Academic journal article Columbia Journal of Gender and Law

Foreword: The Next Normal-Developments since Marriage Rights for Same-Sex Couples in New York

Academic journal article Columbia Journal of Gender and Law

Foreword: The Next Normal-Developments since Marriage Rights for Same-Sex Couples in New York

Article excerpt

I. INTRODUCTION

The Association of the Bar of the City of New York issued its Report on Marriage Rights for Same-Sex Couples in New York (2000, (1) calling for the recognition of same-sex marriages, not long after Vermont enacted legislation giving same-sex couples the right to enter into civil unions. The Report comprehensively treated state and federal constitutional and statutory issues surrounding the recognition of same-sex marriage in New York, and served as a template for similar efforts elsewhere. In connection with the Columbia Journal of Gender and Law's publication of the Report, an update seemed appropriate because the ground has shifted in New York and in American society. The 2000 United States Census revealed 594,000 same-sex couples nationwide, with 46,490 in New York alone (2)--figures that may undercount the true number of couples by as much as 62 percent. (3) Reflecting a gay baby boom accelerating over the past decade, 34.3 percent of female same-sex households and 22.3 percent of male households have children nationwide (the figures for New York are 34.3 percent and 21.7 percent, respectively). These rates are not that much below the national rate for married opposite-sex couples of 45.6 percent and of unmarried opposite-sex couples of 43.1 percent. (4) Using reasonable estimates, this would suggest around 400,000 children being raised by same-sex couples nationwide, and 31,000 in New York. (5) It is increasingly clear that same-sex couples are here to stay as a significant factor in American life--1 percent of all coupled households in the United States, and 1.3 percent in New York. (6)

There are facts on the ground elsewhere. Canada, (7) Belgium, (8) and Zurich (9) have now joined the Netherlands (10) in legalizing same-sex marriage, and in Goodridge v. Department of Public Health, the Massachusetts Supreme Judicial Court required the enactment of same-sex marriage legislation. (11) The European Union's Parliament has required member states to grant same-sex marriage and domestic partnership rights, and Germany has adopted domestic partnership legislation. (12) The governments of Taiwan and the United Kingdom are also introducing legislation to recognize same-sex couples. (13) In California, even before the recent expansion of domestic partnership into a near-equivalent to marriage, there were approximately 21,000 same-sex and opposite-sex registered domestic partnerships, (14) and New Jersey, too, has instituted domestic partnership. (15) In the first six months after legalization of marriage, nearly 2,000 same-sex couples were wed in the Netherlands, and 1,500 same-sex couples in Canada. (16) Nearly 5,700 same-sex couples had entered into Vermont civil unions as of June 29, 2003. (17) Canada and Vermont are becoming magnets for same-sex couples from other jurisdictions seeking recognition of their partnerships: 15 percent of the 362 same-sex marriage licenses issued in the five weeks after Canada legalized same-sex marriage were issued to United States couples, and a whopping 85 percent of those who had obtained a Vermont civil union license in the first three years were out-of-staters. (18)

The United States Supreme Court's recent decision in Lawrence v. Texas, holding Texas's gay sodomy law unconstitutional, (19) led to instant speculation on the potential constitutional implications for marriage. Lawrence and Goodridge energized conservative organizations to press for a United States constitutional amendment to ban same-sex marriage, (20) and one poll showed that 50 percent of Americans supported such an amendment in August 2003. (21) An October 2003 Pew Research Center poll found that only 32 percent of Americans favored gay marriage, while 59 percent opposed it. (22) Still, in much of American society, gay relationships are being normalized. A September 2003 USA Today/CNN/Gallup poll showed that 50 percent of Americans said that allowing gay marriage would either improve society or have no effect, with the percentage rising to 67 percent for those from eighteen to twenty-nine years old. …

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