One of the most controversial issues in modern-day America is the debate surrounding the rights of same-sex couples to marry. Currently, same-sex unions are legal in three American states, Massachusetts, Connecticut and Iowa. Legislation recently passed in Maine and Vermont to recognize same-sex marriage. Those laws will go into effect this September. The state of New Hampshire also has an equal marriage law in debate right now, with state governor John Lynch pushing for stronger language protecting religious institutions before he will sign. That itself seems like little more than a stall and it is likely that New Hampshire will see the legalization of same-sex marriage within the next six months.
Despite all of the progress in Iowa and in New England, the marriage equality debate has seen stronger opposition on the West Coast than one might imagine. The whale in the struggle for equal rights is California, the Supreme Court of which recently upheld the highly-publicized Proposition 8 altering the state constitution to overtly ban same-sex marriage. Prop 8 did not, however, nullify those same-sex marriages performed in the brief period when they were legal.
The debate has branches in other West Coast states as well. Groups opposed to same-sex marriage in Washington are currently circulating a petition to place Referendum 71 on the next state ballot. Ref. 71 seeks to roll back rights afforded to civil unions of same-sex couples in Washington. If Ref. 71 comes to a vote, those who want the laws to remain where they are will have to vote Yes. Currently in the state of Washington, same-sex partners in civil unions have all the rights and responsibilities afforded to heterosexual married couples. Though there is no technical difference between marriage and civil union in Washington, equal rights groups continue to pursue marriage equality based on the principle that the current distinction echoes the Separate But Equal laws applied to black Americans in the first half of the 20th century.
When the California Supreme Court handed down its decision on Tuesday, May 26th, equal rights groups around the nation held rallies and protests. Here in Seattle the largest rally took place at Westlake Center and was attended by several state legislators, including Senators Murray and McDermott. Like many of the demonstrations held outside of California, Seattle's rally focused more on the issues facing the local effort, as well as the increasing cooperation between civil rights groups around the country.
For proponents of same-sex marriage in California, there are still potential avenues to challenge Prop 8. In the next election it is possible that voters may come to repeal the amendment made by Prop 8, or if a reasonable argument can be made that the amendment and the proposition that created it are truly Federal concerns, the debate may rise as high as the US Supreme Court. The strongest argument so far for the Federal debate is the nature of Prop 8's primary funding. A majority of the campaign dollars for Proposition 8 came from The Church of Jesus Christ of Latter-Day Saints, a religious organization which operates out of the state of Utah. The case can be made that an out-of-state organization should not be allowed to so strongly and overtly influence legislation, or that the funding from the LDS violates the separation of church and state.
On a less specific but considerably more powerful note, the same-sex marriage debate in any state in the union, but specifically California, may be found to be in violation of the 14th Amendment of the United States Constitution. Article 1 of Amendment 14 states:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
In the California State Constitution, it directly defers to the above article in terms of its own Equal Rights Clause. It is more than a little cognitively dissonant to see that very provision followed by, "Only marriage between a man and a woman is valid or recognized in California."
The center of this debate may very well become a debate of the semantics of the intentionally vague Equal Protection Clause. Is the right to marry, regardless of gender, a right of Life, Liberty, Property and/or Equal Protection Under The Law? There are cases on both sides of the debate, but when we get into the nitty-gritty of the rights and responsibilities afforded to people by marriage, it's difficult to make the case that individuals aren't being harmed by the restriction of marriage to only heterosexual couples.
In the United States, civil marriage has a number of meaningful, tangible impacts on the rights and responsibilities of individuals. Take, for example, legal guardianship. In a state in which same-sex marriage is not legal and civil union laws are not equivalent to marriage, a minor under the guardianship of a biological parent with a same-sex partner may find him or her self remanded to state custody upon the death of the biological parent, despite the fact that the biological parent's partner acted in every capacity as a guardian. The ban on same-sex marriage also has dangerous implications for how medical care is administered to individuals with same-sex partners, as well as how financial obligations are incurred by a household. Essentially, not allowing same-sex couples to have equal rights and responsibilities as domestic partners creates unnecessary legal messes.
The core of this matter is that the arguments against same-sex marriage are moral arguments. This begs the question, is it the place of our government to legislate morality? Where does the concern for public health, safety and equity end and the people's sense of moral propriety begin? Furthermore, is the legal inequality of LGBT individuals in America any different than the historic legal inequality of people of color? One thing is for certain; this debate is only becoming more heated and progressive laws are becoming more common. By 2010, five (and possibly six) states in our union will have legalized same-sex marriage and they are not likely to be the last.