|
|
|
Same-Sex Marriage – Q&A Fred Barbash, washingtonpost.com from the Web, March 10, 2004 What started the current controversy over same-sex marriage? Some trace the beginnings of the current controversy to a decision by the Hawaii Supreme Court in 1993 stating that denial of marriage licenses to same-sex couples violated the state constitution. State legislatures across the country, including Hawaii's, responded by enacting laws or constitutional provisions outlawing same-sex marriages. In November 2003, the Massachusetts Supreme Judicial Court said officials could not deny marriage licenses to same-sex couples because it violated the Massachusetts constitution. The court said that marriage confers many benefits besides a license. For example, it controls awards of property in divorce or in death. It influences the custody of children. It influences the legal right of a spouse to help make health decisions about a partner. The court said that the state could not deny these benefits on the basis of gender. Finally, in the past two months, San Francisco Mayor Gavin Newsom and mayors in a few other smaller towns began allowing same-sex marriages. Litigation challenging the legality of the California marriages is pending. How did the federal government get involved? After the Hawaii court ruling, Congress passed the Federal Defense of Marriage Act in 1996. The act, which was signed into law by President Bill Clinton, says that no state shall be required to recognize a relationship between people of the same sex "that is treated as a marriage under the laws" of any other state. It also said that for purposes of all federal law, "the word marriage means only a legal union between one man and one woman as husband and wife. . . . " Isn't marriage traditionally a matter for the states and if so, why did Congress pass the Defense of Marriage Act? Historically, matters of family law are handled by the states. But Article IV, Section 1 of the U.S. Constitution called the "Full Faith and Credit Clause" requires each state to recognize the laws of other states. For example, a legal divorce granted in one state must be recognized by all the other states. The contracts clause of the constitution requires each state to honor the contracts of others states. The sponsors of the Defense of Marriage Act worried that the clause might mean that a gay marriage licensed under the laws of a single state would have to be recognized as legal everywhere. So they created an exception to the clause for same-sex marriage. The sponsors also intended to block applying federal benefits for married couples to same-sex couples. How many states have laws banning same-sex marriage? Thirty five states have their own "Defense of Marriage Acts" (DOMA) defining marriage as between a man and a woman. For a list, see the Web site of the National Conference of State Legislatures. Four states -- Hawaii, Alaska, Nevada and Nebraska -- have passed state constitutional amendments defining marriage as between a man and a woman. These are called "Super DOMA" states. What is a "civil union" law? Civil union laws stop short of allowing marriage but grant individuals many of the legal benefits of marriage. How many states have civil union laws? Vermont and California have civil union laws or "domestic partnership" laws. Many other states have more limited laws providing some of the benefits of marriage. For a list, see the National Conference of State Legislatures Web site. Do some foreign countries permit same sex marriages? Would those marriages be recognized in the United States? The Netherlands, Belgium and two provinces of Canada, Ontario and British Columbia, allow same sex marriages. States allowing gay marriages might recognize them but under the Federal Defense of Marriage Act, the United States does not recognize them for immigration purposes. What has President Bush proposed? Bush has endorsed the idea of a constitutional amendment declaring that marriage is between a man and a woman only. While some members of Congress have proposed constitutional amendments, the president has not endorsed specific wording. Bush argues that marriage is an institution of fundamental significance in the United States and that "activist judges" should not be permitted to overwhelm "the voice of the people" on this subject. What does Sen. John F. Kerry (D-Mass.) say about a constitutional amendment? The presumptive Democratic nominee has said he opposes gay marriage. Kerry opposes a U.S. constitutional amendment on gay marriage, but has said he would support a state constitutional amendment banning gay marriage in Massachusetts, his home state, as long as the amendment also allowed civil unions. At a fundraiser in San Francisco in late February, Kerry said he supports granting gay couples the same federal benefits married heterosexuals enjoy, such as the right to file joint income taxes and collect survivor benefits, if they unite legally in civil unions, domestic partnerships and marriage, according to supporters who attended the event. What difference would a constitutional amendment make? An amendment to the U.S. Constitution, depending on its wording, could be invoked to override state laws permitting same-sex marriages. The laws and Constitution of the United States can preempt state laws. Would it trump civil union laws? That would depend on the wording of an amendment and interpretations of the wording. Is the Supreme Court bound by constitutional amendments? Yes. But the court does interpret the meaning of amendments. Are the states bound by constitutional amendments? Yes. States must obey the Constitution. They are free to grant rights not barred by the U.S. Constitution, however, which is why the Massachusetts high court could declare a right to same-sex marriage under the state constitution. What will it take to amend the Constitution? Would it make any legal difference to the amending process if there is a new president? Under Article V of the constitution, both houses of congress must approve a constitutional amendment by 2/3 votes. Then 3/4 of the states must approve the amendment. The president has no formal role in the process. No presidential signature is required. (A constitutional amendment may also be proposed by a constitutional convention.) What would the status of the law be in the event there is no amendment to the U.S. Constitution? States would remain free to enact their marriage laws and amend their state constitutions and state courts would be free to interpret them. Under the Federal Defense of Marriage Act, however, no state would have to recognize a same-sex marriage performed under the laws of another state, unless the federal courts ruled otherwise. Could the U.S. Supreme Court strike down the Defense of Marriage Act? Yes. The Supreme Court can strike down acts of Congress. State courts may not strike down acts of Congress. Has the U.S. Supreme Court ever ruled on this subject? No. But in 1967, the court struck down laws banning marriage between people of different races and in a 2003 decision called Lawrence v. Texas, the justices struck down state laws banning sodomy, saying that sex between consenting adults was their business. The majority opinion noted that the law in question, unlike marriage laws, did not involve some "formal recognition" of any kind of sex or any kind of recognition by the state. In a dissent, Justice Antonin Scalia wrote that the ruling might be applied to strike down laws banning same-sex marriage. In a concurrence, Justice Sandra Day O'Connor said the decision could not be applied that way. |
Send mail to
email@gaypasg.org with questions or comments about this web site.
|