By Lisa Keen
There was a triple-whammy loss for same-sex marriage during the past week. The highest state courts in New York, Georgia and Massachusetts issued rulings that marked significant setbacks for efforts to secure equal rights in marriage for same-sex couples.
While some mainstream media speculated that the losses might trim the sails of activists seeking equal rights for gays, the mantra for the movement this week sounded much more like “full speed ahead.”
First, on July 6, the New York Court of Appeals ruled that nothing in that state’s constitution requires equal treatment of same-sex couples when it comes to marriage licensing and that there were rational reasons to give special “inducement” for heterosexuals to marry, while withholding those options from same-sex couples. That ruling consolidated four pro-active cases in the state that have not approved any statutory or constitutional bans on same-sex relationships or marriages.
Then, that same day, the Georgia Supreme Court overturned a lower court judge’s ruling that found a voter-approved constitutional amendment banning marriage and other legal relationships for same-sex couples violated a state law that prohibits multiple-issue questions on the ballot. The state Supreme Court’s ruling in that case, Perdue v. O’Kelley, reinstates Georgia’s constitutional ban.
On Monday, July 10, the Massachusetts Supreme Judicial Court ruled that a proposed 2008 ballot measure seeking a state constitutional ban on marriages and other relationships for same-sex couples does not constitute an effort to reverse its 2003 decision that the constitution requires equal rights in marriage for same-sex couples. The Massachusetts case, Schulman v. Reilly, means one less hurdle for the ballot measure. But as this paper was going to press this week, a major political battle over the ballot measure was raging in the state legislature. There, the ballot initiative needs 50 votes this year and next before it will be placed on the November 2008 ballot. The legislature’s first showdown was expected Wednesday.
The setbacks prompted articles and commentaries in many mainstream media, contemplating how much more difficult the challenge is now for the gay civil rights movement to advance equal rights for same-sex couples in marriage and other forms of relationships, such as civil unions. Unlike gay legal activists, New York Times reporter Patrick Healy said “Nowhere did gay marriage seem like a natural fit more than in New York” and suggested activists might have to “turn toward more modest goals like supporting civil unions and domestic-partner benefits.”
In fact, the outcome of the New York case seemed 50-50 at best, with the six justices hearing the case (a seventh had recused himself) being split down the political spectrum -three appointed by Democrat Mario Cuomo and three by Republican George Pataki. Following oral arguments May 31, when one of the Cuomo appointees fired a constant barrage of hostile questions at plaintiffs in the case, there seemed little support for the notion that the New York court was a “natural fit” to issue a pro-same-sex marriage decision.
As for turning to “more modest goals,” there seems little likelihood of that.
“I’m not hearing any talk like that,” said David Buckel, marriage project director for Lambda Legal Defense and Education Fund. Lambda, along with the ACLU and some private attorneys, pressed the four cases seeking equal marriage rights in New York. “Inside New York,” said Buckel, “I’m hearing a roar to go to the state legislature and demand marriage equality. And nationally I hear the same thing….There’s no talk of retreat.”
“As terrible as the [New York] decision was, in some ways, it has moved people further along,” said Evan Wolfson, head of the national Freedom to Marry group and one of the leading attorneys working for equal marriage rights.
“Am I upset about it? Yes. I am upset, frustrated, angry and shocked at the shoddiness of the opinion,” said Wolfson. “But in some ways, that’s the silver lining. The opinion is so unpersuasive and such a throw back…it’s unlikely to be an impediment to any court ready to apply a more serious level of scrutiny.”
Interestingly, the 4 to 2 majority in the New York court ruling said that “if we were convinced that the [same-sex marriage ban was] founded on nothing but prejudice … we would hold it invalid, no matter how long its history.” But the court said that the plaintiffs had “not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals.”
The court did not state definitively what it thinks the restriction is based on, but offered this speculation:
“Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite sex relationships will help more children.”
The court rejected the 44 same-sex couples’ claims that the ban violates their state constitutional rights to equal protection and due process and told them that any granting of equal marriage rights for same-sex couples would have to come from the state legislature, not the court.
The first-ever state supreme court ruling concerning same-sex marriage came in 1971 when the Minnesota Supreme Court ruled that the state could deny a marriage license to a same-sex couple. That lawsuit, Baker v. Nelson, was dismissed by the U.S. Supreme Court with no explanation beyond “want of a substantial federal question.” In what might also be considered a piece of the silver lining in the ruling, the majority rejected the notion that the Baker dismissal required it to reject plaintiffs’ case out of hand.
In December 1999, the Vermont Supreme Court ruled that a “common benefits” clause in the state constitution required the state extend to same-sex couples the same benefits and protections it extends to heterosexual couples. However, the Vermont high court, too, said it was up to the legislature to decide whether these same benefits and protections had to be delivered through “marriage” or through “some equivalent statutory alternative.” The legislature chose the latter, calling them “civil unions,” and the state began issuing them beginning in 2000.
The Massachusetts Supreme Judicial Court was the first state supreme court whose ruling led to the issuance of marriage licenses to same-sex couples. In November 2003, a 4-3 majority ruled that the Massachusetts constitution’s guarantee of equality under the law means the state must treat same-sex couples the same as heterosexual couples in the issuance of marriage licenses. In May 2004, the state became the first to issue marriage licenses to same-sex couples with the state’s official imprimatur.
Although the Hawaii Supreme Court was presented with a same-sex marriage case in 1999, it declined to rule on the matter, noting that the state legislature had taken the preemptive step of amending the state constitution to take the marriage statute out of the purview of the constitution’s equal protection clause.