By Bob Roehr
This was the year of marriage rights – again. And the subject is likely to cop top honors for several more years to come before the final chapter is written. But in some senses they may all seem a tad anticlimactic when compared with 2004.
The stage had been set by the Massachusetts supreme court with the dramatic decision in November 2003: “The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens … The Commonwealth has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.”
However, the court gave the legislature six months in which to take action before its order took effect. Legislators asked the court if they might create civil unions instead. Early in 2003, the court said no; “Without the right to choose who to marry, same-sex couples are not only denied full protection of the laws, but are ‘excluded from the full range of human experience.'”
Social conservatives preached gloom and doom, demanding that the legislators send a constitutional amendment to the people to let them decide the issue. The politicians obliged, setting a date for a constitutional session. Pro-gay forces mustered their own social and political capital for the fight.
The first session deadlocked over competing versions of an amendment and adjourned after three days of debate in early February.
That drama was upstaged on Feb. 12 with the peal of wedding bells from San Francisco. Shortly before noon, lesbian icons Del Martin, 83, and Phyllis Lyon, 79, became the first same-sex couple granted a marriage license in city hall. Their celebratory photo was splashed across the front page of the San Francisco Chronicle and papers in many other cities.
Newly elected mayor Gavin Newsom, movie star handsome and heterosexual, had hatched a plan to use California’s gender-neutral marriage laws and an interpretation from the city’s lawyers that refusing to issue marriage licenses to same sex couple was unconstitutional under the state charter.
And the floodgates opened. Gay and lesbian couples, many with kids in tow, rushed to city hall to get married. Hundreds stood in line in the rain over the weekend to get their licenses. Many of them had been together for decades.
Other local officials in various corners of the country dared to join the fray for marriage equality: Sandoval County, New Mexico; New Paltz, New York, and Portland, Oregon were among the most prominent.
“Something is happening out there. Instead of begging for the basic right to marry, gay couples are now demanding it,” wrote gay conservative Andrew Sullivan on his blog. “This will alter the debate … and when the religious right try to strip us of those marriages, and force us back into second-class status, then we will see something else: resistance.”
The country was shocked. And then, as the joyous scenes were replayed again and again in the media, the shock abated and many Americans began to understand that gay and lesbian couples really weren’t all that different. All they wanted was the same thing as everyone else, to marry their partner and take on the full load of benefits and responsibilities that marriage entails.
The flurry of marriages didn’t last long. Political pressure and lawsuits filed by social conservatives brought injunctions from the courts against further marriages in one jurisdiction and then another. And the door to marriage slammed shut. The tedious legal wrangling continues to play out in a handful of states and will continue to do so for a year or more. Many of the same-sex marriages performed during that brief period remain in legal limbo.
The Massachusetts legislature met again as a constitutional convention at the end of March. It wasted little time in adopting a compromise amendment that would define marriage as only between a man and a woman. The amendment also would create civil unions for same-sex couples, turning back attempts by conservatives to divide the two issues on the ballot.
Civil unions, a notion that only a few years earlier had seemed so radical when first proposed in Vermont, had now become the compromise position in the battle for gay equality.
The final vote on the Massachusetts amendment was 105-92, barely more than the 101 votes needed for passage. It requires a second vote of the legislature meeting as a convention before it can be sent to the voters in November 2006.
But that did not stop the order of the court from going into effect; on May 17 hundreds of gay and lesbian couples began to march down the aisles to pledge their troth each to the other.
The Federal Marriage Amendment, to prohibit gays from marrying, had languished in Congress. It got a huge boost when President George W. Bush held a Feb. 24 White House press briefing to endorse the concept of the FMA without committing himself to the language of a specific amendment.
He blamed “activist judges and local officials [who] have made an aggressive attempt to redefine marriage,” citing recent developments in Massachusetts and San Francisco. “Decisive and democratic action is needed because attempts to redefine marriage in a single state or city could have serious consequences throughout the country.”
“Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society,” Bush asserted. “The voice of the people must be heard.”
“Log Cabin considers support for this amendment a declaration of war on gay and lesbian families and an attack on our sacred Constitution,” said Patrick Guerriero, executive director of Log Cabin Republicans. It would be an important factor later that year in that group’s decision not to endorse Bush’s reelection.
The House and the Senate each held numerous hearings on issues surrounding gay marriage. Republican control of the process gave the religious right ample opportunity to voice their parade of horribles against gays. The initial hearings brought much press coverage but by the end, few people seemed to care.
The Senate took up the FMA in July. Conservative supporters acknowledged that they did not have the two-thirds majority required to pass a constitutional amendment but they hoped to get a solid majority to build on.
They failed miserably. Not only could they not muster the 60 votes necessary on a procedural measure to close off debate, they could not get a simple majority. On July 14, the measure failed 48 to 50. Several Senators who voted yes on procedural vote indicated that they would have voted against the substance of amendment.
Democratic presidential candidate John Kerry and running mate John Edwards were the only two Senators who did not vote on the amendment. Kerry continued to waffle on the issue throughout the campaign, affirming his support of traditional marriage as between a man and a woman; opposing the FMA as unnecessary; and supporting the antigay amendment to the Massachusetts Constitution.
The House went through the motions on a marriage measure on Sept. 30. And while a majority voted for it, the 227 to 186 vote was well short of the required two-thirds margin for constitutional amendments.
Antigay marriage amendments to state constitutions were on the ballot in 13 states beginning in the summer and continuing into November. LGBT leaders had hoped to create a psychological and political firewall by stopping at least one of them. They pinned most of their hopes on Oregon. But they failed in each case.
The silver lining was again in Massachusetts. A combination of no electoral backlash for their allies, key political retirements, and a few upset victories left state leaders optimistic that they would be able to defeat the antigay marriage amendment when it comes up for a second reading at a constitutional convention in 2005.
The beachhead of marriage equality would be protected while the legal struggle continues in the courts in a handful of states.