Same-Sex Marriage

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November 26, 1996 Lisa Small is a feminist attorney (a "webliography" of related sites and a bibliography of related books can be found at the end).

EvaS: Once again, we're privileged to have Lisa Small, a public interest attorney, as our guest this evening. The topic is same-sex marriage. Welcome, Lisa! :D

LisaSmall: Thank you, Eva.

Xine W: {applause as Lisa takes the podium}


EvaS: Lisa, plunging right in, ...what is the Hawaii case about?

LisaSmall: The Hawaii case is the reason that SS-marriage is so much on the mainstream agenda today. First making it into the mainstream press earlier this year, the Hawaiian case involves several same-sex couples who wish to solemnize their unions as heterosexual couples do, and obtain the benefits of legal marriage. [There are three couples: Genora Dancel and Nina Baehr, another lesbian couple, and a gay male couple. The case is called BAEHR v. LEWIN. It began when the couples were denied marriage licenses in 1991]. They are relying not upon the U.S. Constitution, but upon the STATE constitution of Hawaii. The state constitution has a specific prohibition against gender discrimination, and the couples are arguing that to forbid them to marry a person simply because of that person's gender is gender discrimination.

The reason this is causing a nationwide uproar is that, under the "Full Faith and Credit" clause of the U.S. Constitution, every state must honor the acts of other states. So, for example, a marriage between cousins made in Virginia, where it is legal to marry your cousin, must be honored even in states where such marriages are not legal. If Hawaii's Supreme Court effectively legalizes gay marriage there, proponents of single-sex marriage argue that such marriages must be respected in every state.

Kiladis: Same sex marriages are wrong and gross.

Tennsrobin: Kiladis, you are so wrong.

Kiladis: Males and females make babies, that's why.

Tennsrobin: My fear and what appears to be happening is that the states are defining marriage as male and female. I'm adopting. Ok!

Xine W: I know that in the past some states prohibited marriage between blacks and whites. Was the full faith and credit clause ever applied then to make Virginia, for example, recognize a marriage performed in Massachusetts? Any precedent for this?

LisaSmall: The case which finally de-criminalized mixed-race marriage in Virginia is known, serendipitously, as LOVING v. VIRGINIA. It was 1967 before such marriages were de-criminalized here (I live in Virginia). I don't know to what extent states considered themselves bound then by full-faith-and-credit. I confess I haven't researched that issue, and all I can think of is anecdotal fictional evidence off the top of my head -- that Mississippi Valley states would NOT grant credit to such marriages and would, in fact, prosecute the couple for miscegenation (race-mixing) or prostitution. I don't even know if the full-faith argument was ever made in those cases, since the racial issue was so inflammatory. I'll have to look that up for next time, since it is certainly relevant precedent.

Kiladis: Virginia sounds like it would be like that.

VeIvetWind: Many states are adopting anti-same-sex marriage amendments now. Will they be legal, then, given the full-faith argument?

LisaSmall: Thanks for that question, Velvet! No, in my opinion, they absolutely will not be found valid. These state laws passed this summer -- and the 1996 federal law known as Defense of Marriage Act (DOMA) -- all, to my eyes, simply fail to meet any constitutional standard. You cannot amend the Constitution itself by passing a law that says, "The Constitution doesn't count when it comes to this," and that's what those laws are trying to do.

VeIvetWind: So, the US Supreme Court can overturn the states' amendments?

LisaSmall: However, obviously some folks in Congress disagree. Sure, the U.S. Supremes can, and in my opinion will, overturn those state laws IF they take the case at all. We'll be talking a lot more about the Supremes as the presentation continues. I'm still working on my vote count. :)

Monkiewom: Any two people committed to each other with or w/o kids should get benefits -- insurance, etc. Financially, they're screwed if not recognized.

LisaSmall: Yes. Legal recognition for same-sex couples has many vital impacts, some financial and some not. Let me take a minute to run through them for people new to the issue:
1. Insurance benefits for spouses: some private companies and government units already extend insurance benefits to same-sex partners and unmarried opposite-sex partners, but there is no current legal requirement that they do so.
2. Pension benefits for spouses.
3. Access to credit when buying a home together.
4. Purchase of private medical policies together.
5. Couples discounts when buying many other things, like vacations and health club memberships.
6. Automatic inheritance rights [added in editing process -- LisaSmall]

And now some non-financial issues:
a. medical power of attorney in times of crisis
b. burial rights
c. rights in children of the marriage (by adoption or birth), etc.
There are many more, but this is enough to get us started.

FractalMom: Has anyone ever challenged proscriptions based on violation of Church vs. State, in that the definitions are based upon religious beliefs inherent in the intent of the legislature at the time of the drafting of the constitution?

LisaSmall: Ah, what a mess! I love this question. :) No, I think not. The approach appears to have been the Hawaiian style -- sex discrimination -- rather than asserting a First Amendment right to be free of the religious proscriptions of majority faiths, or even alleging a First Amendment associational right -- which is not the same as the religious issue. Sticking to religion for a moment, there have been bitterly-fought marriage cases that went around and around the Christian dogma. There is, as noted, LOVING v. VIRGINIA. Loving, the race-mixing case, came after years of lower court litigation in which courts asserted quite shamelessly that mixed-race marriages were against "God's law." Prior to that, we have REYNOLDS and CLEVELAND, cases regarding Mormon polygyny (usually called polygamy or plural marriage or multiple marriage). THOSE cases went right to the heart of the First Amendment and religious freedom -- yet again, the U.S. Supreme Court of the 1940's very shamelessly quoted mainstream Christian scripture and mainstream Christian dogma to assert that such marriages were contrary to God's law. Well, this is the United States of America, and our supreme law is the Constitution, not any set of scriptures. Yet the Supreme Court, most lower courts, and almost ALL politicians fear to come out and say so. I think the First Amendment argument has not been popular with advocates of same-sex marriage because taking on the religious establishment so directly is such a brutal chore. And it's difficult, too, to assert that the prohibition on same-sex marriage arises SOLELY from religious bias.

[citations added in editing -- LS]
LOVING v. VIRGINIA, 388 U.S. 1 (1967) (decriminalized interracial marriage)
REYNOLDS v. UNITED STATES, 98 U.S. 145 (1879) (First Amendment does not protect religious choice of polygamous marriage against the will of the religious majority)
CLEVELAND v. UNITED STATES, 329 U.S. 14 (1946) (conviction of Mormon man for plural marriage under prostitution statute upheld)

Tennsrobin: What is the time frame in Hawaii - are they close to a decision? We are adopting and really concerned about protecting our children.

LisaSmall: Hawaii has already heard oral argument on the case, so there's nothing left for the advocates and attorneys to do but wait and see. I do not know how politicized the state supreme court is out there, and I don't know what their customary timing is. The U.S. Supremes are in my backyard, so I'm more familiar with their habits. Extremely contentious cases at the U.S. Supreme Court level are often held back either to avoid some major political date (like an election) or because the members of the Bench are still fighting it out among themselves.

[Editorial note: the Hawaiian State Supreme Court had already sent the case back down to the trial court, where a trial was held in 1996 on whether the state's asserted interest in "protecting children" was sufficient justification for denying same-sex couples the right to marry. On December 3, 1996, Judge Kevin Chang ruled that the state had failed to prove his case. If his decision stands, same-sex marriage is now legal in Hawaii. At the time this transcript was prepared for AOL, the state had not yet announced an appeal. However, based on the state's previous claims that it would appeal any decision that legalized same-sex marriage, and based on the heavy political pressures on the state, I assume that they will appeal and that the appeals process will take another six months to a year to work back through the courts to the Hawaii State Supreme Court. The case cannot go to the U.S. Supreme Court because the same-sex couples based their arguments on the state constitution only; the state supreme court is as high as the case can go. -- LS]

QueerAlly: Please comment on B. Clinton's next move.

WEBLIOGRAPHY: Prepared by LisaSmall

For America Online users: Keyword GLCF...then resource library...then text files....then legal issues....then scroll to the Hawaii section. Keep scrolling; the first set of files you see are the oldest. The bottom set of files will be the most current.
Cornell University Supreme Court Site
This site will allow readers to obtain most of the decisions mentioned in this transcript, with the possible exception of REYNOLDS. Decided in 1879, that case might not be too old. Interested readers should check THE OXFORD GUIDE TO THE SUPREME COURT or a law library for that one.
The Lambda Project on Same-Sex Marriages
This site, operated by The Marriage Project at the Lambda Legal Defense & Education Fund (212-995-8585), answers basic questions about why same-sex marriage should be legalized and its likely effects, especially the possible tourist impact on Hawaii. It contrasts marriage to domestic partnership. Easy to understand in a question and answer format.
ACLU Press Release - 05/22/96: ACLU Says That Clinton Panders to Bigotry This site is the 5/22/96 press release by the ACLU condemning President William Clinton for his announcement that he would sign the "Defense of Marriage Act," which purports to make gay marriages invalid. The press release gives a brief description of the DOMA.
Wisconsin Bill to Prohibit Same-Sex Marriage
This site provides the text of a very short state law which was planned to make Hawaiian same-sex marriages invalid in Wisconsin. The site also provides a brief legislative analysis of the likely impact of the bill, which carefully notes that it is NOT a commentary on whether the bill is valid under the U.S. Constitution.
Jeff's Directory of Supportive Resources on Same-Sex Marriage
This page is a page of links to many major gay sites on the web that have special sections on same-sex marriage.
Gay And Lesbian Alliance Against Defamation's Same-Sex Marriage Page
This page focusses on the Hawaiian / Same-Sex Marriage (NetherNet site)
I could not get access to this site due to web traffic, but it has the best information available on various individual state laws attempting to invalidate same-sex marriages in advance of the Hawaii decision.
Collected Domestic Partner Information
An excellent page at Carnegie Mellon University which contains links to articles on domestic partnership, on same-sex marriage, and to the opinions in the Hawaiian same-sex marriage case BAEHR v. LEWIN and similar cases in other jurisdictions.
Arguments Against Same-Sex Marriage
This page is presented by a pro-same-sex marriage group. It answers each of the most common arguments against same-sex marriage.
Gay 'Marriage': Hawaii's Assault on Matrimony
This page is presented by a group which strongly opposes civil rights, including marriage rights, for gay people. The page gives highlights of the Hawaii Commission on Sexual Orientation report which supports same-sex marriage.

BIBLIOGRAPHY: Prepared by Jean L. Cooper (screen name EleanordeW) 11/26/96.

[NOTE: These brief bibliographies are intended to serve as introductions to a topic, rather than as in-depth studies. -- JLC]

Ayers, Tess. The Essential Guide to Lesbian and Gay Weddings. San Francisco, Harper SanFrancisco, 1994.

Boswell, John. Same-Sex Unions in Premodern Europe. New York, Vintage Books, 1995, 1994.

Ceremonies of the Heart : Celebrating Lesbian Unions. Seattle, WA, Seal Press, 1990.

Dean, Craig R. Gay Marriage : a Civil Right. In: Gay Ethics : Controversies in Outing, Civil Rights, and Sexual Science. New York, Haworth Press, 1994.

Eskridge, William N. The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment. New York, Free Press, 1996. [This title is highly recommended by LisaSmall].

Hill, Leslie. Marriage : A Spiritual Leading for Lesbian, Gay and Straight Couples. Wallingford, PA, Pendle Hill Publications, 1993.

Homosexuality & Gay Rights. Hudson, WI, G.E. McCuen Publications, 1994.

Lesbian and Gay Marriage : Private Commitments, Public Ceremonies. Philadelphia, Temple University Press, 1992.

Mohr, Richard D. The Case for Gay Marriage. In: Symposium on Sexual Orientation. Notre Dame, IN, Thomas J. White Center on Law & Government, Notre Dame Law School, 1995.

Strasser, Mark P. Legally Wed : Same-Sex Marriage and the Constitution. Ithaca, NY, Cornell University Press, 1997.

Union Planner : Your Complete Guide to Creating Your Own Commitment Ceremony. U.S., Rainbow Marketing, 1995.

Willhoite, Michael. Daddy's Wedding. Los Angeles, CA, Alyson Wonderland, 1996. [juvenile]

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