The Same-sex Marriage Civil Rights and

Civil Liberties Webpage

Hunter College.

Do same-sex couples have a right to marry?

Do they have the same Civil Rights and Civil Liberties as straight couples?

If not, are their Constitutional Rights and Guaranteed Protections being violated?

What are Civil Rights?

What are Civil Liberties?

Are they the same for every segment of American society?

Who has the right to marry? Is it a Right?

Who has the right to define marriage, the States or the Federal Government?

What does the Constitution of the United States say?

· What does Public Opinion say about same-sex marriage?

· How is marriage regulated from State to State?

· What have the Courts ruled on same-sex marriage cases?

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Web Page Authors:

Patrick Duff, Jesus Martinez, Angelica Rosa, Victoria Samoylova

What are Civil Rights and Liberties?

They are those rights and freedoms guaranteed by the Constitution of the United States to all its citizens and that cannot be arbitrarily repealed by the government or infringed upon by any individual.

Who defines and regulates marriage, the States or the Federal Government?

In our federal system of government the power to institute statutory qualifications and requirements are set by the individual states and they vary accordingly. However, because of the full-faith and credit clause of the Constitution, each state has to honor legal marriage from any other state within its jurisdiction. There are some exceptions to this, which will be discussed further along in our discourse.

There are no provisions within the body of the U.S. Constitution explicitly enumerating marriage as a right. However, recent court cases in various states challenging the definition of marriage has generated concerns from various citizens' groups, local leaders, the clergy and others--that the traditional scope of marriage may be expanded to include same-sex partners the same right, prompting Congress to draft the Defense of Marriage Act (1996). This has drawn the federal government into the fray by excluding a recognized minority group (Lesbians and Gay men) from a right universal to every other citizen in the United States.

What Does Public Opinion Show?

The overwhelming issue of gay marital rights has increased in American society more rapidly than the very issue of gay rights some twenty post-Stonewall years ago. The public, in times of national concern, appear to be the first that is questioned by pollsters when America needs a quick answer that Washington can't give, or won't until it is certain of public sentiment. The following are a few figures since the last election that show where the general public stands concerning a same-sex marital union in present society.

At the end of 1996, seventeen states had already banned marriage between same-sex partners. By the end of August 1997 this had risen to twenty-one. The issue, it can be seen, is becoming more of a national problem than a so-called 90's trend in rising gay culture and awareness. However, the issue is not as cut-and-dry as some would believe. Of those twenty-one states that have placed a statutory ban on same-sex marriage, twelve states have failed to enact legislation banning it leading us to believe that not everyone is opposed to the idea of allowing same sex couples this taken-for-granted-right accorded straight couples. America is awake.

In a poll taken before the presidential election of 1996, 45% voted that they were less likely to support a political candidate who favors gay rights, although a quarter said such a stand would make them more supportive. The poll, which appeared in Newsweek, June 3, 1996, polled around 800 people who said the main reason that they opposed same-sex marriage was because it would violate their religious beliefs.

One year later the National Conference of Catholic Bishops released a statement on this issue saying, "Marriage is…a lifelong union between one man and one woman…for the procreation and education of children," and furthermore, "no same sex union can realize the unique and full potential which the marital relationship expresses" (The National Conference of Catholic Bishops). This statement causes concern due to the fact that it mentions nothing about heterosexual couples unable to have children by "procreative" means. The aforementioned cited statement sums up the Church's attitude towards same-sex marriage, and it is NO!

Public opinion in America is obtained through randomly selecting broad cross-sections of Americans in different states to answer questions of national concern. Gallup released figures last December that covered issues from "homosexual relations" to "legalizing same-sex marriages." There can be no other public opinion organization in America that the government and public pay attention to more than the Gallup organization.

Gallup figures show that a 52 to 42% of those polled thought that homosexuality should not be considered an "acceptable alternative" lifestyle. The problem with polls is that the actual questions posed to the public can sway them without them even knowing it. The above question was considered unacceptable due to the use of the word "lifestyle." As a result, the question was posed again, but in the following way: "Do you feel that homosexuality should be considered acceptable or not?" The results were identical.

One could argue that polling the public is biased, especially with regard to the actual question presented and who is actually presenting them. With regard to same-sex marriages, the polls do play an important part in this issue's importance, however, the issue is very cut and dry. The American public knows what the issue entails, and the issue's very nature needs to be presented as honestly as possible rather than as cleverly as possible, otherwise the numbers are incorrectly skewed and the results become, at the very least, misleading.

How have the Courts in the United States ruled

On the same-sex marriage issue?

The Constitution of the United States has no guarantees or provisions regarding any form of marriage rights and has let the states decide their individual marriage codes. However, recent litigation in several states challenging the strict definition of marriage barring same-sex marriage has prompted Congress to pass The Defense of Marriage Act of 1996, and signed by President Clinton. Essentially, this congressional act, seemingly, contradicts and suspends Article IV, Section 1 the Constitution's Full-faith and credit clause as it is applied to any decision favoring same-sex marriage recognition in one state from being honored by any other state.

Several years after the 1969 Stonewall Riots in New York City's Greenwich Village, which essentially marked the beginning of the Gay Right's Movement in the United States, we witnessed the first of several same-sex marriage cases brought before the courts.

The first of these cases was heard in the Minnesota courts in "Baker v. Nelson" (1971). The state court ruled against the two male plaintiff's petition to marry. Moreover, the courts in several states have subsequently, and consistently, ruled against same-sex partner requests for equal treatment reaffirming traditional marriage arrangements. The following is a complete list of the subsequent cases heard, and or currently pending. In Wisconsin, Burkett v. Zabloski" (1972); "Jones v. Hallahan" (1973), Kentucky; "Singer v. Hara" (1974), State of Washington; and, "Dean v. D.C." (1991), in the District of Columbia. However, in 1993 in Hawaii we have what may be the precedent-setting case of "Baehr v. Miike" (formerly known as "Baehr v. Lewin") in which a lower state court ruled against the plaintiffs petition for a marriage license. But upon appeal the Hawaiin Supreme Court has ruled that to deny same-sex partners a marriage license violated the state's Equal Rights Amendment (ERA). The high court further ruled that the state had to have "a compelling state interest" (meaning that the state has to prove how this law would, essentially, be injurious to the state i.e. "the people") to deny the plaintiff's request. The onus is now on the state to substantiate and prove how this would "injure" the state, otherwise it would have to issue the licenses to the interested parties', and any other same-sex couples who would qualify. The state appealed and a stay of execution of the order was granted as of December 3, 1996. The case is pending further review.

Other cases in several other states are pending litigation. In Arizona we have "Callender v. Corbett" in which the court ruled against the plaintiffs. This particular case is awaiting the decision in Hawaii to determine how their appeal, if any, is necessary. Another case in New York State is also awaiting appeal by the plaintiffs Toshav and Phillip Storrs, who were also denied a marriage license in 1996. Furthermore, in 1995 in "Brause v. Alaska", the plaintiffs were denied a marriage license. Alaska's Marriage Code has statutory provisions that prohibit same-sex marriages. However, they argue that these statutory prohibitions, and subsequent denial violates their right to privacy and equal protection guaranteed by the Alaskan Constitution. Moreover, they believe that they have met all statutory requirements for obtaining a license except for being of the same sex. In February 1998 the court found that a person's choice of a life partner to be a fundamental right. They found that the marriage codes implicate constitutional provisions and granted the plaintiffs summary judgement (A summary judgement "is a decision made on the basis of statements and evidence presented for the record without a trial. It is used when there is no dispute as to the facts of the case, and one party is entitled to judgement as a matter of law" [The 'Lectric Law Library Reference, Http://www.lectlaw.com/ref.html]). The court also ordered further hearings to determine whether a compelling state interest can be shown denying same-sex marriage. This case may even be decided before the Hawaiin case. Finally, 1997 saw a case filed by three same-sex couples in Vermont.

These cases challenge the refusal by several states barring the issuance of marriage licenses to same-sex couples. Furthermore, they raise civil rights and civil liberty issues surrounding what seem to be fundamental rights guaranteed and protected by laws across the country for one segment of our society and not another, that is the right to marry legally. Moreover, they challenged, and continue to challenge, the very definition of marriage, and brought to light the benefits of legal unions and the disparity that exists between the protections accorded heterosexual couples which are denied to same-sex partners seeking the same protections.

As evidenced by these recent challenges to the traditional marriage statutes in several states, there is mounting pressure to extend, and or redefine marriage rights especially in the case of same-sex couples. Ultimately, it would appear that if any state recognizes same-sex marriages as a legal right it is bound to become a question of Constitutional application of the Full-faith and credit clause and the constitutionality of The Defense of Marriage Act of 1996.

What are the Laws Governing Marriage, by State, and How have they been Instituted historically?

The First and Fifth Amendments of the Constitution guarantees citizens certain rights and

freedoms such as freedom of expression and the right to privacy. Furthermore, the Fifth

Amendment states, "nor shall any person be…deprived of life, liberty or property, without due

process of law." But what do we see in reality? That since colonial times in America we have

been divided along majority and minority group lines according to race, sex, age, etc. Blacks,

Asians, women, gays and lesbians belonged to that minority historically and continue to some

extent to belong to a certain margin of society. Gays and lesbians continue to exist in the margins.

The latter part of the nineteenth century saw the passage of the Thirteenth Amendment

abolishing slavery and granting blacks equality, women got the vote early in this century and 1967

saw the repeal of miscegenation laws which had forbidden interracial marriage in many states. The

only minority group that we openly deny certain civil rights to are gay and lesbian citizens.

It is often said that one of the most fundamental units of American society is the family vis-à-vis legal marriage, however gays and lesbians are excluded from this, most basic, and important societal institution. But what is marriage anyway? Why do we talk so much about it? Is it a social construction; is it a legally defined unit; is it a religious sacrament; or is it simply established to sanctify procreation?

According to information about our first settlers in America marriage was of a procreative strategy for survival. The following is a direct quote from The Detroit News dated Friday, July 11, 1997, "In the eyes of colonial lawmakers, desperate for a new generation of workers, the most dangerous form of waste was spilling the male 'seed' of human reproduction instead of planting it where it might grow." The object was not to forbid homosexuality but the non-procreative expenditure of semen! With the possible exception of New Haven, Connecticut, no colony threatened the death penalty for female-female sex. The laws forbidding same-sex relationships were created in this seventeenth century frontier climate in keeping with this survival strategy to create new generations of laborers for America. This colonial period with its rigorous survival demands are long gone and yet we still have such laws on the books and continue creating new restrictions on same-sex relations.

There has been much recent debate surrounding the instability of the American family and the decline of marriage rates in our country; yet, we resist legally sanctioning this stabilizing institution for gay and lesbian men and women. It seems ironic that gay and lesbian groups are amongst the most vocal proponents of marriage at this time when marriage as an institution seems so endangered. This "battle" for marriage seems to be one of the most important ones waged since the beginning of the modern gay rights movement in 1969.

The Fourteenth Amendment requires that all citizens be represented and equally protected by law regardless of their differences. Keeping the aforementioned in mind we will look at various types of marriage statutes of many states that establish certain restrictions and exclusions. A Marriage Validation Statute indicates that if the marriage is not legal in one state, and the couple went to another to wed, it would be valid in both (this is in accord with the Full-faith and credit clause, Article IV, section 1 of the Constitution). But this is not the case yet with same-sex couples. Furthermore, a Marriage Evasion Statute adds, "if a couple has gone to another state in order to obtain a marriage, because that marriage would have been invalid in their home state (the state in question), that marriage is still invalid in their home state. This law trumps marriage validation statutes in states which have both" (Same-sex Marriage Overview Chart). Recently, we have the Defense of Marriage Act (DOMA) that was signed by President Clinton in 1996. This act defines marriage between a man and a woman only regardless of state of origin, therefore it essentially bars gays and lesbians from legally sanctioned marriage. The following quote is from Kentucky Law: Sexual Orientation, HIV Status, and Transsexuality, "Although not tested within the U.S. courts yet, the federal constitution, and U.S. Supreme Court rulings on interracial marriages appear to require states to recognize any type of marriage performed in another state not illegal under federal law, thus DOMA may be unconstitutional" (http://convex.uky.edu/~jajone00/gayky/laws.htm).

The Sodomy Laws do not seem to apply for those of opposite sexes. However these laws prohibit certain sexual practices by same sex partners, "Less than half of the states now have a sodomy law with the majority of states and the District of Columbia having abolished their sodomy laws (many left over from colonial days). In some states, the legal status of sodomy laws is convoluted. For instance, the Texas statue is still on the books and was not overturned by a high court ruling. It, however, cannot be enforced due to a lower court ruling left intact by the politically skittish Texas high court. Massachusetts has a sodomy law, but its high court has ruled that it does not apply to consensual acts between adults. Punishments in states with sodomy laws vary from misdemeanors with dollar fines to felonies punishable by up to 20 years to life! In colonial Virginia, at least one man was hanged having been convicted of sodomy" (Kentucky Law: Sexual Orientation, HIV Status, and Transsexuality). Furthermore, the quote continues by stating that, "Historically, these laws were used in the 19^th and early 20^th century far more often against African-Americans as a way to oppress, humiliate, and control people under segregation. Today in states that continue to enforce their sodomy laws such as North Carolina, are used almost exclusively against gay and lesbian people." This is the present state of affairs in regards to statutory regulations, but because of continuing legislative activity throughout the nation it can be said that this is a flashbulb picture of the moment with the understanding that these conditions can change, but the history can't.

What are the Internet Websites that deal with Same-sex Marriage Issues?

Searching the World Wide Web has been an interesting and fruitful adventure overall. The internet provides us with information on just about any subject. It links us to people and organizations all around the world. There are literally thousands of web links on any particular subject. It was important to sort out the most relevant same-sex marriage information we gathered from the internet. Some of the information was very useful and concrete, much was sparse, incomplete or just simply wrong and of no use. Keeping in mind that many millions of individuals and organizations have access to this super-highway, and the ability to create websites full of their beliefs and opinions, we understood that not necessarily everything that was presented on any given website would be either complete, or correct. Therefore, we decided to include those that seemed most reliable.

After many exhaustive hours of searching the web for anything, and everything related to "same-sex marriages," we realized that much of what we read was redundant, and or just simply extraneous. We sifted through this information gleaning what seemed valid and supportive of our topic.

The most reliable information seemed to be those from established organizations that had a long-standing interest in gay and lesbian rights in general and in the issue of same-sex marriage in particular. These organizations such as Gays and Lesbians Against Defamation (GLAAD), provided much data freely and clearly. Their website and home page was clear and very informative. It was an easy site to navigate with further web links to assist our search and retrieve more specific data.

Not knowing much about same-sex relationships, domestic partnerships or marriages we found the information fascinating and compelling. It was instrumental in broadening our understanding of how civil rights are changing and mutable concepts, in general, and restrictive with regards to gays and lesbians and their plight to be accorded similar standing. Everyone seemed to take an opinion from moral, political, or just simply personal stances, whether they were from not-for-profit advocacy groups, religious groups or government policy-making bodies. This issue is not just an American issue but a worldwide issue with groups all over the world in favor or against this same-sex marriage concept. More importantly this issue has legal and social implications for all of us.

It was heartening to see that our web searches, using various search phrases, retrieved mountains of information and websites that would make gathering all the pertinent information easier than expected. As we have stated, GLAAD was a very useful website, other websites however, were not as concise. Could it be that some of these sites thought the same-sex marriage issue too controversial and didn't want to offend or alienate some their contributors, or perhaps are better at dealing with anti-gay violence issues, HIV and AIDS concerns that are just as important to the gay and lesbian community. Whatever the case may be, we will provide you with the following websites and web addresses to enable those who choose to do further exploring and "surfing," to do so with a greater degree of competence and ease.