In Lawrence v. Texas (2003), the Supreme Court had overturned state same-sex sodomy laws, and according to advocates of gay and lesbian rights, celebrated the dignity of same-sex union. In his dissent in that case, Justice Antonin Scalia expressed fear that state laws prohibiting other types of behavior, including bigamy, would fall as a result. Critics derided Scalia's fears, but this year events proved him something of a prophet. Although the decision said nothing about marriage, it seemingly triggered a rash of laws and state court decisions regarding the nature of unions between gay couples, and a predictable backlash from those who argue that marriage was ordained by God as a relationship between a man and a woman.
The fight actually began in 1996, when the Hawaii Supreme Court ruled that same-sex marriage might be permissible under the state's constitution. This led Congress and 37 states to pass laws designed to halt that idea before it could spread. The laws, designed to create a sort of legal flood-wall, for the most part defined marriage as the union of one man and one woman, or in case of the federal Protection of Marriage Act, said that no state would have to recognize a same-sex marriage from another state. There had been no challenge to that law, because until late 2003, no state had come out and directly said that marriage could be a union between two men or two women.
Then in November 2003, the Supreme Judicial Court of Massachusetts, by a 4-3 vote in Goodridge v. Department of Public Health, invalidated the state's ban on same-sex marriage, ruling that the right to marry is "the right to marry the person of one's choice." regardless of gender. Chief Justice Margaret H. Marshall, writing for the majority, rejected the state's argument that the purpose of marriage was procreation. That argument, she said, was largely a cover for "persistent prejudice" against homosexuals. The court then took the extraordinary step of redefining the common law definition of marriage. Instead of a union between a man and a woman, it is "the voluntary union of two persons as spouses, to the exclusion of all others." Although Chief Justice Marshall declared marriage as a civil right, essential to "the dignity and equality of all individuals," the court stopped short of actually legalizing same-sex unions, referring the issue to the Massachusetts legislature for action "appropriate" in light of the ruling. It gave the legislature six months to act.
The court's decision relied on the state constitution -- although the majority cited Lawrence frequently -- and therefore could not be appealed to the U.S. Supreme Court, since no federal questions were involved. The Massachusetts legislature could have proposed an amendment to the state constitution defining marriage as between man and woman, and that would have nullified the court's decision. Although Republican governor Mitt Romney vowed to push for the amendment, the legislature failed to act. In late March 2004 the legislature indicated that it might be willing to write civil unions into the state constitution -- an arrangement that allows for economic benefits for same-sex partners but legally is a step below marriage. But in February, in response to a request from the state senate, the court handed down an advisory opinion (an opinion as to the constitutionality of a bill under consideration, an act legal in Massachusetts but not allowed in most other states or in the federal system) that said civil unions would not be acceptable; the state constitution required full equality, and that meant marriage.
As the deadline neared, Governor Romney found that he could not get the Democratic Attorney-General of the state to pursue further legal action. Thomas F. Reilly, who may run against Romney in the next gubernatorial election, said that nothing would be gained from going back to the court. The judges had spoken, and it was now up to the legislature to act. Test votes in both houses of that chamber indicated that majority of the senators opposed a constitutional amendment, and there was little appetite for it in the lower house either.
On Tuesday, May 18, 2004, city clerks began processing applications for wedding licenses from same-sex couples, making Massachusetts -- arguably the most liberal state in the nation -- the first to grant marriage licenses for gay and lesbian couples. As Governor Romney and opponents of same-sex marriages sought to find some legal way to reverse the results of the court's ruling, same-sex marriages continued as homosexual couples, some of whom had been together for more than thirty years, finally took a step that many of them thought they would never be able to do in their lifetime.
Meanwhile, homosexual rights seemed to advance in other states as well. Vermont had earlier ruled that the state's constitution permitted civil unions, and the New Jersey legislature passed the Domestic Partnership Act by a lop-sided vote in January 2004. Governor James McGreevey, who in August resigned to avoid a corruption scandal and at the same time announced that he was gay, immediately signed it. The act vested same-sex couples in committed relationships with many of the rights and privileges of married couples, including joint health insurance, pension benefits, hospital visitation rights, the ability to make health care decisions on a partner's behalf, some tax and inheritance benefits, and protection from discrimination based on their status. The law also required New Jersey to recognize any domestic partnership or civil union created in another state.
Then in February, San Francisco mayor Gavin Newsom, relying on the Lawrence decision as well as the action of the Massachusetts court, ordered the city clerk to begin issuing marriage licenses to gay and lesbian couples. Although 4,000 couples secured licenses and got married, in August the California Supreme Court invalidated all of the unions, ruling that Newsom had exceeded his authority to order the issuing of licenses. The court did not rule on the issue of whether the state's ban on same-sex marriages was constitutional, only that the mayor lacked statutory power to act, and that the resulting marriages were invalid.
The Massachusetts decision and the new militancy of gay rights advocates inevitably triggered a back-lash. President George W. Bush, in a clear election year bid to his socially conservative supporters, came out for a constitutional amendment defining marriage as a union between a man and a woman. "If we are to prevent the meaning of marriage from being changed forever, our nation must enact a constitutional amendment to protect marriage in America." Bush appeared willing to let the states construct alternative arrangements, such as civil unions, but his proposal found little support in Congress, even among some opponents of gay marriage. For many conservatives, amending the Constitution is not a matter to be undertaken lightly, and not for reasons of social philosophy. Others, including Vice President Dick Chaney, saw marriage as traditionally a matter of state control, and while they did not like what had happened in Massachusetts, neither did they see this as a reason to amend the Constitution.
Although no case is currently on the docket of the Supreme Court, it will only be a matter of time before the justices will be confronted by one of many legal issues that are already beginning to surface. An obvious challenge will be to the Defense of Marriage Act, since it seems clearly to contradict the Full Faith and Credit Clause. While Massachusetts, New Jersey and Vermont allow same-sex couple to file joint state tax returns, what will happen when a married lesbian couple, for example, tries to take advantage of the benefits available to married couples in their federal return. There is nothing in the tax code or in any federal statute that deals with this issue, and if the Internal Revenue Service refuses to allow the exemptions there will certainly be a court fight. Howard Medwed, a tax attorney in Boston, said such a case would be an ideal challenge to the Defense of Marriage Act, and he would argue it on equal protection grounds. Medwed said that he has identified penalties in the tax code that could add up to more than a million dollars for an average gay couple over their lifetimes. "I think tax will be one of the battleground areas." Inheritance tax burdens (which are significantly lower if one can bequeath to a spouse), Social Security survivor benefits, insurance and retirement systems governed under federal law, and adoption are matters for potential litigation.
In addition, some commentators believe that Lawrence by itself is a very shaky reed upon which to base claims of equal rights for gays and lesbians. In January 2004 the Court of Appeals for the 11th Circuit upheld Florida's ban on the adoption of children by sexually active gay men or women. The unanimous ruling in Lofton v. Secretary of the Department of Children and Family Services said that the Lawrence ruling did not control because the Supreme Court decision had targeted a criminal statute involving adults and not, as in Florida, a state privilege involving both adults and minors. Moreover, Judge Stanley Birch went on to criticize Lawrence, declaring that "we are particularly hesitant to infer a new fundamental liberty interest from an opinion whose language and reasoning are inconsistent with standard fundamental-rights analysis."
A short while later, an intermediate state appeals court in Kansas also dismissed Lawrence. Two days after Lawrence had been decided, the Kansas Supreme Court sent back to the lower court the case of Limon v. Kansas, involving an 18-year-old man who had had sex with a 14-year-old boy and been sentenced to 17 years in prison. Matthew Limon's attorney noted that under the state's so-called "Romeo and Juliet" law, Limon's sentence would have been fifteen times lighter if he had had sex with a 14-year-old girl. The Kansas court as instructed took Lawrence into account, and then dismissed it on the grounds that it involved adults, not minors. The judge, however, also relied in part on that section of Justice Kennedy's opinion that specifically said "The present case does not involve minors."
Other cases are already working their way through the courts, any one of which might end up in the Marble Palace. The U.S. Court of Appeals for the Armed Forces heard arguments in United States v. Marcum, which raises the issue of whether the military's ban on same-sex sodomy is viably in light of Lawrence. The Utah Supreme Court is considering State v. Green, which includes a Lawrence-based challenge to the state's anti-polygamy laws. In the 11th Circuit Alabama is defending its law banning the sale of sexual aids or devices, and opponents of the law invoked Lawrence.
Meanwhile, gay rights advocates continue to do battle in lower courts. In New York a local judge called the state's ban on same-sex marriages unconstitutional, and dismissed a criminal prosecution against a mayor who had married gay couples without a license. In California, the Supreme Court, which had not touched the merits of gay marriage in the Newsom case, unanimously agreed to hear a suit that raises questions about businesses' ability to discriminate based on marital status. The case involves two lesbians who sued San Diego's Bernardo Heights Country Club after being told they did not qualify for family membership because they were not a married couple. While the case could be decided strictly under California law, it is also possible that the country club could invoke a federal property argument, thus making it possible for them, should they lose, to appeal to the Supreme Court. In Massachusetts several businesses that gave civil partnership benefits have now decided not to do so, since the gay and lesbian employees have marriage as an option.
Aside from larger questions of states rights, federalism, and equal protection, the increasing number of same-sex unions -- whether as married couples or not -- has led to other issues that many courts have never seen. Civil unions, like marriages, can be terminated, but no one is quite sure what this means in terms of property, child custody, and the like. To take but one example, in California a lesbian couple wanted a child, and decided which partner would be the biological mother. After several efforts at artificial insemination had failed, a fertility doctor tested Ethel Grand and suggested that she be implanted with her partner's eggs. The procedure, followed by insemination from an anonymous sperm donor, worked, and one year later she gave birth to healthy twin girls. Five years later, however, Grand and her partner, Karen Mosely (neither partner's name is their real one), split, and both sued for custody of the girls, both claiming to be their biological parent. A judge ruled that since Mosely had never formally adopted the girls, custody would go to the woman who had born them, a decision that caused an enormous uproar in the San Francisco gay community. While the circumstances here may be unique, it is only a foreshadowing of many other issues soon to be found on state and local court dockets across the country.
As a footnote, recall Justice Scalia's worry that bigamy laws might also come under attack. A Utah woman and her would-be husband -- denied a wedding license because he was already married -- filed suit, along with the man's current and lawful wife, in federal court in Utah. The plaintiffs, a G. Bronson (the woman who wants to marry), G. Lee Cook and D. Cook (the already married couple), claim that their desire to live polygamously is inspired by their deeply held Mormon religious beliefs, and as such warrant constitutional protection. They want to live as their forebears did before the Church of Jesus Christ of Latter-day Saints gave up polygamy under intense pressure from the federal government in 1890.
The Court rejected the idea that polygamy warrants free exercise protection in Reynolds v. United States (1879), and more recently the Court has affirmed the idea that religious beliefs per se do not warrant exemptions from criminal statutes. But the attorney for the plaintiffs is taking a different tack. Brian Bernard notes that in Utah sex outside of marriage, adulterous or not, is a crime, as was consensual sodomy in Texas. Therefore if the Utah couple remained unmarried and engaged in sex, they would be subject to criminal penalties both for their act and for adultery. Bernard will argue that it would be logical to extend the protection of private conduct in the Lawrence case to polygamy, and in the process overrule Reynolds. Moreover, since the federal polygamy law upheld in Reynolds was aimed at a particular religious sect, the Mormons, the Court would be forced to re-examine the ruling in light of its holding in Church of the Lukumi Babalu Aye v. City of Hialeah (1993). There the Court struck down an animal sacrifice law aimed specifically at the Santeria Church. Between the condoning of private conduct in Lawrence and the ruling in the Santeria case, Bernard believes a strong case can be made in support of polygamy.