Below you will find Prince’s research excerpts titled, “08a – History of Same-Sex Marriage.” You can view other topics here.
Search the content below for specific dates, names, and keywords using the keyboard shortcut Command + F on a Mac or Control + F on Windows.
08a – History of SSM
1778:
“[p. 1422] It [this history] reveals the traditional arguments against same-sex marriage to be seriously defective: the definitional argument for centralizing marriage around male–female intimacy is factually wrong; the argument from Judeo–Christian tradition is hypocritical, given early Christianity’s tolerance of same-sex intimacy; and the pragmatic argument is revealed to rest upon a normatively questionable status quo.…
[p. 1469] C. Same-Sex Unions in the Modern West
The modern West—the culture of which we are the best informed—is historically peculiar, expressing hysteria about same-sex intimacy and seeking to suppress same-sex union unions with a fervor not frequently observed in other cultures. Paralleling the story of that suppression is the West’s construction of inversion, sodomy, and homosexuality over time. Because its construction of homosexuality coincided with Western Europe’s domination of the world, the West’s peculiarities have had a disproportionate influence on human history, with great social consequences for non-Western societies such as those surveyed in the previous Section.
The turning point in the West’s attitudes toward same-sex unions or marriages can be located in the 13th century. It was then that many secular governments enacted their first laws prohibiting sodomy and that the existing laws came to be more stringently enforced. In an analogous fashion, the Church began to take a stronger stand against same-sex intimacy, and leading scholastic thinkers such as Albertus Magnus and Thomas Aquinas systematized theological arguments against such behavior. In contrast to the relatively open and tolerant attitudes expressed during the 11th and 12th centuries, Europe after 1200 acted in an increasingly persecuratorial manner toward any kind of behavior that transgressed established gender lines, including not just same-sex intimacy but also aggressive, independent behavior such as cross-dressing by women.…
[p. 1470] Why this shift in attitude occurred is not clear, but it can be said that it coincided with the quickening of a culture in the West that was urban, bourgeois, and statist.… Same-sex relationships formerly practiced primarily in the discrete clauses of nunneries, monasteries, and royal courts were less likely to remain unobserved in this bustling urban environment, becoming more open or apparent, and thereby more troubling.…
[p. 1471] Though medieval society disapproved of certain forms of conduct, including expression of heretical beliefs, devilish behavior, and sodomy, before 1200 no systematic theory explained why certain acts were proscribed, and such conduct was penalized mildly and episodically. After 1200, however, medieval thinkers developed theories that rendered nonconforming behaviors alarming threats, and societies accordingly began to penalize nonconforming conduct more systematically and harshly.…
[p. 1472] During the early modern period (about 1400 to 1700), society’s obsession with bad conduct gave way to an obsession with bad categories of people. Attention shifted from persecuting specific conduct evincing heretical beliefs to identifying and excluding “heretics,” from forbidding demonic behavior to identifying and excluding “witches,” and from penalizing inverted sexual behavior to identifying and excluding “inverts,” or people who engaged in crimes against nature (bestiality, sodomy, and so forth). Eventually, isolated prosecutions of individuals engaging in bad conduct gave way to hysterical persecutorial crazes that swept up throngs of people in popular, ecclesiastical, and official dragnets.
Thus, same-sex unions, which had been viewed as merely problematic during the Middle Ages, were believed in the early modern period to constitute a severe threat to the social order and the now-powerful state.…
[p. 1473] During The 19th century, the west went one step further in its categorization game the invert became the homosexual, as a new breed of doctor—‘sexologists’— came to see sexual affinity not just as a way to categorize and stigmatize a person for his or her activities, but as a ‘sexual orientation,’ an essential part of one’s personality and physical make-up. And because a ‘normal’ sexual orientation was heterosexual, being physically attracted to people of the same sex became not only a homosexual orientation but also a sexual ‘deviance,’ a medical disease.… By deeming homosexuality a disease, the medical profession contributed to a new wave of hysteria and persecution in the West during the middle part of the 20th century, a reaction that was especially vehement in the United States.…
[p. 1484] One important work studying gay and lesbian couples found that they developed a variety of relationships, with those attaining ‘close-coupled’ (marriage-like) stability considered the happiest by the study’s authors.…
[p. 1485] It cannot be seriously disputed that marriage is an institution that is constructed, not discovered, by societies. The social construction of marriage in any given society is fluid and mobile, and most societies we know anything about—including the West—have recognized same-sex unions, usually including same-sex marriages, at various points in their history.…
If marriage is socially constructed and tied in with other institutions and practices, my history suggests a further inquiry: Does the gay, lesbian, and bisexual community want to participate in this particular institution as constructed today? Pursuing the liberal arguments for same-sex marriage, advocates assert that we ought to have the same rights, duties, and obligations as other citizens. But social constructionism poses deeper inquiries: Is marriage itself is subordinating institution? Will it contribute to our long-term happiness and well-being? What is sex might same-sex marriage have on our community, our movement, and our lives?…
Just as there is no essential definition of marriage as different-sex, so there is no essential reading of the Bible that is anti-homosexual. For centuries, the Roman Catholic and Greek Orthodox Churches read the Bible in ways that tolerated same-sex couples, and that early reading has seen a revival.…
[p. 1510] History is one of the ways a dominant group perpetuates its subordination of other groups. By telling the story of its triumphs as though it were natural, inevitable, and good, the dominant group can induce the rest of us to accept its domination. When a suppressed group becomes conscious of its unfair subordination, one response is to write its own version of history.” (William N. Eskridge, Jr., “A History of Same-Sex Marriage,” Virginia Law Review 79:1419-1513, 1993)
1807:
“We cannot put it better than the justices of the Supreme Court of Vermont: “The extension of the Common Benefits Clause [of the Vermont Constitution] to acknowledge plaintiffs as Vermonters who seek nothing more, nor less, than legal protection and security for their avowed commitment to an intimate and lasting human relationship is simply, when all is said and done, a recognition of our common humanity.” The December 20 ruling in Baker v. State stands as a legal landmark in the controversy about equal marriage rights for homosexuals. It is more important than the Hawaii Supreme Court’s recent meanderings, because it is unlikely to be overruled by the legislature or by popular referendum, and because it rests not on the tangential issue of whether a ban on same-sex marriage violates sexual equality (as the Hawaii court argued) but on the question of whether it violates civil equality itself.
We believe it does. As civil marriage is currently conceived and practiced in America, it contains no requirements and holds out no aspirations that homosexuals cannot achieve as easily as heterosexuals. The point of modern marriage is not merely to procreate–as many childless heterosexual married couples attest. Neither is it to entrench ancient gender roles, with women at home and men at work–as innumerable working families prove. It is to provide a secure, acknowledged institution in which the love of one person for another can find expression and support and in which children, if they are present, can find security and protection. If homosexual love is as deep and as worthy as heterosexual love and if the children of homosexuals are deserving of as much social support as the children of heterosexuals, then there is no principled reason to allow civil marriage for straights but not for gays. Legalizing gay marriage, then, is not a radical reformulation of an unchanging institution. It is the long-overdue correction of a moral anomaly that dehumanizes and excludes a significant portion of the human race.
Opponents of civil marriage for homosexuals (whose ranks include, shamefully, the two Democratic candidates for president and, of course, all the Republican candidates) argue that it will weaken heterosexual marriage. But it is hard to see how. No existing heterosexual marriage will be changed. Same-sex marriage only harms opposite-sex marriage if you believe that homosexuality is so immoral that legitimizing it would instantly undermine family life. We do not hold that belief. Homosexuals are already part of families across America, and they always have been. They deserve to be there under better conditions than strained condescension and fickle toleration. If anything, the equal inclusion of homosexuals in marriage will strengthen family life as it folds gay family members into the social warp and woof of their parents and siblings. Some argue that such a change should never be imposed by the courts, since homosexuality remains a source of widespread public unease. But surely such an argument also applied to the courts’ assaults on anti-miscegenation laws in the 1950s and ’60s. Should the courts not have struck down those laws for fear of invoking “judicial tyranny”? After all, public hostility toward interracial marriage was at least as great in 1967, when it was finally protected by Loving v. Virginia, as is hostility toward same-sex marriage today.
Post-Vermont, we have entered a different world. But it contains pitfalls as well as opportunities. One danger is that supporters of equal marriage rights will accept a semantic compromise that would grant homosexuals every benefit and responsibility of civil marriage but deny them the word. The Vermont legislature is under pressure to construct an elaborate parallel institution, a kind of super-domesticpartnership, that would be identical in all legal respects to marriage but not invoke the m-word. There is an old phrase for this kind of arrangement: separate but equal. To grant homosexuals all the substance of marriage while denying them the institution is, in some ways, a purer form of bigotry than denying them any rights at all. It is to devise a pseudo-institution to both erase inequality and at the same time perpetuate it. What if Virginia had struck down interracial-marriage bans only to erect a new distinction between same-race marriages and mixed-race “domestic partnerships”?
There is in fact no argument for a domestic-partnership compromise except that the maintenance of stigma is an important social value–that if homosexuals are finally allowed on the marriage bus, they should still be required to sit in the back. This “solution” smacks of the equally incoherent half-measure of “don’t ask, don’t tell,” another unwieldy contraption that was designed to overcome discrimination but instead has ruthlessly reinforced it. Equality is equality. Marriage is marriage. There is no ultimate moral or political answer to this question but to grant both. And to keep marshaling the moral, religious, civic, and human reasons why it is an eminently important and noble thing to do.” (“Separate but Equal?,” Editorial, New Republic, January 10, 2000, p. 9)
1949:
“Civil unions are an inadequate substitute for marriage. Creating a separate, new legal structure to confer some benefits on same-sex couples neither honors American ideals of fairness, nor does it grant true equality. The results are clearly visible in New Jersey, which continues to deny same-sex couples some of the tangible civil benefits that come with marriage.
Gov. Jon Corzine of New Jersey has long said that he would sign a measure granting the right to marry to couples of the same sex. We are heartened that he has declared that that should happen sooner rather than later.…
Mr. Corzine made his statement after a state commission released its final report on New Jersey’s two-year-old civil union law. The commission noted the hurt and stigma inflicted by shutting out gay people from the institution of marriage. It also found that civil unions do not assure gay couples of the same protections, including the right to collect benefits under a partner’s health insurance program and to make medical decisions on behalf of a partner who is unable to do so. The panel concluded unanimously that the state should enact a law to remove the inequities.…” (Editorial, “Separate and Not Equal,” New York Times, December 20, 2008)
3065:
“1. The History and Context of Litigation Leading Up to Goodridge
[p. 1165] Goodridge was the first American case to legalize same-sex marriage, but neither it nor the Baehr decision in 1993 was the first lawsuit to challenge the limitation of marriage to heterosexuals. Indeed, within a few years of the Stonewall Riots in Greenwich Village in June 1969—the date usually cited as the birth of the modem gay rights movement—three test cases asserting a constitutional right to same-sex marriage had been brought and decided by appellate courts in Kentucky, Minnesota, and Washington. All three were won handily by the state governments, and none of them seems to have generated much real national attention. There was another case in Pennsylvania in 1984, but the issue did not make it onto the national radar screen until 1993.
In 1993, the Hawaii Supreme Court produced shock waves with a decision that seemed to come out of nowhere.… With shades of Thurgood Marshall’s tactical judgment about avoiding the miscegenation issue, litigators at the [p. 1166] major national gay rights organizations had declined to bring the suit, believing that the introduction of the marriage issue was premature. But Dan Foley, a former ACLU attorney who had moved into private practice, agreed to take the case. It is fair to say that Foley shocked both the gay rights bar and the world with the ruling he obtained in 1993.
In Baehr v. Lewin, the Hawaii Supreme Court rejected other constitutional claims made by the plaintiffs, but accepted the argument that denying marriage licenses to same-sex couples was a form of sex discrimination that triggered strict scrutiny under the state constitution. Based on that conclusion, the court remanded the case for trial on the question whether the State could show that it had a compelling state interest in preventing same-sex couples from marrying. Given that the application of strict scrutiny usually means that the government loses, most observers expected the plaintiff couples to prevail on remand.
That prediction proved correct in 1996, when a trial court judge heard testimony from competing experts about whether there was a compelling state interest in limiting marriage to opposite-sex couples. The State had asserted an array of such interests, stressing in particular the idea that limiting marriage to opposite-sex couples would promote the optimal development of children. Judge Kevin Chang found for the plaintiffs but stayed his ruling while a proposed constitutional amendment was pending. Hawaiian voters later amended the state constitution to require legislative authorization of same-sex marriage. The legislature decided to restrict marriage to one man and one woman, while providing limited benefits to same-sex couples under a new reciprocal beneficiaries’ law. That ended the Hawaii litigation.…
[p. 1167] The other major litigation before Goodridge took place in Vermont, where same-sex couples sought the right to marry under the common benefits clause of the Vermont state constitution. The state supreme court ruled that this clause prevented the state from denying the benefits of marriage to couples based on the sex of the partners. The court did not mandate that marriage itself be offered to same-sex couples but gave the legislature the remedial discretion to determine how to address the constitutional violation.… The legislature later approved, and then-Governor Howard Dean quietly signed, the first state law in the country to allow civil unions. That law gave same-sex couples all the rights and responsibilities that the state gave married couples, but civil unions lack the portability associated with marriage because they do not generally trigger recognition by other states.…
Lawrence came down only a few months before Goodridge, and it did not concern marriage
per se.…
[p. 1185] The nationalization of the conflict was highly successful. In 1995, two years after the Baehr decision and before the Hawaii trial court had even ruled on remand, Utah passed a law declaring marriages between same-sex couples to be void. Between 1995 and November 2003, when Goodridge was decided, an additional thirty-six states followed Utah’s lead and passed measures restricting marriage for same-sex couples in one way or another, and the measures generally passed by wide margins.…
[p. 1186] As was true with respect to the state campaigns that led to the enactment of the ‘junior’ or ‘mini-DOMAs’ in many states, DOMA itself passed by a wide margin: 342-67 in the House and 85-14 in the Senate. In an election year, it was signed by Clinton with no talk of a veto.…
[p. 1188] The post-Goodridge measures had two salient characteristics. The first was the turn toward constitutionalizing the restrictive policy. Only three states-Alaska, Nebraska, and Nevada-had enacted constitutional amendments banning same-sex marriage before 2004. After Goodridge, however, twenty-six additional states passed constitutional amendments—[p. 1189] thirteen states in 2004, two states in 2005, eight states in 2006, and
three states in 2008.…
[p. 1196] TABLE 2. Attitudes Toward Same-Sex Marriage
1996 2000 2004
Approve male-male marriage 10% 15% 26%
Approve female-female marriage 11% 16% 27%”
(Jane S. Schacter, “Courts and the Politics of Backlash: Marriage Equality Litigation, Then and Now,” Southern California Law Review, 82:1153-24, 2009)
1693:
“[p. 1] Within days of the 2008 election, opponents of the measure had targeted its proponents, in particular the Mormon Church, as subjects for scorn. Singling out the Mormon Church on this issue was particularly ironic because to the extent that members of the Mormon Church were responsible for the success of Proposition 8, they simply did to the gay community what courts of the United States consistently did to their forebears: defined away their right to marry. In striking down individuals’ rights to enter into polygamous marriages, courts said that polygamy was not marriage and that monogamy was marriage, but they expended little energy explaining why. This article does not condone either the forceful effort to pass Proposition 8 or the counter-response from the gay community, but it will argue that part of the problem that same-sex marriage [p. 2] (‘SSM’) advocates encounter stems from the failure of courts to explain what marriage is. It is very hard to talk about a right to marry without a common understanding of why states license marriage.
In the end, this article will offer a definition of marriage which suggests that marriage can be beneficial to the state, beneficial to the couple, and integrated into the rich social history of marriage without necessarily being gendered.…
The Supreme Judicial Court of Massachusetts found that the fundamental rights and equality arguments were inextricably intertwined and that gays and lesbians were entitled to get married, but not because they had a fundamental or equal right to do so. Instead, the Massachusetts court found that there was no rational basis for restricting marriage to opposite-sex couples.…
[p. 3] Ultimately, every argument requires a story about why marriage is important, with a definition of what marriage is.…
If the predominant story of marriage is one of an institution that exists to foster differentiated gender role development, then the equality theory rings hollow because same-sex couples and opposite-sex couples are not similarly situated in their ability to reify gender roles in marriage.
[p. 4] Many people will scoff at this understanding of marriage as a purposefully gendered institution. How can that be a legitimate definition in an era of gender equality? Perhaps it is not a legitimate definition of marriage, but it is an accurate description of contemporary marriage.…
At a doctrinal level, the fact that marriage is a gender factory may be constitutionally irrelevant. After all, those who believe that marriage is and should be gendered appear to believe in ‘the very stereotype the law condemns.’ What makes the gendered story relevant to legal discussions of SSM is its accurate reflection of the current state of heterosexual marriage and its ability to explain why and how marriage may be so important to people.…
[p. 5] Indeed, in both the employment and the marital context, the more pronounced the gender roles and traits, the more the law feels compelled to accommodate them.…
If enough people believe in or somehow know the gendered story of marriage to be true, equality arguments for SSM, whether rooted in gender or racial analogies, prove difficult.… To paraphrase Gertrude Stein, SSM advocates must tell a story of marriage that suggests there is a ‘there there’ after one takes the gender out of marriage.…
If we are to have state-sponsored marriage that includes same-sex couples, we need a story of marriage that explains what marriage is after the gender is gone.
To date, there have been three main stories told by SSM advocates about what marriage is and why gays and lesbians should be entitled to it. In the first story, marriage is a bundle of rights and obligations pertaining to how each member of the couple must treat each other and how outsiders must treat the couple. These rights and obligations usually include, inter alia, the right to receive a portion of a spouse’s estate if she dies intestate, the right to bring a wrongful death action, the right to access spousal health, disability and accident insurance plans, the right to [p. 6] assert evidentiary privileges, the right to hospital visitation and other incidents relevant to medical treatment of a family member, and the entitlements and responsibilities pertaining to spousal maintenance and marital property at separation.…
This narrative of marriage suggests that states create and sanction marriage because they benefit from it. It is a narrative that is particularly susceptible to equality arguments for SSM because opponents of SSM have difficulty explaining why gay and lesbian couples need to be denied the concrete benefits of marriage, or how the state could possibly be hurt by providing these stabilizing benefits to gay and lesbian couples.
The problem with this story of marriage is that while it often forces the state to provide all of the legal rights and obligations of marriage, it does not compel the state to provide the symbolic benefits of marriage. Thus, the Supreme Courts of Vermont and New Jersey found that gays and lesbians were entitled to Civil Union status, but not marital status. If the bundle of rights and obligations that accompanies marital status is what marriage is, then gays and lesbians are treated equally once they become entitled to that bundle of rights and obligations. The term ‘marriage’ is a peripheral issue in the first narrative of marriage because the first narrative of marriage defines marriage as the legal rights and obligations that accompany it, not the symbolism in the term itself.
The second story of marriage is the one that has been told most prominently by the U.S. Supreme Court, and it focuses much less on the concrete benefits of marriage and much more on the symbolic benefits of marriage—most particularly, its emotional and expressive benefits. Although not precisely clear about why or when this right exists, the Court has ruled that states cannot deny the right to marry [p. 7] to poor people or to prisoners.… Thus, marriage can be both ‘the most important relation in life’ and ‘the foundation of society.’…
[p. 8] The first story sees marriage as a legal construct, a state-created bundle of rights and obligations. The second story sees marriage as an institution—like religion, perhaps—that serves human interests and values and with which the state should not interfere.…
[p. 9] A third story of marriage was told by the California Supreme Court in the In re Marriage Cases. This story understands marriage to be a state-conferred title, a blessing of sorts, pursuant to which a couple secures status from the state.… The personal well-being that comes from marriage comes in part from the respect and dignity that is afforded marital status.…
In California, when the Court decided In re Marriage Cases, the legislature had already provided gays and lesbians with the full panoply of rights and obligations that marriage brings (story #1). Domestic Partnership (as it was called in California) was not enough, the court said, because Domestic Partnership did not command the same respect and dignity as marriage.…
[p. 11] By focusing on the 1998 statute, not the historical and almost universal understanding of marriage as between a man and a woman, it was easier for the Iowa court to say that an opposite-sex requirement was discrimination against gays and lesbians.…
[p. 12] Critics of SSM have their own stories of marriage. The first of these stories has to do with marriage as a procreative institution. This story of marriage has probably received the most attention,55 but it is also, I will suggest, the weakest. The second story has to do with marriage as an institution for child-rearing. The third story has to do with marriage as an institution for gender reification.…
[p. 13] Regardless of one’s view on the superiority of married heterosexual intercourse, any student of literature or history is well aware that marriage has never been particularly good at policing sexuality.… If marriage’s primary purpose had been to restrict sexual activity to marriage, marriage would have broken down as an institution. It simply is not up to the defined task.…
What marriage has been much better at is providing an institution for childrearing. Marriage is not about making babies (Story #4), but about taking care of them. This is the fifth story of marriage—marriage as an institution designed to ensure optimal child-rearing.…
[p. 14] The problem with this narrative of marriage, for opponents of SSM, is that gays and lesbians can rear children within marriage too. Indeed, the reason that many gays and lesbians want to get married is because they want to raise children.…
There are no reliable studies suggesting that bigendered role modeling really matters; nor are there studies proving that it does not matter, and many people think that a parent of each gender is good for children.…
[p. 18] This leads us then to the sixth marriage narrative, marriage as a promoter and producer of gender roles. This story of marriage will probably be jarring to some. Perhaps because it can be so jarring, courts have not engaged it significantly, except to dismiss it categorically and without discussion.…” (Katharine K. Baker, “The Stories of Marriage,” Journal of Law & Family Studies 12:1-55, January 1, 2010)
1687:
“Perhaps the public has reached a turning point.
A CNN poll this month found that a narrow majority of Americans supported same-sex marriage — the first poll to find majority support. Other poll results did not go that far, but still, on average, showed that support for gay marriage had risen to 45 percent or more (with the rest either opposed or undecided).
That’s a big change from 1996, when Congress passed the Defense of Marriage Act. At that time, only 25 percent of Americans said that gay and lesbian couples should have the right to marry, according to an average of national polls.…
And support for same-sex marriage has increased in all states, even in relatively conservative places like Wyoming and Kentucky. Only Utah is still below where national support stood in 1996.…” (Andrew Gelman, Jeffrey Lax and Justin Phillips, “Over Time, a Gay Marriage Groundswell,” New York Times, August 21, 2010)
2418:
“Utah remains dead last in support for gay and lesbian marriage, but it still trending upwards, according to a CNN poll and research by three professors of political science for the New York Times.
According to the research, support for same-sex marriage is up in Utah from 12 percent in 1994-1996 to 22 percent in 2010.…” (“Utah Dead Last in Support for Same-sex Marriage,” Q Salt Lake, August 23, 2010)
1151:
“[p. 740] Public attitudes towards LGBT people and same-sex marriage have changed significantly since Baehr v. Lewin in 1993. According to a Gallup poll, between 1996—when DOMA was passed—and 2010, the proportion of Americans who supported same-sex marriage increased from twenty-seven percent to forty-four percent. The Pew Research Center reported that in 2010, for the first time in polling history, fewer than half of those polled opposed same-sex marriage (forty-eight percent opposed and forty-two percent supported). People born after 1980 favor allowing gays and lesbians to marry legally by a fifty-three percent to thirty-nine percent margin, while those born before 1945 continue to oppose same-sex marriage, fifty-nine percent to twenty-nine percent.
An analysis of a 2010 CNN poll found that a narrow majority of Americans support same-sex marriage; this is the first poll to find majority support. According to research by political science professors Andrew Gelman, Jeffrey Lax, and Justin Phillips of the Columbia University Department of Political Science, same-sex marriage did not have majority support in any state as recently as 2004. By 2008, the majority in three states supported marriage equality, and by 2011, seventeen states had crossed the fifty percent line.
The results of the two ballot measures in California defining marriage as heterosexual are instructive. In 2000, California voters approved Proposition 22, which statutorily defined marriage as between a man and a woman, by a sixty-one percent to thirty-nine percent margin. In 2008, California voters approved Proposition 8, the constitutional ban on same-sex marriage, by only a fifty-two percent to forty-eight percent margin. When Proposition 8 was approved, a majority of people opposed same-sex marriage, while in 2011 a majority support it. A similar shift occurred in Maine, where same-sex marriage legislation was repealed by referenda in 2009.…
[p. 753] On May 9, 2012, President Obama became the first U.S. president to declare that same-sex marriage should be legal, something that would have been unimaginable in 1993.” (Michael D. Sant’Ambrogio and Sylvia A. Law, “Baehr v. Lewin and the Long Road to Marriage Equality,” University of Hawaii Law Review 33:705-53, 2011)
2908:
“The results of recently published research studies confirm the conclusion that lesbian and gay couples are successful parents; in various measures of psychological and social adjustment, the development of children raised in these households is equal to or sometimes better than that of children raised by heterosexual parents.…
Importantly, they note that ‘…for every finding of significant differences in studies of same- and different-sex coparent families, there were roughly four or more findings of no significant differences…’
The Results Section of this review makes for very interesting reading, but we will cite here only the final conclusions. 1) ‘Compared to all other family forms, families headed by (at least) two committed, compatible parents are generally best for children.’ 2) ‘When there is a gender difference in parenting skills, women tend to be better than men. [However] Gay male-parent families remain
under researched…’ 3) ‘Lesbian coparents seem to outperform comparable married heterosexual, biological parents on several measures, even while being denied the substantial privileges of marriage.’ 4) ‘Married heterosexual fathers typically score lowest on parental involvement and skills…’” (William Bradshaw, Reunion: The Family Fellowship Newsletter, Sumer 2011)
1713:
“A conservative’s fear about gay marriage is that it will destroy the institution of marriage. Generally this fear revolves around apocalyptic visions of what happened in Sodom or just a general sense that a formula that has existed for centuries should not be tampered with. As James Dobson of Focus on the Family has argued:
The legalization of homosexual marriage will quickly destroy the traditional family. … When the State sanctions homosexual relationships and gives them its blessing, the younger generation becomes confused about sexual identity and quickly loses its understanding of lifelong commitments, emotional bonding, sexual purity, the role of children in a family, and from a spiritual perspective, the ‘sanctity’ of marriage.
Or as Maggie Gallagher of the National Organization for Marriage said ominously: ‘When the government endorses a lie about human nature, there will be consequences.’
Will there be consequences? After all, the United States has always been an unusually marriage-happy nation, much more so than in Europe, where couples are much more likely to shack up and have children and drift into retirement together without ever having made it official. Could it be that gay marriage will tip us in that libertine Swedish direction? Might young heterosexuals decide that if any old person can get hitched these days, why bother with it at all?
Well, even a culture war can benefit from a little data. Several governments in the United States have already endorsed this so-called lie about human nature, and by tracking what happened to marriage and divorce rates in the subsequent years, you can start to see whether Gallagher’s assertion has any truth to it.
Start with Massachusetts, which endorsed gay marriage in May 2004. That year, the state saw a 16 percent increase in marriage. The reason is, obviously, that gay couples who had been waiting for years to get married were finally able to tie the knot. In the years that followed, the marriage rate normalized but remained higher than it was in the years preceding the legalization. So all in all, there’s no reason to worry that gay marriage is destroying marriage in Massachusetts.
The other four states that have legalized gay marriage—New York, Connecticut, Iowa, Vermont, and New Hampshire—have done it more recently, somewhere between 2008 and 2011. But from the little data we have, it looks as if the pattern will be more or less the same—a temporary jump in marriage followed by a return to virtually the same marriage rates as before gay marriage became legal.…
Another measure of the health of marriage is a state’s divorce rate. Have those changed since gay marriage was introduced? Not really. In each of the five states, divorce rates following legalization have been lower on average than the years preceding it, even as the national divorce rate grew.…
One might argue that these short-term trends are not all that meaningful, that over time the citizens of the states that embrace gay marriage will become infected with an indifference and even hostility to the institution. But in fact the deep underlying trends point in the opposite direction. When it comes to marriage, the coastal, college-educated Obama-loving elites—in other words, the people most likely to support gay marriage and to live in states that condone it—and the less educated social conservatives to whom the notion remains repulsive and apocalyptical have switched places in the last generation…
Since the ’70s, the college-educated have become far more likely than anyone else to rate their marriages ‘happy’ or ‘very happy’ and less than half as likely to get divorced; out-of-wedlock births are virtually unheard of among them. Among the majority of Americans without a college degree, the opposite trends are taking hold—soaring rates of single motherhood and a plummeting marriage rate, especially among the young.…” (Chris Kirk and Hanna Rosin, “Does Gay Marriage Destroy Marriage?” Slate.com, May 23, 2012)
2536:
“When World War II came to a conclusion in the summer of 1945, homosexuals returned home with the knowledge they were neither unique nor alone.…” (Ben Williams, “Gay expression and oppression in Salt Lake City: The beginning,” Q Salt Lake, August 25, 2012)
1412:
“It wasn’t so long ago that a handful of Vermont legislators in a shabby Statehouse committee room struggled over what to call their proposal to give marriage-like rights to the state’s gay and lesbian residents.…
Eventually, on a February day in 2000, they settled on ‘civil unions.’
It seemed radical at the time, and tore the state apart so wretchedly and publicly that historians were hard-pressed to come up with a parallel. Imagine the recent Wisconsin union wars, only injected with sex and religion.
But the Legislature in Montpelier approved An Act Relating to Civil Unions, and Dean quietly signed it later that spring, making it the first law in the nation to extend marriage-like rights of any kind to gay and lesbian couples.…
Civil unions ‘went quickly from being the most cutting-edge thing to be attacked,’ Lippert says, ‘to being the conservative alternative to marriage equality.’…
As the nine U.S. Supreme Court justices prepare to consider the cases, it’s worth recalling the early, but not long ago, role Vermont played and the price it paid in the historic metamorphosis of the issue.
Late in December 1999, Vermont’s high court justices decided that two lesbian couples and one gay couple were correct in arguing that state law confining marriage to heterosexuals was discriminatory.
Fix it now, the court told the Legislature, either by extending full marriage rights and benefits to all or by creating a parallel status that would essentially do the same.…
At hearings, anti-civil union activists denounced gays and lesbians as abominations, people who were sure to experience the wrath of God. They warned that approving civil unions would destabilize ‘traditional’ marriage’ and allow outsiders with a ‘homosexual agenda’ to propel the state down an immoral path of no return.…” (Liz Halloran, “How Vermont’s ‘Civil’ War Fueled The Gay Marriage Movement,” NPR.org, March 23, 2013)
1400:
“A September poll this year found that 85% of Massachusetts voters saw a positive or little to no impact from gay marriages in the commonwealth. In the poll, voters in the state support legalizing gay marriage 60% to 29%. Nationally, support for marriage equality has almost doubled since 1996 when a Gallup poll found 27% of Americans thought same-sex marriage should be legal. In 2013, that figure jumped up to 53%.…
Opponents of gay marriage – including Mitt Romney – attempted to reverse the ruling. Ten months into his term as governor, Romney sought a state constitutional amendment to overturn the ruling.
‘With more same-sex marriages, you saw more people changing their minds,’ Mary Bonauto, the lead attorney in the lawsuit which struck down the ban, told the AP. ’Seeing gay people with their extended families, seeing the commitment, that’s what has turned this around.’…
‘Massachusetts has seen, despite the consternation expressed by some at the time, that the institution of marriage has only been strengthened since we embraced equality,’ the op-ed said.…” (Clare Kim, “10 years after legalization in Massachusetts, marriage equality expands,” MSNBC.com, November 18, 2013)
2175:
“The Utah ruling comes a day after New Mexico’s Supreme Court legalized same-sex marriage, by ruling that it is unconstitutional to deny a marriage license to gay and lesbian couples.…” (“Federal judge backs same-sex marriages in Utah,” Los Angeles Times, December 20, 2013)
2773:
“Half of all Americans believe that gay men and lesbians have a constitutional right to marry, according to a new Washington Post-ABC News poll in which a large majority also said businesses should not be able to deny serving gays for religious reasons.…
Beyond the constitutional questions, a record-high 59 percent say they support same-sex marriage, while 34 percent are opposed, the widest margin tracked in Post-ABC polling.…
Support for same-sex marriage has changed more rapidly than almost any social issue in the past decade. In a Post-ABC poll in March 2004, 38 percent said same-sex marriage should be legal, while 59 percent said it should not, the same percentage now in favor of allowing gays to marry.…
Nearly eight in 10 say that gays can parent as well as straight people, up from just below six in 10 in a 1996 Newsweek survey.
Sixty-one percent support allowing gays to adopt a child, up from 49 percent in 2006 and 29 percent in a 1992 poll by Time magazine and CNN.…” (Peyton M. Craighill and Scott Clement, “Support for same-sex marriage hits new high; half say Constitution guarantees right,” Washington Post, March 5, 2014)
4124:
“I’ve talked to a lot of people about the issue of same-sex marriage. Those who support it support it because they want to help provide a moral framework for same-sex couples. I’m old enough to remember when things were very, very different in the gay community. I think that we’re seeing a growing concern among LGBT people that, you know, we want the kind of joy in our lives that comes from having committed, loving, caring, stable relationships. To me, that seems like an increase in morality—not a decrease. We see that support for same-sex marriage is rising dramatically in Utah, as it is throughout the country. I think that if you ask most people why they support same sex marriage, they’ll say it’s for those reasons. So Greg, if we’re going to look at the data, the data would seem to link growing acceptance of same-sex marriage with a growing desire for applying the same moral standards to everybody—which I think is a good thing, in terms of public morality.…” (John Gustav-Wrathall, “Transcription of April 2014 Affirmation Post-General Conference Discussion,” www.affirmation.org, April 2014)
1165:
A Dan Jones Poll from August 2014 showed that 8% of Utahns 65 and over favored gay marriage, while 51% of Utahns 25 and under favored it. (Jim Dabakis to GAP, August 19, 2014)
1607:
“What a difference a decade makes! In 2004 alone, a dozen states passed constitutional amendments banning same-sex marriage; eight went so far as to ban all legal recognition of same-sex couples. The future looked bleak.…
Since the court’s holding in Windsor, more than 40 federal and state courts around the country have relied on its sound reasoning almost unanimously to strike down state bans on same-sex marriage.
Among other things, they have rejected the absurd, baseless arguments that same-sex marriage harms children or undermines heterosexual marriage. In his opinion for the Seventh Circuit Court of Appeals, Judge Richard Posner wrote, ‘The only rationale that the states put forth with any conviction — that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended — is so full of holes that it cannot be taken seriously.’
It has been astonishing and moving to see the unprecedented speed with which the public and the judiciary have come around on the issue. A majority of Americans now support the right of same-sex couples to marry, compared with about a quarter in 1996. Among those under 30, support is at nearly 80 percent.…” (Editorial Board, “One Step Closer to Marriage Equality,” New York Times, October 6, 2014)
2655:
“‘I [Nikki Boyer] was one of the people saying, ‘Shut up! This is not the issue to push for. Start with anti-discrimination laws,’‘ she says.
But things changed. Her partner of more than 20 years, Ann Hart, died three years ago. A medical examiner would not release Hart’s body to Boyer for a funeral ‘because I wasn’t family.’ Hart’s mother, in her 90s, had to sign a waiver from her nursing home to give Boyer custody. Meanwhile, marriage was happening in other states. It was real. The institution, so long a pie in the sky, was changing attitudes.…” (Erin Alberty, “Longtime Utah LGBT advocates recount brutal history,” Salt Lake Tribune, October 8, 2014)
2855:
“A new poll shows a majority of Utahns oppose same-sex marriage, but support is rising.
Results of a UtahPolicy.com poll conducted Oct. 14-16 by Dan Jones and Associates shows 61 percent of Utahns oppose same-sex marriage, which became legal this month due to the U.S. Supreme Court’s refusal to hear appeals from several states whose same-sex marriage bans were struck down in lower courts.
That is down slightly from the 63 percent who said they opposed same-sex marriage in a similar poll in August.
Meanwhile, 37 percent of 405 respondents queried after gay marriage was legalized Oct. 6 said they are supportive, up from 29 percent in August.…” (Erin Alberty, “Poll: Most Utahns against same-sex marriage, but opposition declining,” Salt Lake Tribune, October 20, 2014)
2576:
States in which gay marriage was legal:
2003: 0
2004: 1
2008: 2
2009: 4
2010: 6 (includes DC)
2011: 7
2012: 9
2013: 17
2014: 36
2015: 37 (through March 2015)
(Haeyoun Park, “Gay Marriage State by State: A Trickle Became a Torrent,” New York Times, March 30, 2015)
2912:
“In a nationwide USA Today/Suffolk University Poll, those surveyed say by 51 percent-35 percent that it’s no longer practical for the Supreme Court to ban same-sex marriages because so many states have legalized them.
One reason for a transformation in public views on the issue: Close to half say they have a gay or lesbian family member or close friend who is married to someone of the same sex.…
As more states allow same-sex marriage, disputes have grown over whether individuals and businesses should have the right to refuse to provide services for a gay wedding if they have religious objections.
By almost 2-1, 58 percent-31 percent, those surveyed say they shouldn’t. Indeed, more than a third of those who oppose gay marriage also oppose a law that would allow people to cite religious reasons for refusing, say, to provide flowers or catering for a same-sex couple.…” (Susan Page, “Poll: Americans say there’s no turning back on gay marriage,” Salt Lake Tribune, April 22, 2015)
2775:
“A new Washington Post/ABC News poll finds that an astonishing 61 percent of Americans support allowing gays and lesbians to legally marry; only 35 percent oppose it. That’s a record high in Post polling.…” (Greg Sargent, “Morning Plum: Even many conservatives seem ready for Constitutional right to gay marriage,” Washington Post, April 23, 2015)
2857:
“Same-sex marriage is so last decade in Massachusetts. These days, the earliest pioneers in gay and lesbian matrimony are demonstrating how to raise kids, retire—even divorce.…
The Nortonsmiths and their 12 co-plaintiffs celebrated their 11th wedding anniversaries Sunday, the date on which the Massachusetts Supreme Judicial Court allowed gays and lesbians to wed in 2004.…
Their experiences—in daily living as well as legal wrangling—provide some object lessons as the Supreme Court decides whether to take same-sex marriage nationwide.…
(Richard Wolf, “New normal: Lessons from Massachusetts on gay marriage – and divorce,” Salt Lake Tribune, May 24, 2015)
2979:
“A 57% majority of Americans now favor allowing same-sex marriage and 39% oppose. As recently as five years ago, more opposed (48%) same-sex marriage than supported it (42%).…
The new survey finds that nearly nine-in-ten Americans (88%) know someone who is gay or lesbian, with 28% saying they know ‘a lot’ of gays or lesbians. These percentages are little changed from two years ago, but in 1993 a smaller majority (61%) said they knew someone who is gay.
Today, about three-quarters (73%) of those who say they personally know a lot of gays and lesbians favor same-sex marriage. A majority (59%) of those who know no gays or lesbians oppose same-sex marriage.…” (“Support for Same-Sex Marriage at Record High, but Key Segments Remain Opposed,” Pew Research Center, June 8, 2015)
2828:
“New England: Seeds of a new revolution
The movement was still in its early stages. People were being fired from their jobs for coming out. People were dying of AIDS. The Supreme Court in 1986 had affirmed that states were free to categorize homosexual sodomy as a criminal act.…
In 1983, Wolfson had written his thesis at Harvard Law School on the notion that gay couples should be allowed to marry. It was seen as so far-fetched that he had trouble finding a faculty adviser.
‘My argument was that the denial of marriage is at the heart of anti-gay discrimination in a way that it was at the heart of racial discrimination: You must be kept apart,’ Wolfson said in a recent interview.
Some activists believed that since Hawaii had shown a path for winning, the right strategy was to file lawsuits all across the country.
‘I didn’t feel that way at all,’ said lawyer Mary Bonauto, who in 1990 went to work for the group Gay & Lesbian Advocates & Defenders (GLAD). ‘I felt like if we were going to file litigation, we had to be prepared to win.’
New England seemed to offer the best chances. Some states in that part of the country had anti-discrimination laws in place, and it would be difficult to amend the state constitutions to specifically outlaw same-sex marriage.
Bonauto and others filed suit in Vermont — and in 1999 won. The state’s supreme court directed the legislature to legalize marriage or provide for civil unions. The legislature opted for civil unions, becoming the first state to do so.
A more momentous decision came three years later, in the Massachusetts suit that Bonauto filed. The state’s Supreme Judicial Court ruled 4 to 3 that allowing only heterosexual couples to marry violated the state’s constitution. It later clarified its order to say that only marriage, not civil unions, would remedy the situation.
‘Separate is seldom, if ever, equal,’ the court said.…
But it seemed the victory would come with an enormous price. Then-Gov. Mitt Romney vowed a well-funded campaign to oust legislators who supported the decision. President George W. Bush called for an amendment to the U.S. Constitution banning same-sex marriage: ‘Our nation must defend the sanctity of marriage.’
Those specific efforts fizzled, but other states raced to amend their own constitutions to avoid becoming the next Massachusetts. And other state courts proved resistant to the legal arguments that swayed the justices there.
There were significant losses in the highest courts in Washington, Maryland and, notably, New York.
The court majority in New York handed opponents one of their most potent arguments. The state was justified in restricting marriage because ‘unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes.’ Gay couples, by contrast, ‘do not become parents as the result of accident or impulse,’ so marriage is not needed.
The political process was unavailing. The legal strategy was faltering. It would be another four years before any other state joined Massachusetts in allowing gay couples to wed.…” (Robert Barnes, “Decades of battles converged for momentous decision: From Hawaii to White House, gays’ right to marry seemed far from inevitable,” Washington Post, June 27, 2015)
4441:
[xi] “A ruling by the Hawaii supreme court in 1993 that strongly implied that same-sex couples had a right to marry unleashed a powerful political backlash across the country. Within a decade, more than thirty-five states and Congress passed laws to ‘defend’ traditional marriage.
In 1999, the Vermont supreme court ruled that same-sex couples were entitled to all the legal rights and benefits of marriage, if not the formal title. Then, in 2003, the Massachusetts supreme court became the first in the nation to squarely rule that gay marriage was constitutionally protected.
These rulings also generated political backlashes. Civil unions fast became the dominant political issue in Vermont in 2000, and many legislators who had voted in favor of them lost their jobs. After the Massachusetts ruling, more than twenty-five states passed constitutional amendments banning gay marriage, and the issue figured prominently in the 2004 elections, possibly even altering the outcome of that year’s presidential contest. In 2010, three justices on the Iowa supreme court were defeated in retention elections because they had ruled in favor of gay marriage the preceding year.
Gay marriage litigation may also have distracted attention from other items on the gay rights agenda, such as federal legislation forbidding employment discrimination based on sexual orientation. In addition, by situating other gay rights reforms against the backdrop of same-sex marriage, such litigation may have rendered them more controversial than they otherwise would have been.…
By enabling thousands of gay couples to marry, such decisions also put a public face on the issue, exposed millions of Americans to married same-sex couples, and enabled gay activists to refute predictions by conservatives of the deleterious consequences that gay marriage would produce. By causing other forms of legal recognition of same-sex couples such as civil unions to seem less radical by comparison, judicial rulings in favor of gay marriage also increased public support for compromise positions.”
(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))
4441:
[20] “Gay marriage commanded so little support in the 1970s the pollsters did not serve a public opinion on the issue. The ACLU did not formally endorse gay marriage until 1986.
Recognizing how deeply rooted opposition to gay marriage was, opponents of the Equal Rights Amendment (ERA) argued that by abolishing all sex classifications, the ERA would necessarily legalize gay marriage.”
(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))
4441:
[21] “Coupled with the gay marriage lawsuits in the early 1970s, episodes such as this prompted state legislatures to take action. Gay activists in California argued that the state’s repeal of its anti-sodomy law in 1975, combined with its feminist-inspired rewriting of its marriage law in 1971 to make it gender neutral—replacing ‘man and wife’ with ‘persons’—legalized gay marriage in the state. In 1977, the legislature amended state marriage law to clarify that only a man and a woman could marry. State senator John Briggs explained that ‘the bill would [22] restore some sense of morality to the state,’ and the legislature passed it by an overwhelming margin after little debate. Between 1973 and 1978, about 15 other states likewise amended their laws to reaffirm the traditional definition of marriage.
Despite these occasional efforts, most gay activist in the early 1970s were not much interested in marriage. 1971, one activist wrote a detailed position paper for the ACLU in Washington State calling for the abolition of marriage ‘to protect individual freedom and the happiness which depends on it.’ Lesbian feminist tended to want no part of marriage, which they regarded as an oppressive institution, given the traditional rules that defined it, such as coverture and immunity from rape. An early gay manifesto denounced traditional marriage as a ‘rotten, oppressive institution’ that is ‘fraught with role-playing.’
Sex radicals tended to object to traditional marriages insistence on monogamy. To them, gay liberation meant sexual liberation. Much of the early gay press urged men to overcome their sexual shame and experiment with multiple partners. The queer politics of the 1970s embraced slogans such as ‘Smash the Nuclear Family’ and ‘Smash Monogamy.’ Marriage did not comfortably fit into that picture.”
(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))
4441:
[45] “Opinion polls conducted around 1990 showed support for gay marriage between 11% and 23%.”
(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))
4441:
[48] “In 1989, Tom Stoddard, Executive Director of Lambda Legal, stated, ‘As far as I can tell, no gay organization of any size, local or national, has yet declared the right to marry as one of its goals.’ Most gay activist evinced little interest in pursuing a right to marry. Polls showed much greater concern among gays and lesbians for securing equal rights in employment, housing, and health care.…
In 1991, the NGLTF [National Gay and Lesbian Task Force] asked its members to rank gay rights issues in terms of importance.… The NGLTF did not even bother to ask its members how they felt about gay marriage. When the third annual Creating Change Conference, the most significant political gathering of gay people in the country, took place in 1990, the agenda included repeal of sodomy laws, civil rights protections, hate crime reporting, and domestic partnership benefits, but not a word about gay marriage.…
[49] Many gay activists at the time wanted nothing to do with marriage. Some lesbian feminists noted that marriage had long been ‘the focus of radical-feminist revulsion’ because it was part of ‘a patriarchal system that looks to ownership, property, and dominance of men over women as its basis.’…
These gays did not want the right to be treated the same as straights; they were different and wanted to be treated as such. They also worried that enabling gays to marry would inevitably stigmatize those who chose not to do so.…
As a practical matter, marriage would confer significant legal benefits— joint tax filing status, Social Security survivors’ benefits, and spousal immunity in court testimony, to name just a few. Many of these benefits could not be duplicated outside of marriage.
More important, pro-marriage activists argued that because marriage was the centerpiece of society’s social structure, no other political issue more ‘fully tests the dedication of people who are not gay to full equality for gay people.’ Same-sex relationships would ‘continue to be accorded a subsidiary status until the day that gay couples have exactly the same rights as their heterosexual counterparts.…
The AIDS epidemic had highlighted how vulnerable gay and lesbian partnerships were. By 1988, 46,000 people had died of AIDS, two thirds of them gay men. The median age of the deceased was 36, not typically an age at which most people are focused on end-of-life planning. Yet now an entire generation of gays had to contemplate hospital visitation, surrogate medical decision making, and estate planning.…
[51] An earlier generation of gays and lesbians, in denial of their homosexuality, had entered opposite sex marriages and had children. Upon divorce, they frequently had trouble maintaining custody or even securing visitation rights, particularly if they were now open about their homosexuality.
By the early 1980s, with the advent of reproductive technology, a younger generation of lesbians were creating their own baby boom.…
By the early 1990s, opinion polls showed growing public support for the right of gays and lesbians to adopt children. In turn, once same-sex couples were permitted to adopt children, explaining why those couples should not be permitted to marry became much harder.…
[52] Falling birth rates and the rise in the average age at which people married— especially for the second or third time— weakened the connection between marriage and procreation. Moreover, one third or more of all children were now being born outside of marriage, further severing that linkage. As marriage became less about childbearing, it became more about mutual commitment and nurturing happiness— objectives that same-sex couples could pursue as easily as opposite-sex ones.
Moreover, as traditional gender norms in society have evolved and more women have assumed jobs outside the home, marriage has become less about the gender roles of husbands and wives and more about equal partnerships. For patriarchal religious fundamentalists, one reason that same-sex marriage has proved so threatening is that it further destabilizes traditional gender roles. By contrast, those who hold more progressive gender views have found gay marriage easier to accept.”
(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))
4441:
[58] “In January 1996, San Francisco’s Board of Supervisors passed an ordinance allowing the county clerk’s office to perform same-sex wedding ceremonies for couples who registered as domestic partners. These ‘marriages’ had no legal significance but were intended simply to confer public legitimacy upon same-sex relationships. On March 26, 1996, 165 same-sex couples publicly celebrating their domestic partnerships in a ceremony presided over by Mayor Willie Brown— the first event of its kind in the nation. Organizers portrayed these weddings as the first step toward the goal of full-fledged gay marriage.
In June in New York City, openly Gay city councilmember Tom Duane presided over a similar mass ‘wedding’ ceremony involving two dozen gay and lesbian couples in Bryant Park. With Hawaii courts widely expected to legalize gay marriage later that year, mass gay weddings only added fuel to a growing national fire.…
[59] One poll conducted that spring showed that 68% of Americans opposed to gay marriage.…
For Republicans, Gay marriage was a dream issue: it both mobilized their base of religious conservatives and align them with most swing voters. In the spring of 1996, Republicans introduced so-called defense-of-marriage bills in 34 state legislatures. Supporters emphasized that the developments in Hawaii made such measures necessary.…
Some of the few Democrats who embraced gay marriage paid a heavy price at the polls.…
In a few states, such as California and Nebraska, Democrats were able to block enactment of defense-of-marriage laws, only to have opponents successfully pursue popular initiatives that amended state constitutions to bar gay marriage. By 2001, 35 states have enacted defense-of-marriage laws or amendments.
As gay marriage acquired a higher profile, in some jurisdictions it became more difficult to enact domestic partnership benefits. In 1994, Republican governor Pete Wilson of California vetoed a domestic partnership bill that had passed the legislature and would have provided very limited rights such as hospital visitation to same-sex couples. Wilson objected to what he called a foot in the door for same-sex marriage. ‘We need to strengthen, not weaken, the institution of marriage,’ the governor declared.…”
(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))
4441:
[69] Romer was a narrow decision with limited implications— most definitely not the ‘Roe v. Wade for gays and lesbians,’ as Jay Sekulow of the American Center for Law and Justice rightly observed. Instead, Romer simply suppressed an outlier: no other state had passed an amendment like the one in Colorado.…
[70] Romer was perhaps more notable for other reasons. First, it was the high court’s first defense of the civil rights of gay Americans.… Second, Romer rejected moral disapproval of homosexuality as a sufficient justification for discrimination against gays.…
Still, the reasoning of the opinion fell far short of banning all forms of legal discrimination based on sexual orientation, such as in the context of military service and marriage.
Despite the fierce political backlash ignited against gay marriage in the 1990s by the Baehr litigation, gay rights in general continued to make significant progress. The percentage of Americans who thought homosexual sex was ‘always wrong’ remained consistently high through the 1970s and 1980s— between 70% and 80%— but then declined sharply throughout the 1990s, falling below 60% by decade’s end.…”
(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))
4441:
[70] In 1977, only 13% of respondents believed that homosexuality was innate, and an additional 3% attributed it to a combination of genes and environment. By 2002, 40% thought homosexuality was genetic, and an additional 12% thought it was attributable to a combination of genes and environment.
Once sexual orientation is seen as immutable, it becomes more difficult to justify discrimination against homosexuals as a necessary deterrent to immoral choices. Moreover, if sexual orientation is innate, parents need not worry about their children being proselytized into it— a conventional stereotype used to justify anti-gay discrimination. Changing views about the immutability of homosexuality probably help to explain the increase in support for the right of homosexuals to teach in public schools from 27% in 1977 255% in 1996.…
[71] By 1998, Parents, Families and Friends of Lesbians and Gays, founded in 1973 by 20 parents of gay children in Greenwich Village, had grown to 500 chapters across the nation with 80,000 members.…
Bill Clinton was the first American president to appoint openly gay officials to his administration— more than 150 of them.…
[72] The percentage of Americans believing that gays should be legally permitted to adopt children rose from 14% in 1977 to 29% in 1992 to almost 15% in 2000.…
Changes in the law of adoption would prove significant in the longer term for gay marriage once same-sex couples were permitted to adopt children, the argument for not allowing them to marry grew weaker.…
In 1992, not a single Fortune 500 corporation extended benefits to the partners of gay employees. By 2000, well over 100 of them did so.…
[73] the percentage of Americans reporting someone in their family who was gay jumped from 9% in 1992 the 23% in 2000. One poll showed that the percentage of Americans who reported knowing someone who was gay increased from 25% in 1985 to 74% in 2000.…
[74] Finally, although the 1990s had seen a massive political backlash against gay marriage at both the state and federal levels, underlying support for it continued to grow. Polls from the late 1980s showed support for gay marriage ranging from 11% 23%. By the late 1990s, polls revealed support ranging from 29% to 35% the Pew Research Center found an increase in support for gay marriage of eight percentage points between 1996 and 2001. Gallup found an increase of seven percentage points between 1996 and 2000.”
(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))
4441:
[75] “Vermont was an attractive venue for gay marriage litigation for another reason: it’s Constitution is harder to amend than that of Alaska and Hawaii. Amendments require approval by the legislature in two successive sessions plus a subsequent referendum. Thus, overturning a court decision can take years.
After Baehr, a coalition of gay rights organizations in Vermont created a committee, the Freedom to Marry Task Force, to prepare the groundwork for a gay marriage lawsuit. According to one of the co-founding lawyers, the Hawaii Supreme Court decision had ‘showed us for the first time that we could win these cases.’ Yet the backlash from that decision had taught them that a litigation victory without public support to back it up was worth very little. Thus, the first aim of the task force was to educate Vermonters about gay and lesbian couples.…
[76] By 1997, Vermont Freedom to Marry was ready. Three same-sex couples that it had recruited requested marriage licenses, which court clerks denied to them. They then filed suit— solely under the state constitution— objecting to the traditional definition of marriage as a sex classification and an abridgment of their fundamental rights.…
The plaintiffs’ lawyers had expected to win in the state Supreme Court, and on December 20, 1999, they did. In State v. Baker, the court unanimously invalidated the state’s exclusion of same-sex couples from marriage under the state constitutional provision guaranteeing ‘the common benefit, protection, and security of the people.’
One of the five justices would have required the state to immediately begin issuing licenses to same sex couples. The other four, however, accepted [77] the state’s argument that a sudden change in marriage law could prove destabilizing. They gave the legislature a ‘reasonable period of time’ to correct the discrimination inherent in denying same-sex couples the rights and benefits associated with marriage. They also gave the legislature the choice of amending the marriage law to include same-sex couples or creating a new institution for such couples that provided ‘the common benefits and protections that flow from marriage.’ In light of the recent gay marriage referenda in Hawaii and Alaska, these justices explained, to insist that Vermont extend marriage to same-sex couples was to ignore political reality and thus reduce the chances of effectuating the rights they sought to protect.…
Although Baker stopped short of mandating gay marriage, it went far beyond what any state had yet enacted. Domestic partnership legislation in California and Hawaii required that same-sex couples receive a few of the benefits of marriage, such as inheritance and hospital visitation rights. By contrast, the Vermont court seemed to suggest that gay couples should receive all of the rights and benefits of marriage.…
[78] Some Democratic lawmakers endorsed the marriage after the ruling. However, the Speaker of the house, a Democrat who previously had endorsed a marriage, quickly polled his colleagues and found little enthusiasm for it. A more viable alternative, he suggested, would be domestic partnerships. Initially, even some Republicans seemed open to that idea.…
Amid increased security, the house Judiciary Committee held hearings that lasted nearly a month.…
Supporters of gay marriage conceded they did not have the legislative votes to enact it. Instead, a House committee agreed on a system of domestic partnerships (ultimately relabeled ‘civil unions’) that provided same-sex couples the rights and obligations of marriage without the name. Even Republican committee members supported the measure. Governor Dean immediately endorsed it. The Baker plaintiffs announced that they would not challenge civil unions as inadequate.…
[79] On March 15, 2000, after eight hours of impassioned and uninterrupted debate, the House voted 76 to 69 to approve a bill to establish civil unions.…
In April, after what one commentator called ‘one of the most intensely personal, deeply emotional, soul bearing and heart wrenching debates ever held in the chamber,’ the Senate passed the civil unions bill by 19 to 11.… On April 26, Governor Dean signed the bill— behind closed doors and without fanfare, out of deference to the thousands of Vermonters who opposed any legal recognition of same-sex unions.…
The three same-sex couples who were plaintiffs in Baker dropped their lawsuit and declared themselves satisfied—for now— with civil unions. Their lawyer, Beth Robinson, explained, ‘given how far we’ve come in a short time, and given our desire to do this in a way that doesn’t divide the state, we were unanimous in our decision.’…”
(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))
4441:
[83] “In 2000, not a single jurisdiction in the world had enacted gay marriage.… Civil unions generated enormous political controversy in Vermont, but gay marriage would have produced even more. In 2000, only 15 to 20% of Vermonters favorite gay marriage. A ruling in its favor probably would’ve had cataclysmic political ramifications.…
Republican governor James Douglas, elected in 2002, refused to challenge the law, explaining that most Vermonters had come to accept it and that the state had benefited economically from it. Although civil unions for same-sex couples were enormously controversial in 2000, they quickly emerged as the fallback position for many opponents of gay marriage.…
[84] Four more states enacted defense-of-marriage laws or constitutional amendments in 2000. Advocates for these measures invoked developments in Vermont to justify them. Although some of these states were well on their way to enacting such measures before Baker, the Vermont ruling plainly inspired campaign organizers in some states to ban not just gay marriage but also other arrangements that offered same-sex couples some of the benefits of marriage.…”
(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))
4441:
[89] “Less than five months after Lawrence, the Massachusetts Supreme Court confirmed the worst fears of Justice Scalia and religious conservatives.…
[90] In November 2003, the Massachusetts Supreme Court ruled that the state constitution provision declaring that all persons are born ‘free and equal’ barred the state from excluding same-sex couples from marriage. Massachusetts thus became only the fifth jurisdiction in the world to allow gay marriage. The others— Ontario, British Columbia, Belgium, and the Netherlands— at all connected Gay marriage only within the last two years.…
[91] The state Senate quickly framed a civil unions bill and send it to the court for an advisory opinion on whether it satisfied Goodridge.
On February 3, 2004, the court replied that civil unions were insufficient because they would relegate gays and lesbians to ‘second-class citizen status.’…
[92] Even many gay rights enthusiast expressed shock that the court had not accepted civil unions as a compromise, as the Vermont court had done four years earlier.…
In anticipation of the constitutional convention to meet in February, both sides of the gay marriage debate commenced a statewide political campaign. In what one state senator called the ‘most intense outreach’ by the Catholic Church he had ever seen, the four Catholic bishops of Massachusetts sought to mobilize the states 3 million Catholics in support of a marriage amendment.…
[93] The court’s advisory opinion rejecting civil unions as inadequate was issued the week before the convention met, thus eliminating the compromise position toward which many legislators had seemed to be gravitating.…
A substantial majority of legislators— as many as 137 of the 199 who participated in the convention— wished to overturn Goodridge and constitutionally banning gay marriage. Yet this group could not agree on how to treat civil unions. The [94] first option came the closest to passing, falling just two votes shy of the 101 required to pass the amendment and send it on to the next year’s convention for a second vote. The third option— an amendment to bar gay marriage but require the legislature to recognize civil unions— then failed by 104 to 94. Many gay marriage supporters voted for it, fearing that something worse might pass, though they hoped to kill it in the end.
Yet another proposal, which would have defined marriage as the union of a man and a woman and provided that nothing in the amendment either required or prohibited civil unions, was also defeated by 103 to 94. Gay marriage supporters, who were perfectly content with the status quote of Goodridge, then filibustered the remainder of this two-day session of the convention.…
[95] Senate minority leader Brian Lees, another key supporter of the compromise amendment, now declared that the battle to overturn Goodridge was ‘pretty much over.’ Several lawmakers who had voted for the compromise amendment in March now stated privately that they might switch their positions. Thousands of gay couples had married since May without causing any significant disruptions, and the controversy over gay marriage have largely faded from public view.…
[97] By 2011, polls showed that Bay Staters supported gay marriage by 60% to 30%.”
(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))
4441:
[97] “Although Goodridge does not generate much political backlash in Massachusetts, it did across the rest of the country.…
National polls conducted in the months after Goodridge showed opponents of gay marriage outnumbering supporters by a margin of roughly 2 to 1.…
[98] In the five states that had conducted referenda on gay marriage between 1998 and 2002— Alaska, Hawaii, California, Nebraska, and Nevada (twice)— opposition had ranged from 61% to 70%. Not a single state likely would have approved gay marriage by referendum in 2004. Not a single state legislature had endorsed gay marriage yet, and only two had enacted civil unions— one of them (Vermont) acting pursuant to court order.…
Indeed, Goodridge may have caused a temporary resurgence in anti-gay sentiment generally.…
[98] On February 12 [2004], the recently elected mayor of San Francisco, Gavin Newsom, claiming to be upset about the president’s efforts to divide the nation over gay marriage, instructed city officials to begin issuing marriage licenses to same-sex couples. Newsom’s action was largely symbolic, as experts were certain that the state would not recognize such licenses. His action was also very popular in a city where public support for gay marriage ran strong.
Some gay activists were enthusiastic about opening a ‘Western front’ on gay marriage, while others feared the possibility of inciting a political backlash. Congressman Barney Frank telephoned Newsom to urge him to stop the marriages.…
[105] Meanwhile, more legally efficacious action against gay marriage was taking place in the states. Before Goodridge, only three states— Alaska, Nebraska, and Nevada— had adopted constitutional amendments barring gay marriage. Within five years of the Massachusetts courts decision, more than 25 additional states have enacted such measures.…
[106] In 2004 alone, 13 states past referenda barring same-sex marriage.…
Amendment backers insisted that Goodridge had forced their hand: statutory bans on gay marriage, which 39 states have enacted by 2004, were no longer sufficient. One sponsor of Missouri’s amendment explained, ‘as we’ve seen happen in Massachusetts, if the will of the people is not clearly spelled out in the Constitution, then all it takes is a few activist, renegade judges to circumvent [it].’ Rather than defending gay marriage on the merits, amendment opponents tended to object only to the principle of writing discrimination into constitutions.
The first gay marriage referendum in 2004 Took Pl. in Missouri in early August. Amid heavy voter turnout, more than 70% of Missouri voters supported the amendment, despite a campaign in which opponents vastly outspent proponents. The vice president of Focus on the Family rightly predicted that Missouri would be ‘the first of many dominoes to fall.’ In Mississippi, the marriage amendment 186% of the vote. Even states with relatively progressive records on gay rights, such as Michigan, Ohio, and Oregon, past marriage amendments by handy margins. In only two states that the amendment secure less than 60% of the vote.…
[108] None of the 13 states that enacted constitutional amendments barring gay marriage in 2004 actually permitted same-sex couples to marry at the time, so the referenda deprived nobody of marriage rights that already existed. However, these amendments did make it harder for those states to adopt gay marriage in the future, as legislatures would be powerless to act by statute. Either the state constitutions would have to be amended again or else courts would have to invalidate the state constitutional bands under the federal Constitution.
Moreover, nine of the 13 state marriage amendments adopted in 2004 contained language broad enough to be interpreted to forbid civil unions and even domestic partnership benefits for gay couples. In some of these states, domestic partnership benefits were already available to at least some gay and lesbian public employees. After the marriage amendments were enacted, those benefits had to cease.”
(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))
4441:
[113] “Most the activists were despondent on the morning November 3, 2004. Not only had President Bush been reelected, but the 11 states conducting referenda on gay marriage the previous day had unanimously rejected it— mostly by overwhelming margins. One commentator called this ‘as resounding a defeat as any social group is likely to experience in American politics.’
Gay activists hurriedly convened to discuss future strategy and tactics. Even strong supporters of gay marriage conceded that perhaps they had pressed the issue too far and too fast. An openly gay officeholder in California questioned ‘the strategic wisdom of pushing forward an issue the draws be him at opposition from nearly 2/3 of voters.’…
[114] Still, despite the backlash against gay marriage, the country had continued to become more progressive on gay rights issues generally. In 2004, Cincinnati residents voted to repeal the anti-gay-rights amendment they had added to their city charter 11 years earlier. Voters in North Carolina and Idaho elected their first openly gay state legislators, and in Dallas, Texas, they elected an open lesbian as sheriff.
The number of Americans who supported allowing gays and lesbians to serve openly in the military increased from 56% in 1992 to 81% in 2004. The number who favored expanding antidiscrimination laws to cover sexual orientation rose from 48% in 1988 to 75% in 2004. In 1992, only 27% of Americans thought that gay couples should be permitted to adopt children; that number had increased to 50% by 2004. The number of Americans who supported granting same-sex couples the legal rights and benefits of marriage increased from 23% in 1989 256% in 2004.”
(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))
4441:
[116] “For several years after the Goodridge-inspired backlash of 2004, not a single state high court followed the path chartered the Massachusetts justices.… The US Court of Appeals for the Eighth Circuit also rejected gay marriage under the federal Constitution. These courts refused to treat gay marriage is a fundamental right or sexual orientation as a suspect classification (either holding would have triggered the most rigorous standard of judicial scrutiny). Applying a more relaxed standard of judicial review instead, these courts held that laws excluding same-sex couples from marriage plausibly furthered government interest in linking procreation to marriage and providing an optimal environment for child rearing.”
(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))
4441:
[119] “Gay marriage suffered political and legal setbacks between 2004 and 2007, yet Americans continued to become more progressive in their attitudes toward gay rights. More and more religious denominations supported larger and larger chunks of the gay-rights agenda. By 2006, 263 Fortune 500 companies offered healthcare plans that included benefits for same-sex domestic partners.
The number of states providing healthcare benefits to the same-sex partners of public employees rose from zero in 1993 to 15 in 2008. The number of states authorizing additional punishment for hate crimes motivated by anti-gay animus increased from 11 in 1993 to 32 in 2008. The number of states with antidiscrimination laws covering sexual orientation rose from eight in 1993 to 20 in 2008…
Polls by the Pew Study Center showed that opponents of gay marriage outnumbered supporters by 29 percentage points in late 2004, 17 percentage points in 2007, and just 12 percentage points in 2008. A Gallup poll conducted in 2007 showed that Americans opposed to gay marriage by only 53% 246%. Polls by CBS News revealed that public support for either gay marriage or civil unions increased from 53% in 2004 257% in 2006, 61% in 2007, and 65% in 2008.
In Massachusetts, the only state in which gay marriage was legal during these years, public support grew so rapidly that Republicans stopped mentioning the [120] issue. For the first time, significant numbers of Democratic officeholders in many states began openly advocating gay marriage.…
In contrast to other courts ruling on gay marriage since Goodridge, the California and Connecticut courts found no evidence the children fared worse when raised by same-sex couples, rejected as irrational the states’ argument that limiting marriage to opposite sex couples furthered a public interest in linking procreation to marriage, and determined that gays and lesbians were entitled to heightened judicial protection because sexual orientation was an immutable characteristic and because gays both had suffered from a history of rampant discrimination and currently lacked political power.…
An opinion poll in 2007 found Californians evenly divided on gay marriage, with 46% in favor and 46% opposed. By contrast, in 2000, Californians had passed Proposition 22, which provided that ‘only marriage between a man and a woman is valid or recognized in California,’ by a margin of 61% to 39%.”
(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))
4441:
[136] “Reverend Rick Warren, the famed evangelist and gay marriage opponent whose selection by Obama to give the invocation at his inauguration aroused great ire among gay activists, stated on Larry King Live in April that gay marriage was a ‘very low’ priority for him. This was a dramatic shift from 2004, when Warren had called it one of five ‘non-negotiable’ issues in a letter to his Saddleback Church congregation.”
(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))
4441:
[156] “In May 2010, a Gallup poll found for the first time ever that a majority of Americans—52%— believed that sex between same-sex partners was morally acceptable.…
Also in July, Rush Limbaugh came out in support of civil unions for same-sex couples. Soon thereafter, conservative commentator Glenn Beck declared that ‘same-sex marriage isn’t hurting anybody. Honestly, I think we have bigger fish to fry.’…
[157] A Gallup poll conducted in 2009 showed that 69 percent of Americans believed that gays should be permitted to serve openly in the military, up from 43 percent in 1993.”
(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))
4441:
[161] “[In March 2011] An ABC News/Washington Post poll revealed, for the first time ever, that a majority of Americans— 53%— supported the legalization of gay marriage. In May, a Gallup poll confirmed that finding. Six opinion polls conducted within a year showed national support for gay marriage ranging from 51% to 53%.”
(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))
4441:
[164] “After New York enacted gay marriage, prominent conservative commentator David Frum recanted his opposition, observing that he and other conservatives were ‘strangely untroubled’ by New York’s action and denying the gay marriage was responsible for the declining stability of the American family. Leading Republicans on Capitol Hill were conspicuously silent in response to New York’s action.”
(Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013))
Joe: My role, when I came to HRC in 2005, marriage was the third rail of American politics. It was the great detriment to anybody running for office, including our Democratic friends. It was a complete negative. We had won marriage in Massachusetts, but then we had had many, many ballot measures that we had lost all across the country. We had only about 30% of the American people supporting it. Not only was it a significant negative on its own; it was a drag to the agenda of the LGBT movement generally.
Greg: Wasn’t it something like thirty-plus defeats in a row?
Joe: Something like that. I want to say the Supreme Court in Massachusetts ruled in 2003, and in 2004 there were thirteen ballot measures, all of which we lost. John Kerry was quick to point it out as one of the reasons why he lost. There were three election cycles, and even in 2008 when Obama was running, we were still losing. So I want to say maybe twenty-six, when all was said and done. Some were constitutional bans where we lost 70-30. When I came to HRC I was so stupid as to say, “How would you turn that ban around in a state like Ohio?” People laughed at me and said, “A constitutional ban put in place by a ballot measure where you lost 70-30? Maybe someday you’ll overturn it, but it will be a 10-year process.” Well, it was a 10-year process that went exactly like we thought.
But the point was that you would go into a congressman to talk about hate crimes, or Don’t Ask/Don’t Tell, or employment nondiscrimination, or the specter of marriage. We’d come to sort of say, “Your position on marriage is inherent to how we view you,” and we had these people who would say, “I’m with you on everything, but not marriage.” It became not only a political liability, but the issue that was dragging down the work of the movement.
(Joe Solmonese, January 12, 2016)