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National NOW Times >> August 1995 >> Article

Lesbian and Gay Couples Seek Right to Marry

by Kimberlee M. Ward and Dorie Clark, NOW Intern

The National Organization for Women resolved this May that marriage is a fundamental constitutional right which belongs to lesbians and gay men. That very issue is being considered in a Hawaiian court case which began in 1991, when the state clerk refused marriage licenses to three gay couples (two female, one male). Two years later, the Hawaiian Supreme Court ruled that this denial was unlawful sex discrimination; the lower court must now stop the discrimination unless the state can provide a "compelling" reason for it. The Hawaiian Supreme Court's decision, which may come down as soon as this fall, will be final; the case cannot be appealed to the U.S. Supreme Court because it deals with a state, rather than a federal, constitutional question. Attorneys are hopeful about the case, but a legislative barrage against the right to marry is beginning. Utah and Hawaii have passed laws against same-sex marriages; a South Dakota initiative was narrowly defeated in the Senate; and equal marriage rights are presently threatened by a proposal in Alaska.

Although eight states presently prohibit discrimination based on sexual orientation, nowhere in the United States are lesbian and gay marriages legally recognized. In some cities, municipalities, and companies, lesbians and gay men are eligible for "domestic partnerships." Many defend the discrimination against lesbians and gay men with the rationale that marriage is traditionally a union between a woman and a man for the sake of procreation. For heterosexuals as well as lesbians and gay men, however, marriage is about love, not procreation. Marriage has also been "traditionally" prohibited between those of different races or religions, and the law "traditionally" held a woman to be the property of her husband, but contemporary views of marriage have changed with our expanding understanding of equal rights under the Constitution -- for instance, the U.S. Supreme Court struck down bans on interracial marriages in 1967. Lesbians and gay men now seek the same chance as heterosexuals to exercise their Constitutional right to marry the person they love.

Lesbian and gay couples seek the right to marry because their relationships, even under domestic partnership laws, are not given the same recognition or benefits as heterosexual married couples, despite their responsibilities and commitment. In fact, lesbian and gay couples often face intense discrimination in such areas as "family" health coverage, child custody, insurance and inheritance benefits, taxation and community property rights. A lesbian or gay man may be turned away at the hospital if her or his partner becomes seriously ill, because they are neither married nor blood relatives.

If the courts decide in favor of equal marriage rights, same-sex couples who wed in Hawaii are likely to expect full legal recognition of their marriage in other states, as is granted to heterosexuals. While common sense and legal precedent would consider this logical -- the United States is one country, and marriage is marriage -- an even larger backlash against equal marriage rights (such as the current legislative initiatives) is sure to be mounted.

Some activists in the feminist and lesbian and gay rights movements are hesitant to fight for the right to marry because of traditional and current concepts of marriage, which disadvantage women and which impose a state- sanctioned structure on a personal relationship. The National NOW Board voted to support the extension of marriage rights to lesbians and gays, however, because constitutional rights should not be denied to persons based on sexual orientation. NOW supports the legalization and protection of lesbian and gay families and supports their constitutional right to decide for themselves about marriage.

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