The Massachusetts Supreme Judicial Court ruled in November that it is unconstitutional to bar same-sex couples from marrying, touching off a political maelstrom across the country. The mayor of San Francisco started performing same-sex marriages in February. A county clerk in New Mexico began issuing marriage licenses to same-sex couples one week later. The city of San Francisco is now suing the state, challenging the constitutionality of the California statute that prohibits recognition of marriage between same-sex couples.
Nationwide, legislatures have introduced dozens of proposals this session that run the gamut from defending marriage as a union between a man and a woman to creating civil unions to allowing gay couples to marry.
"This is a difficult issue for the country, and it is a difficult issue for state legislatures. We are doing the best we can," said Massachusetts Speaker Thomas Finneran, as his deeply divided legislature struggled with the issue.
The Massachusetts legislature has held two constitutional conventions in an attempt to find some resolution to this issue, but the conventions were not able to agree on any amendments. If lawmakers decide to amend the constitution, the proposal must be approved in two successive legislative sessions and then referred to the voters. The earliest any proposed amendment could make the ballot would be November 2006. By court decree, the first legally sanctioned same-sex weddings could take place in Massachusetts as early as May this year.
These are the latest developments in the larger public discussion of "marriage" and "family" that started in 1993 when the Hawaii Supreme Court ruled that laws denying same-sex couples the right to marry violated state constitutional equal protection rights unless the state could show a "compelling reason" for such discrimination. In 1996, a trial court ruled that the state had no such compelling reason, and the case headed back to the supreme court. Voters adopted a constitutional amendment in 1998, before the final ruling was issued, giving the Legislature the power to reserve marriage to opposite-sex couples and effectively ending the lawsuit.
Congress passed and President Clinton signed the Defense of Marriage Act (DOMA) in 1996, defining marriage as "a legal union between one man and one woman as husband and wife" for the purpose of federal law and benefits. The act also clarified that states are not required to recognize same-sex marriages from any other jurisdiction.
The Hawaii debate, similar cases in Alaska and Vermont, and passage of the federal act have spurred state action. Before 1996, only three states had language on the books defining marriage as between a man and a woman. Now 42 have such statutes.
Four of those states have added language defining marriage to their constitutions. This session, 16 states are considering legislation to enact of clarify defense of marriage statutes, and 18 have proposed constitutional amendments. Eight states have introduced bills that would legalize same-sex marriages of civil unions, and one would add registered domestic partners to the list of people who are allowed to make health care decisions. California, New Jersey and Vermont are currently the only states with laws establishing statewide domestic partnerships of civil unions.
Defense of marriage legislation proponents see these measures as protection for traditional marriage. They are concerned that judges may not respect long-standing state definitions of marriage. They contend that same-sex marriage subverts the belief that our society is based on marriage between …