couple. At the time it was considered a compromise, since there was also talk of amending the Constitution to ban gay marriage outright, removing the states’ power to choose for themselves. By 1996, Congress voted with overwhelming bi-partisan support to enact it. Democratic President Bill Clinton signed DOMA into law, effectively banning any federal recognition of LGBT relationships and denying over 1,100 rights heterosexual couples can claim when their state recognizes their relationships.

Hawaii never legalized gay marriage, but DOMA has since restricted the rights granted to lesbian and gay couples who marry in Massachusetts or Connecticut. Former Congressman and 2008 Libertarian Presidential candidate Bob Barr, who wrote DOMA, now regrets his part in the law. In a recent L.A. Times article he remarked that “the heterosexual definition of marriage for purposes of federal laws…has become a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions”. He has expressed hope that it will soon be repealed.

The years following DOMA have seen a flurry of legal activity related to gay marriage—almost every state has passed laws either for or against it, and some have adopted the new option of civil unions as a compromise. In 1997, two lesbian couples and one gay male couple from Vermont brought a lawsuit similar to the one in Hawaii, requesting that their state issue them marriage licenses. Two years later the state Supreme Court issued a historic ruling that required Vermont to offer same-sex couples the same rights and obligations that heterosexual couples receive through marriage.

The state established civil unions as an institution that grants all rights and responsibilities available through marriage. This was the first time a state would legally recognize same-sex relationships, although they avoided the word “marriage” to reduce controversy. Since then, ten other states have come forward with civil union legislation, although Vermont is one of only four that still uphold it today. Couples with civil unions don’t receive all the benefits that married people do, since DOMA denies them any recognition on the federal level.

In 2003, Massachusetts became the first state to legalize gay marriage, using the logic presented previously in Hawaii that the state had no compelling interest in preventing it. The Massachusetts Supreme Court informed the state that it could either convert all civil marriages to civil unions, or allow same-sex couples to participate in the marriage process. Since then, Massachusetts has repeatedly fended off attempts to put a measure on the ballot banning same-sex marriages. Connecticut also ruled in favor of equal marriage rights in 2008, “upgrading” from the civil unions they’d enacted three years ago.

The 2008 Election

Thirty states have enacted Constitutional amendments banning same-sex marriage. Normally this issue would be covered under normal law, not in the state Constitution, but the amendment strategy came into favor because it is much harder for the courts to overturn them. Several states had already approved gay marriage, but were forced to give it up because of these bans. Some of them even include wording prohibiting the recognition of relationships similar to marriage, removing even the limited legal protections given through civil unions or domestic partnerships.

In the face of such scattered, inconsistent laws, transgender people live with even more uncertainty regarding their marriage rights, since each state defines for itself what makes a person a man or a woman in a legal sense. A court case in Texas ruled that a transgender woman cannot marry a cisgender man, which would seem to imply that she could marry another woman, but the situation is still unclear. In some states, the answer is different depending on whether the marriage came before the gender transition or vice versa. Legalizing same-sex marriage would erase this unnecessary complication.

In 2008, much of the debate focused on California. The state ruled in favor of same-sex marriage in May, but put the question up for a vote at the same time as the Presidential election. Proposition 8, the ballot item that sought to eliminate the right of gay couples to marry in the state, passed. The spouses who had so recently married are still waiting to learn whether their existing unions will be ruled invalid.

Such a disheartening defeat in a state normally viewed as gay-friendly shook many complacent LGBT people and allies into action. The community reaction to Proposition 8 was so strong that it was nicknamed “Stonewall 2.0”. Online grassroots organizing led to a national protest 10,000 to 12,000 strong at San Francisco's City Hall, with sympathizers in other states protesting at their own capitols. There is a chance that the marriage ban will be nullified in the courts; some lawmakers believe it is invalid and unconstitutional. The main arguments are that it violates California’s Equal Protection Clause, which enforces equal rights for minority groups, and that it creates a fundamental change in the Constitution (a revision, rather than an amendment), which can't be passed with a simple majority vote.

Florida also passed a Constitutional amendment against gay marriage during the elections. It is especially dismaying because it prohibits same-sex couples from creating civil unions or any other contract similar to marriage. Arkansas passed a law prohibiting unmarried couples from adopting or fostering children, involving a campaign that made it clear that LGBT families were the main targets.

Moving Forward

Arizona was the third and final state to enact a gay marriage ban during this election season, despite ethical controversy before the actual vote. A senator attempting to push the amendment through the legal process faced an ethics complaint when he switched off the microphones of two of his opponents while they were speaking. While no one denied that he intentionally stifled his rivals’ speech, the ethics committee still dismissed the complaint, voting along party lines—the three Republicans voted to dismiss and the two Democrats voted to uphold it. His interference may have contributed to the ban finally going onto the ballot.

Since the first court ruling in 1973, less than a dozen states have given some form of recognition to gay marriages, while over thirty states have passed bans. LGBT citizens have had to fight an uphill battle in the quest to get legally married. However, the very existence of these high-profile controversies shows that times are changing in a good way. The first step in getting something is to ask for it, and the work of the past few decades has lent a great deal of respect and weight to the request. With a new year, a new administration in the White House and a surge of energy remaining from the 2008 protests, this is a crucial time for supporters of gay marriage. President Obama has stated his desire to repeal DOMA, which would open the door to much-needed federal benefits such as joint adoption and hospital visitation. If we stay involved and organized, the next few years could bring many positive changes to the lives of America's gay, lesbian, bisexual and transgender couples.

During this election cycle, Massachusetts repealed its law prohibiting non-residents from marrying there if the marriage would be illegal in their home state.