The States and the Differing Impetus for Divergent Paths on Same-Sex Marriage, 1990-2001

Barclay, Scott, Fisher, Shauna, Policy Studies Journal

Since July 1, 2000, when the law allowing civil unions went into effect in Vermont, until January 4, 2002, 3,471 civil unions involving parties from 48 U.S. states and several foreign countries were issued by the state of Vermont (Vermont Civil Union Review Commission, 2002). Civil Unions extend to gay and lesbian couples "all the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses in a marriage" (15 V.S.A. [section] 1204(a)). While differing in nomenclature--and subsequently in social status--from marriage, civil unions represent the most comprehensive effort by a U.S. state to date to incorporate committed same-sex romantic relationships into an institution that parallels heterosexual marriage. Thus, it is the closest legal representation to same-sex marriage.

The fact that Vermont considered same-sex marriage at this time was neither original nor unusual. Between 1990 and 2001, state courts in Hawaii, Alaska, and Vermont introduced the possibility of judicially ordering their respective state to sanction same-sex marriage,(1) and Nebraska, Minnesota, Illinois, Hawaii, and Rhode Island all introduced bills before the legislature in support of same-sex marriage. (2) Simultaneously, 6 states held referendums or initiatives, and 29 separate states passed laws precluding same-sex marriage from being performed within their respective states.

To date, research on the politics surrounding sexual-orientation issues has focused predominantly on antidiscrimination policies at the local, state, and national levels. Based on the findings in regards to antidiscrimination policies, it has previously been argued (e.g., Haider-Markel & Meier, 1996, Wald, Button, & Rienzo, 1996) that states and localities are more likely to be supportive of lesbian and gay rights when there is high urban density, greater racial diversity, partisan alignment towards the Democrats, and reduced Christian religious activity. Yet as the Vermont case demonstrates, such findings in relation to antidiscrimination policies may not effectively capture the factors that generate and influence state laws in relation to same-sex marriage. Vermont lacks the urban density, racial diversity, partisan alignment, and religious configuration that have been previously correlated with the increased likelihood of a state or locality supporting gay and lesbian rights through policies and statutes.

Notwithstanding Vermont's introduction of civil unions, the vast majority of state legislation on same-sex marriage during this period actually involved proscribing such activity. Therefore, in this article, we focus on the impetus for the enactment of state laws that bar the celebration of marriages involving lesbian and gay couples. Using a regression model of pooled time series data from the 50 states in the period 1990 to 2001, we consider the validity of existing political, demographic, and social movement factors that have been previously associated with the introduction of laws concerning sexual orientation at the state and local level. In addition, we introduce new factors that might apply uniquely to explaining legislative hostility to same-sex marriage.

The Difference that Marriage Makes

While much of the existing empirical research has focused on the factors that provide the impetus for introducing (or precluding) antidiscrimination policies in various localities and states (e.g., Haider-Markel & Meier, 1996, Wald et al., 1996), there are two reasons to believe that the same factors may not be key to understanding the impetus for the proscription of same-sex marriages. First, same-sex marriage policies are potentially more prone to invoke a morality-based response than are antidiscrimination laws involving sexual orientation. Antidiscrimination laws are based on an extension of the logic of the civil rights movement (Wald et al., 1996). Such laws introduce sexual orientation into the category of existing social characteristics, such as race and gender, which are legally restricted from invidious discrimination in the allocation of employment, public accommodation, and housing, as well as access to governmental benefits and financial institutions. These laws recognize that homosexuality has been historically utilized as a basis for unequal political and legal treatment of individuals and attempt to preclude the continued enforcement of such discriminatory practices.

In contrast, same-sex marriage laws require positive action by a state to (a) publicly sanction the committed, romantic, and sexual relationships of gay and lesbian couples, and (b) offer to those couples the same benefits, obligations, and social status accorded to their heterosexual counterparts. Such activity requires each state to engage in redefining the parameters of romantic and sexual relationships. Historically, religious institutions have defined these relationships (Herman, 1997). This raises the possibility that a greater percentage of each state's population will make hostile judgments concerning same-sex marriage based on existing religious proscriptions.

Second, the stakes for state recognition and endorsement of same-sex marriage are considered greater, both by supporters and opponents, than in the area of antidiscrimination laws. In this way, it is more of a lightning-rod issue. Eskridge (2002, p. 2) has argued that marriage is "the ultimate goal, the crowning achievement" for gay and lesbian groups. State recognition of same-sex marriage accords equality with heterosexual couples in the area of romantic relationships of same-sex couples. Such equality includes both the legal obligations and rights currently associated solely with heterosexual marriage in most states, (3) but it also includes the social status that accompanies such legal rights.

Unlike antidiscrimination laws that are restricted to particular acts and are triggered by selected contexts related directly to the sexual orientation of the party, same-sex marriage offers gay and lesbian couples access to a comprehensive package of legal rights and predefined social status related only to their romantic relationship and independent of their sexual orientation. For this reason, same-sex marriage has consistently been a fundamental demand of lesbian and gay rights' groups since the late 1960s (see Eskridge, 1996, pp. 73-74; Eskridge, 2002, pp. 6-7), and same-sex marriage legal claims have a history that extends back to 1971. As early as 1972, "when the National Coalition of Gay Organizations drew up a list of demands for law reform, it included a key item" (Eskridge, 2002, p. 5)--same-sex marriage. A similar definition of the impact of same-sex marriage has made it a particularly targeted area for groups opposed to all forms of public recognition of homosexuality. For example, Green (2000, pp. 128-129) notes these latter groups have successfully used their opposition to the possibility of positive sexual-orientation laws, such as same-sex marriage, as one of the primary means through which to define their organizations as well as recruit new members.

The more visceral public and interest group reaction to same-sex marriage highlights the possibility that different and potentially additional factors may be found in the consideration of the impetus for policies in this area than to antidiscrimination laws. Such differences may alter the dominant factors that have traditionally been found to influence the likelihood of jurisdictions introducing sexual-orientation laws by bringing to the front new factors previously not identified as dominant in shaping such laws.

A Short Note on States, Laws, and Same-Sex Marriage

It is important to recognize for our purposes that states have several institutional means through which to express a policy regarding same-sex marriage. Our consideration in this article will be on the creation of promulgated laws or published court opinions that are recognized as establishing formal state law. In this regard, the law or court decision must apply throughout the whole state and definitively articulate the sanction of the state in supporting or proscribing same-sex marriage. Using this definition, we consider (a) traditional state laws passed by a legislature and allowed to become law by the action or inaction of the state governor, (b) the decisions of a state court that created binding law in this area, and (c) the legal incorporation of the results of a referendum or initiative.

For our purposes, a formal opinion of the state's highest legal officer, normally the attorney general, will not be treated as equivalent to a law, because it is not immediately legally binding in any of the states under consideration. Similarly, although the policies of the Department of Health (which oversees the criteria for marriage in many states) or the similarly designated bureaucratic agency create the initial governmental hurdle to being issued a marriage license for same-sex couples (along with requisite numeric, cosanguinity, residency, mental competency, and age requirements for all parties seeking marriage), we treat such decisions as only a bureaucratic statement (even if it involves an administrative rule) on this issue until it is formalized by a state court or by legislative action directly on this topic. (4) Our definition also …

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Publication information: Article title: The States and the Differing Impetus for Divergent Paths on Same-Sex Marriage, 1990-2001. Contributors: Barclay, Scott - Author, Fisher, Shauna - Author. Journal title: Policy Studies Journal. Volume: 31. Issue: 3 Publication date: August 2003. Page number: 331+. © 1999 Policy Studies Organization. COPYRIGHT 2003 Gale Group.

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