Same-Sex Marriage in Historical Perspective (May 3, 2005)

Thursday 13 April 2017.
 

Same-Sex Marriage in Historical Perspective (May 3, 2005)

Same-sex marriage in historical perspective: Before the landmark Hawaii 1999 case, beginning in 1971 in Minnesota there have been 8 legal challenges by homosexual couples in the battle for the right to marry. Both homosexual male and female couples have been a part of these legal challenges. The states in which these challenges occurred were in Minnesota 1971, Kentucky 1973, Washington 1974, Colorado 1975, Ohio 1975, Pennsylvania 1984, New York 1990, and Washington D.C. 1995. All of these legal challenges failed.

Not all court cases have been direct legal challenges to marriage being defined as a relationship between one man and one woman. Colorado 1975: was a legal challenge in an immigration case, an Australian man was ruled not the spouse of an American man. Pennsylvania 1984: after a couple split up, one person sued for divorce, claiming a common-law marriage status. New York 1990: a man died, leaving the bulk of his property to his ex-lover, his current lover sued to inherit as a surviving spouse."

The first successful legal challenge for same-sex marriage Hawaii (1999) was a nine-year long court case. In 1993 the Hawaii Supreme Court ruled that prohibiting same-sex marriage may violate the Hawaii Constitution’s ban on sex discrimination. The following year, 1994, the Hawaii Legislature amended the state’s marriage law to provide that only marriages between a man and a woman are valid. The same-sex marriage issue in Hawaii was finally decided in 1998 when the Hawaii voters amended the Hawaii State Constitution, which allowed the Hawaii State Legislature to define marriage as a relationship between one man and one woman. Then in 1999 the Hawaii Supreme Court ruled that the 1998 amendment ratified by the voters of Hawaii rendered the plaintiff’s argument moot, with the result that same-sex marriage remains illegal in Hawaii.

Another successful legal challenge was in Alaska (1998) when a trial court ruled that choosing a martial partner is a fundamental right. That same year in November of 1998 the citizens of Alaska voted to amend the Alaska Constitution requiring that all marriages be between a man and a woman. A third successful challenge was in Vermont (1999), although it did not result in same-sex marriage. In 1999 the Vermont Supreme Court ruled that same-sex couples are entitled, under the Vermont Constitution, to all of the protections and benefits provided through marriage. The Court ducked the issue of whether same-sex couples are entitled to a marriage license, instead focusing on equal rights and benefits. The result was the Vermont Legislature past a law that was signed by the Vermont Governor creating civil unions for same-sex couples, giving these couples all the rights and benefits of marriage under Vermont law but not marriage licenses.

Four states, New Jersey, New Mexico, New York, and Rhode Island have no laws or provisions in their Constitutions pertaining to marriage being defined as the relationship between one man and one woman. Thirty-six states have enacted legislation prohibiting same-sex marriages or the recognition of same-sex marriages formed in another jurisdiction. Four states, Maryland, New Hampshire, Wisconsin, and Wyoming have laws or court rulings from before 1996 that prohibit same-sex marriage. States have traditionally recognized marriages solemnized in other states, even those that go against the marriage laws of that particular state. Under the full faith and credit clause of the U.S. Constitution, states are generally required to recognize and honor the public laws of other states, unless those laws are contrary to a strong public policy of that state. But in 1996, Congress enacted the Defense of Marriage Act, signed by President Clinton that bars federal recognition of same-sex marriages and allows states to do the same.

Those advocating for same-sex marriage say that civil unions for same-sex couples results in a second-class status for these couples. Whatever action a state will take, whether by marriage or civil unions for same-sex couples, according to federal mandate marriage is defined as a relationship between one man and one woman (Defense of Marriage Act, 1996), thereby for federal recording purposes same-sex couples have second class status. This includes but is not limited to federal tax codes.

Several states that have had enacted laws defining marriage as the relationship between one man and one woman have had to revisited the issue of same-sex marriage following the Supreme Judicial Court of Massachusetts decision allowing same-sex couples to marry. To prevent similar judicial rulings that took place in Massachusetts, states have been amending their constitutions. Since the November 2003 ruling allowing same-sex marriages that began in May 2004, Louisiana was the first state. In a September 2004 election, a Constitutional amendment was approved by 78% of Louisiana voters defining marriage as a relationship between one man and one woman. Eleven states had amendments on their ballots for the November 2004 elections, defining marriage as a relationship between one man and one woman. The voters in all 11 states approved all 11 amendments. The states were Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Oklahoma, Ohio, Oregon, and Utah. The closest margin for passage of an amendment was approved by 57% of the voters in Oregon and the largest margin was by 86% of the voters in Mississippi. In an April 2005 election a Constitutional amendment was approved by 70% of the voters in Kansas. Three states will allow voters in 2006 elections to vote on Constitutional amendments defining marriage as a relationship between one man and one woman. Alabama will hold an election in June of 2006, South Dakota and Tennessee citizens will vote during 2006 elections.

Connecticut is the latest state to resolve the issue of defining marriage. In April 2005 the Connecticut legislature pass a law that was signed by the Connecticut Governor. The law allows for civil unions for same-sex couples and defines marriage as a relationship between a man and a woman. Connecticut was the first state to resolve the issue of defining marriage without a legal challenge.

Beginning in 1971 the first legal challenge by a homosexual couple seeking the right to marry was filed in Minnesota by a male homosexual couple. The courts have ruled both in favor of and also for denying homosexual couples the right to marry. Two states, Vermont and Connecticut allow for civil unions for homosexual couples. Massachusetts is the only state by judicial decree to allow homosexual couples to marry. With every opportunity to participate in the governing process, when citizens have been allowed to vote, usually by amending state Constitutions, on the issue of the definition of marriage, in the court of public opinion they have voted in favor of marriage being defined as the relationship between one man and one woman.


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