On February 24, 2004, President George W. Bush addressed the United States to discuss what he referred to as a matter of “national importance.” In an address from the White House he declared:
The union of a man and woman is the most enduring human institution, honored and encouraged in all cultures and by every religious faith. Ages of experience have taught humanity that the commitment of a husband and wife to love and to serve one another promotes the welfare of children and the stability of society. Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society.
To protect a traditional definition of marriage, he called on Congress to pass an amendment to the U.S. Constitution that would restrict marriage exclusively to opposite-sex couples. As Bush stated, if “the most fundamental institution of civilization” were to include gay couples, the meaning of marriage would change forever with “serious consequences throughout the country.”
Prominent supporters and opponents of a federal marriage amendment immediately reacted to the president’s proclamation. Gary Bauer, a former Republican presidential candidate, stated, “Every culture in the world, every civilization in the world for over 3,000 years, has defined marriage as the union of one man and one woman. The constitutional amendment merely states that again.” On the other side of the fence, National Gay and Lesbian Task Force executive director Matt Foreman characterized support for the amendment as “anti-gay, partisan, divisive and distinctly un-American.” Gays and lesbians were not alone in their opposition. San Francisco mayor Gavin Newsom, for example, criticized the president’s amendment proposal as “enshrining discrimination in the Constitution.” The fervent debate inspired the San Francisco Chronicle to call gay marriage “the most divisive civil rights issue in a generation.”
The battle to legalize gay marriage
In the 1990s the issue of gay marriage seized the nation’s interest when three same-sex couples filed a lawsuit against the state of Hawaii for denying them marriage licenses. Similar claims against gay marriage prohibitions had been filed before in other states, but none had been successful. The Hawaii Baehr v. Milke case won on appeal in 1996, and the first court in America declared that banning same-sex couples from marriage is not constitutional. However, before the decision went into effect, popular opposition swelled and voters amended Hawaii’s constitution to restrict marriage to heterosexual couples in 1998. In addition to sparking antagonism within the state of Hawaii, Baehr v. Milke generated opposition to gay marriage on a national level. In September 1996 President Bill Clinton signed into law the Defense of Marriage Act (DOMA), which defines marriage for all federal purposes, such as federal laws and taxes, as “a legal union of one man and one woman.” DOMA also allows any state to refuse to recognize same-sex unions formalized in other states. Gay marriage opponents, not satisfied with federal measures like DOMA, are working to prevent gay marriages from gaining legal recognition within states and cities as well. To this end, they have introduced legislation to prevent gay couples from filing joint state tax returns and from receiving other state and local marriage benefits in various cities, counties, and states from Washington to Alabama.
In recent years advocates and opponents of gay marriage have continued their battle over the issue of gay marriage. Canada made an unprecedented move when its justice panel declared that excluding gays and lesbians from marriage is discrimination. The Canadian court mandated that the federal government align its marriage laws with Canada’s Charter of Rights and Freedoms, which legalized gay marriage as of July 2004.
In the United States two state supreme courts have taken similar steps toward legalizing gay marriage. In 1999 Vermont justices ruled that same-sex couples are entitled to all of the protections and benefits that married heterosexual couples receive. The Massachusetts Supreme Court reached the same conclusion in 2003. However, the two states came up with distinctly different solutions to execute the verdict. Vermont created “separatebut- equal” civil unions for same-sex couples but did not give gays and lesbians access to marriage licenses. The Massachusetts court, on the other hand, ruled that same-sex couples be allowed to marry. By committing to issue same-sex couples official marriage licenses, Massachusetts granted gay couples more legal and cultural legitimacy than anywhere in the United States. Same-sex couples in Massachusetts now have the right to a full civil marriage and its hundreds of legal benefits and obligations. The ruling went into effect on May 17, 2004.
On the other side of the country, San Francisco mayor Gavin Newsom joined the movement to legalize gay marriage by ordering the city clerk to issue marriage licenses to same-sex couples on February 12, 2004. Couples lined up by the hundreds and within just three days, more than sixteen hundred same-sex partners were wed. Newsom argued that even though California voters approved a referendum in 2000 defining marriage as the union between a man and a woman, the equalprotection clause of the state constitution trumps the state law and gives gay couples the same right to marry as heterosexuals. A month later California governor Arnold Schwarzenegger ordered the state’s attorney general to halt the marriages after more than four thousand couples had wed. Whether the San Francisco gay marriages will be considered valid in the future has yet to be determined.
Gay marriage and the government
The controversy over gay marriage has inspired a great deal of debate about how much power the government should have in marriage issues in a representative democracy. The discussion tends to focus on three main areas: First, people debate the purpose and responsibility of the judiciary in a governmental system that relies on the “checks and balances” of power shared among the executive, legislative, and judicial branches of government. Many arguments focus on whether judges or legislators should have the authority to define marriage. The second debate concerns the balance of power between federal and state interests. Some believe that the federal government should impose uniform marriage laws across the nation. Others argue that states should be able to determine their own laws to regulate marriage within their boundaries. Finally, the third debate is over the historic separation of church and state. Since marriage can be viewed as both a religious institution and a civil procedure, people disagree about whether religious organiza- tions or the government should be entitled to delimit and regulate marriage.
Debates about the role of the government in the United States have challenged citizens since the federal union was formed. Arguments over gay marriage can become passionate because the issue intersects with fundamental questions about the power of government in a democracy.
Guardians of the law or “activist” judges?
The role of the judicial branch of government is delineated in Article III of the U.S. Constitution: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” The language is broad enough to allow more than one understanding of judicial responsibility. Most Americans agree that judges should interpret laws and ensure their enforcement. Some believe that in interpreting laws, judges have the authority to question whether the laws themselves are valid and just. Others argue that such fundamental probing overreaches judicial responsibility and extends judicial power into an area that should be the exclusive domain of the legislative branch of government.
Same-sex couples have taken their marriage cases to the courts in recent years in the hope that judges will find any exclusionary practice to be unjust discrimination. However, many who oppose gay marriage condemn recent judicial decisions that have given same-sex couples equal access to the rights and benefits of marriage. They argue that judges who change laws that are already in the books overstep the role of the judiciary. Among the critics is Senate majority leader Bill Frist (R-TN) who said, “Marriage should not be redefined by the courts. . . . We must protect, preserve and strengthen the institution of marriage against activist judges.” By labeling some judges as “activists,” opponents of gay marriage make it clear that, in their view, laws are only rightfully made by the citizens of the United States who voice their preferences by voting for legislators to represent them in Congress.
In contrast, gay marriage advocates compare judges’ recent rulings in favor of gay marriage to the rulings judges made to rectify institutionalized racial discrimination during the civil rights struggles of earlier years. From their point of view, fighting for equality in the courts is a long-standing American tra- dition. Moreover, some advocates of gay marriage claim that judges are accused of being “activist” only when they support the rights of political or cultural minorities. Legal expert Steve Sanders writes:
Many conservatives, full of phony populist indignation, tell a dishonest, oversimplified story [labeling judges as “activists”] to an ill-informed public. This provides cover for conservatives to appoint their own judges—many of whom are committed not to some tedious process of cranking the legal machinery, but rather to making law that reflects their policy preferences.
According to Sanders, some opponents of gay marriage only accuse judges of overstepping their role when judicial rulings do not meet with their approval. These smear campaigns, insists Sanders, cause “many Americans [to] confuse prejudice and sectarian dogma with legal reasoning.”
State sovereignty versus national unity
Another key controversy in the gay marriage debate is the enduring issue of states’ rights versus federal power. Since the founding of the republic, citizens have debated what balance of power should exist between individual states and the federal government. The movement to pass a federal amendment banning same-sex marriage has caused many Americans to question whether marriage issues should be resolved federally in the U.S. Constitution.
Objections to a federal amendment are not made exclusively by liberal Americans. Traditionally, conservative Americans tend to argue against sweeping federal directives that limit state self-government. Anti-federalists argue that each state should be able to determine its own policy on social issues such as marriage. To justify his support for a federal amendment as a Republican, President Bush explained that he believes the “voice of the people” is being compromised by the actions of a few judges in isolated cases. Such actions, he argues, potentially threaten every state in the union because of the “full faith and credit” clause in Article IV of the Constitution, which requires all states to honor the laws of every other state. “Those who want to change the meaning of marriage,” said Bush, “will claim that this provision [the full faith and credit clause] re- quires all states and cities to recognize same-sex marriages performed anywhere in America.”
Conservatives opposed to a federal resolution to the gay marriage issue cite a range of reasons. Some fear an amendment could divide the Republican Party and create deep resentment in those who think it is more important to focus on cutting taxes and reducing federal spending than battling over social issues such as marriage laws. Other Americans believe the Constitution should be amended only to address a great public policy need and always with the intent of strengthening and expanding rights and protections. They argue that an amendment that restricts marriage to heterosexuals limits rather than expands rights. Both conservative and liberal gay marriage advocates condemn the spirit of an amendment that they believe singles out one group of people for discrimination.
Separation of church and state
Perhaps the most contentious issue in the gay marriage debate is the meaning of the separation of church and state in the United States. Founding fathers Thomas Jefferson and James Madison fought vigorously to convince Constitutional Convention members in the 1780s that the government must be protected from any religious influences. Their efforts yielded Article VI, Section III in the Constitution (“No religious test shall ever be required as a qualification to any office or public trust under the United States”) and the freedom-of-religion clause in the First Amendment of the Bill of Rights (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”).
As with the other key controversies about the role of government, the church/state issue is interpreted differently by opponents and advocates of gay marriage. Gay marriage foes such as the Catholic Congregation for the Doctrine of the Faith argue that state support of same-sex unions breaches freedom of religion and conscience. Their 2003 statement on gay marriage proclaims that “marriage is holy, while homosexual acts go against the natural moral law,” and that no religious authority should be forced to conduct marriages that go against the organization’s beliefs. According to the Catholic Congregation, legalizing gay marriage is the equivalent of religious persecution.
However, advocates of gay marriage point out that marriage is a civil institution as well as a religious one. Because the church and state are separate institutions, they argue, same-sex couples have a right to a marriage that is sanctioned by the government. Advocates emphasize that recent judicial decisions and legislation in support of gay marriage do not require religious organizations to conduct gay wedding ceremonies. Congressman Jesse L. Jackson Jr. criticizes those who want to make the gay marriage issue an exclusively moral or religious debate. He states, “All issues have a moral underpinning and a religious dimension to them, but in our secular society, religious institutions are under no moral, religious or legal obligation to perform or bless gay unions. Such institutions are free to either grant or withhold such celebrations and blessings.” Like Jackson, political commentator Katha Pollitt believes that in a free republic like the United States, civil rights should be shared equally by all citizens regardless of their religious affiliation. She writes, “It’s not about what God blesses, it’s about what the government permits.”
Advocates also challenge the notion that all religious groups oppose gay marriage and assert that those that do not should have the freedom to allow gay weddings complete with marriage licenses. The Universal Fellowship of Metropolitan Community Churches (UFMCC) has conducted gay and lesbian weddings since its inception in 1968. Similarly, the Unitarian Universalist Association passed a resolution in 1984 to affirm and conduct same-sex union ceremonies, and another in 1996 to support “legal recognition for marriage between members of the same sex.” Many ministers, priests, rabbis, and other religious leaders have publicly conducted same-sex union ceremonies in recent years. Some have defied the official sanctions against gay unions in their own religious organizations and have spoken out for religious freedom in a diverse nation.
Clearly, the role of government in the gay marriage issue is a complex political and legal quagmire that raises fundamental questions about justice in the United States. Related questions about morality, family relationships, freedom of expression, and sexuality are also at stake in the gay marriage debate. At Issue: Gay Marriage includes a broad spectrum of views on the subject. The collection of voices in this volume reflects the debate over one of the most controversial issues facing Americans today.