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National NOW Times >> Winter 2003/2004 >> Article

Radical Right Ignores Courts on Marriage Rights, Attempts to Write Discrimination Into U.S. Constitution

by Jessica Greenfield, Communications Intern

NOW staff members and interns demonstrate against the proposed Constitutional amendment designed to deny equal marriage rights to same-sex couples.
NOW staff members and interns demonstrate against the proposed Constitutional amendment designed to deny equal marriage rights to same-sex couples. Photo by Karin Almjeld
On Nov. 18, 2003, the Massachusetts Supreme Court made history by ruling that same- and opposite-sex couples are entitled to equal marriage rights under the Massachusetts State Constitution. The decision in Goodridge et al. v. Department of Public Health defined civil marriage in Massachusetts as, "The voluntary union of two persons as spouses, to the exclusion of all others." The court allowed the state legislature 180 days to begin carrying out the ruling.

This unprecedented judgment is a substantial victory in the fight for human rights for all. "The right to civil marriage for same-sex couples is an essential step on the road to full equality," said NOW President Kim Gandy. "Heterosexual married couples are afforded more than a thousand legal protections and benefits in state and federal law which are inaccessible to committed same-sex couples."

The November ruling will allow same-sex couples who marry in Massachusetts to visit each other in the hospital, make important health care and financial decisions for one another, file joint state tax returns and receive hundreds of other state protections.

"Marriage is a legal issue, not an ideological playground. It's not about what you believe or don't believe—this is about what is fair and just," Gandy said. "Activists from coast to coast are counting on Massachusetts lawmakers to act in accordance with their supreme court and begin to dismantle the heterosexual monopoly on marriage."

While the Massachusetts ruling was a clear victory for human rights, threats to freedom at the federal level loom ominously.

The Defense of Marriage Act (DOMA), passed in 1996 and signed by Bill Clinton, defined marriage as "the legal union between one man and one woman," and asserted that states are not required to recognize any same-sex marriage performed in another state. Nevertheless, because of the recent high profile court decisions, including Lawrence v. Texas, which repealed existing Texas anti-sodomy laws, the political right wing has taken action to further limit civil rights and autonomy for gay and lesbian individuals.

On Nov. 25, just prior to the adjournment of the Senate, five republican Senators led by Wayne Allard, R-Colo., introduced a bill that, if passed, will begin the process of amending the U.S. Constitution to permanently reject marriage as a fundamental legal and human right that extends to same-sex couples. The exact language, as agreed upon by both the Senate and House, is as follows:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the Constitution of any State, nor State or Federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

The Federal Marriage Amendment not only denies lesbian and gay couples the right to marry, but may also prohibit other basic forms of legal recognition, such as civil unions or domestic partnerships, thanks to those five little words—"or the legal incidents thereof."

The fight to amend the Constitution to withhold marriage rights from same sex couples promises to be a lengthy process (three-fourths of the 50 state legislatures must ratify the proposed amendment) that would consume a great deal of resources on both sides.

"The so-called Federal Marriage Amendment is a transparent election-year ploy to gain political profit by exploiting bigotry and hate," said Gandy. "The Constitution should extend rights and freedoms to everyone and guarantee equal treatment—it should not be marred by institutionalizing discrimination."

Gandy explained that a religious entity cannot be required to recognize or perform same-sex marriages, or for that matter, any marriages at all. Rulings like the Massachusetts decision simply require legal recognition of same-sex marriages—and there is no shortage of marriage licenses.

"My marriage won't be threatened or undermined by making civil marriage rights available to same-sex couples, and neither will anyone else's," said Gandy.

Even without the restrictive and unwarranted constitutional amendment, laws governing and prohibiting same-sex marriage laws in this country are extremely complex. Marriage laws in the U.S. are contingent upon individual state legislation and are highly influenced by public opinion; for example, state miscegenation laws that prohibited interracial marriage. Right now, all marriage laws are determined on a state-by-state basis.

"The bottom line is that extending marriage rights harms no one," says NOW Action Vice President Olga Vives. "As a matter of fact, recognizing same-sex marriages will allow loving, committed, lesbian and gay couples to enjoy the same benefits and responsibilities and abide by the same laws that govern heterosexuals."

Gandy added: "In the 1960s, the civil rights movement fought for interracial couples to have marriage rights—and won. We're fighting for marriage rights again, this time for same-sex couples. We'll win this struggle too."

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