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National NOW Times >> Fall 2004 >> Article

Struggle for Equal Marriage Heats Up Across the U.S.

by Leanne Libert, Managing Editor

Forget Constitutional amendments and the federal government banning same-sex marriage. Even though the Federal Marriage Amendment to the Constitution is up for a House vote the last week of September, state courts and legislatures are where equal marriage rights will be wrought or fought in the near future.

This trend of states setting precedent began last year when Massachusetts' highest court was the first to recognize that its constitution guaranteed same-sex couples the right to marry. Several more states provide hope that marriage rights will be won there as well.

Equal Marriage NOW!

In August, a judge in Seattle ruled that a ban on same-sex marriage violated the state constitution.

Oregon became the first state in the nation where a judge recognized the legal validity of a marriage license issued to a same-sex couple. In April, a county circuit judge ruled the state must recognize the 3,022 marriage licenses the county has issued to gay and lesbian couples since March 3.

The Idaho senate failed to bring a proposed state ban on same-sex marriages out of committee, likely ending its chances of going to voters this November.

"Feminists laud these advancements, because women will not achieve full equality until every woman can pursue her dreams free from discrimination," said Olga Vives, NOW Vice President-Action.

While some states take same-sex marriage a step forward, others knock it two steps back.

San Francisco stepped onto the front lines of the struggle for equal marriage on February 13, when newly-elected mayor Gavin Newsom authorized issuing marriage licenses to hundreds of same-sex couples, in defiance of state law. More than 3,700 couples married in the month following Newsom's decision, until the state supreme court halted all same-sex marriages in California on March 11.

Five months later that court voided the San Francisco marriages, including the union of early NOW leaders Del Martin and Phyllis Lyon who had been together 51 years, ruling unanimously that Newsom overstepped his authority by issuing the licenses. The court did not, however, resolve whether the constitution would permit same-sex marriage.

The story in New Jersey was strikingly similar. The first state-sanctioned same-sex marriage took place March 8. However, two days later city officials voted to stop accepting applications. A state attorney general later ruled licenses issued to gay and lesbian couples invalid, saying the legislature is the only body with the power to change marriage laws.

In February, a county clerk in New Mexico issued marriage licenses to at least 15 same-sex couples, some of whom immediately exchanged vows outside. The state attorney general soon declared the licenses and the marriages invalid, saying "the law itself precludes it."

After the Seattle judge ruled that banning same-sex marriage was unconstitutional, the ruling was immediately put on hold, pending an appeal court review.

And while progressives across the country celebrated the ruling of an Oregon judge recognizing existing same-sex marriages, the same judge ordered the county to stop issuing any new same-sex marriage licenses and gave the legislature a 90-day deadline to propose a law that settles the dispute.

The issue of banning same-sex marriage has already reared its ugly head on ballots for voters to decide. Still more ballot initiatives have been scheduled as part of November elections in 11 states including Mississippi, Ohio and Oregon, the latter two being swing states in the presidential election.

Missouri voters overwhelmingly backed a constitutional amendment Aug. 2 to ban same-sex marriage. Missouri and 37 other states already have laws defining marriage as only between a man and a woman. Supporters of the amendment still fear a court could toss aside the state law, and believe an outright ban in the state constitution puts opponents of equal marriage on firmer legal ground.

On Sept. 18, voters in Louisiana approved by a 4-to-1 margin the proposed constitutional amendment defining marriage as the union of one man and one woman. More than 600,000 people voted, 78 percent of them in favor of the amendment.

The large turnout in both Missouri and Louisiana shows that many people have been moved by scare tactics of opponents, bolstered by a campaign of misinformation promoted by ultra-conservatives and the religious right.

Conservatives argue that same-sex marriage will destroy family values and the sanctity of marriage. Right-wing propagandists also suggest, contrary to the evidence, that children of gay and lesbian couples would suffer adverse affects if their parents legally marry.

The reality is that children suffer when their parents cannot marry. More than one million children of gay and lesbian parents in the United States are left without protections such as health insurance coverage and Social Security survivor benefits.

The Supreme Court has ruled that the right to marry is a fundamental constitutional right under the equal protection clause of the 14th Amendment, yet courts and legislatures continue to deny that right to same-sex couples.

Lesbian and gay couples want to marry for the same reasons as heterosexuals—for love and commitment. Providing equal marriage rights for gays and lesbians neither threatens nor takes away rights from marriages of heterosexual couples.

Equal marriage advocates ask only that same-sex couples receive the same rights as everyone else. Allowing equal marriage rights would demonstrate America's commitment to diversity, equality, tolerance and respect—ideals that we promote throughout the world.

Currently, same-sex couples in committed relationships pay higher taxes. They receive no Social Security benefits upon the death of a partner despite paying the same payroll taxes as married couples. Healthcare, disability, military and other benefits afforded to heterosexual couples are often not offered to gay and lesbian couples. Only nine states allow government workers domestic partner benefits.

If allowed to marry, gays and lesbians would have a clear way to deal with wills, child custody and support, since marriage is often the basis for determining responsibility in these situations. Legal contracts and agreements are no substitute for marriage for heterosexual couples, so same-sex couples should not have to settle for less than marriage either. Civil unions serve as important advances in the struggle for equality, but a substitution for legal marriage assigns same-sex couples to second-class status—separate and unequal.

At one time in America, interracial marriage was illegal. Just as we ended legal discrimination based on race, we must end discrimination against gays, lesbians, bisexual and transgender people. By drafting amendments banning same-sex marriage, ultra-conservatives and the religious right attempt to write discrimination and bigotry into the Constitution—a document used throughout our nation's history to ensure, protect and expand individual liberties of Americans.

NOW is launching its Equal Marriage NOW campaign, which includes ways activists can become involved in the struggle to achieve equal rights for gays, lesbians, bisexual and transgender people, because equality will not be a reality until all of us are equal under the law.

For more information on the campaign, go to the Equal Marriage NOW page.

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