terça-feira, 26 de julho de 2011

A Nation Divided: Same-Sex Marriage Progresses in Court and Congress, but Loses at the Ballot

by Margaret Datiles, J.D., Associate Fellow

In Culture of Life Foundation

On July 19th, President Obama declared his support for the Respect for Marriage Act, a bill that would repeal the Defense of Marriage Act (DOMA) and legalize same-sex marriage on the federal level. Earlier, on June 24th, New York became the sixth state to allow same-sex marriage. The law, which allows the state to issue marriage licenses to same-sex couples and to recognize out-of-state same-sex marriages, was approved by a slim 33-29 vote. The New York law states that it is the legislature’s intent to eradicate “any legal distinction between same-sex couples and different-sex couples with respect to marriage.” Although the national media highlighted the enactment of the New York same-sex marriage law, it ignored the recent approval of two constitutional marriage amendments – in Indiana and Minnesota – defining marriage as between one man and one woman. Indeed, the media’s focus on the successes of same-sex marriage advocates has effectively eclipsed the successes made by traditional marriage supporters, creating a false public perception of the acceptance of legal same-sex marriage in America.

This essay shall: (1) provide a brief summary of the legal battle to define marriage in America; (2) report on progress and setbacks made by both marriage advocates and same-sex marriage advocates this year; and (3) offer recommendations for the challenges that lay ahead.

Historical Review of Same-Sex Marriage in America, 1972-2009

Efforts to legalize same-sex marriage (SSM) in America began with the 1972 U.S. Supreme Court case, Baker v. Nelson, challenging the constitutionality of a state law defining marriage as between one man and one woman. The Supreme Court established in this case that such a law is constitutional and does not violate the Equal Protection Clause, Due Process Clause and right to privacy under the 14th Amendment.

Same-sex marriage returned to the legal scene in 1996, when President Clinton signed the Defense of Marriage Act (DOMA), which defines marriage as between one man and one woman for purposes of federal law, and affirms the constitutional authority of the states to deny recognition of same-sex marriages performed in another state. [Note 1] Since DOMA was passed, over half the states have defined marriage in their state constitutions as between one man and one woman. Thirty-seven states currently have statutory DOMAs.

In the years following, New England emerged as the center of SSM efforts in America, with other regions following suit: Massachusetts (2003), Connecticut (2008), Iowa (2009), Vermont (2009), New Hampshire (2010), the District of Columbia (2010) and New York (2011) currently allow same-sex marriage. Maryland (2010) recognizes same-sex marriages performed in other states. Notably, all the states (and D.C.) that allow or recognize same-sex marriages have legalized same-sex marriage through court ruling or legislation; same-sex marriage has never been legalized by voter referendum.

On the other hand, voter referendums have a track record of supporting policies and constitutional amendments in favor of laws protecting and reaffirming the definition of marriage as between one man and one woman. At least 30 states have had such voter referendums. In all the states where votes on marriage referendums have taken place, Americans have voted universally to preserve the definition of marriage as between one man and one woman. [Note 2] In Hawaii (1998), Alaska (1998), and California (2008), Americans voted to override same-sex marriage court rulings. Similarly, in 2009, Maine citizens voted to repeal a SSM law enacted by the Maine legislature.

These voting records are a testament to the fact that, when put to a vote, Americans do not favor the legalization of same-sex marriage. Same-sex marriage advocacy has been successful only when the question was put before a judge or before group of politicians being lobbied by gay and lesbian couples.

What Happened in the States this Year: 2010-11 Same-Sex Marriage Report

In 2010-2011, the SSM issue stayed in the national spotlight on the state and federal level, in both legislatures and the courts. On the state level, three states (Maryland, New York and Rhode Island) considered bills creating SSM. The bills failed in Maryland and Rhode Island, but passed in New York.

The success of SSM in New York can be attributed to the strategic efforts made by same-sex advocates to organize, unify and lobby politicians. Five SSM groups in New York merged into one organization, and then hired a consultant to advise them on how to execute a successful lobbying campaign – consisting of phone calls and post cards to politicians, a $3 million television and radio blitz, funding from wealthy donors with gay family members, and personal solicitations to targeted politicians. [Note 3] Although voter referendums across the nation demonstrate that American voters do not favor legalizing SSM, advocates for traditional marriage were not able to organize politically and leverage their support to oppose the New York SSM bill successfully.

In 2011, eight states (Indiana, Iowa, Minnesota, North Carolina, Pennsylvania, West Virginia and Wyoming) considered constitutional amendments to define marriage as between one man and one woman. Indiana and Minnesota approved the marriage amendments, and amendments in North Carolina and Pennsylvania are pending.

A Look Ahead

California presents a unique situation that may eventually change the legal landscape of same-sex marriage across the nation. In 2008, California voters repealed the state policy allowing SSM, passing a definition of marriage as between one man and one woman by voter referendum (“Proposition 8”). The referendum was held unconstitutional by the Ninth Circuit in the recent case, Perry v. Schwarzenegger (August 2010). The final order has been stayed pending appeal, and a hearing is scheduled to take place in December 2011. The decision will likely be appealed to the U.S. Supreme Court. If the Ninth Circuit’s decision is affirmed by the Supreme Court, it will wipe out the marriage laws of the majority of the states, similar to the effect Roe v. Wade had on abortion laws across the nation. [Note 4]

On the federal level, the Obama Administration declared in February 2011 that the Administration will not defend the constitutionality of DOMA in court. Four cases challenging the constitutionality of DOMA are currently being litigated in the courts. On July 8, 2010, District Judge Joseph Tauro held in two companion cases – Gill v. Office of Personnel Management and Massachusetts v. United States Dept. of Health and Human Services – that DOMA is unconstitutional under the Fifth and Tenth Amendments. They are now on appeal to the First Circuit. Two other cases challenging DOMA are pending: Pedersen v. Office of Personnel Management is being litigated in the Second Circuit, and Windsor v. United States is being litigated in the U.S. District Court for the Southern District of New York.

In addition to court challenges against the definition of marriage, the U.S. Senate is also taking steps to strike down DOMA. As mentioned above, President Obama declared his support on July 19th for a bill before Congress repealing DOMA. Last week, the U.S. Senate began hearings to repeal DOMA. The Obama Administration is supporting same-sex marriage in two ways: by declining to defend DOMA in court and by starting the process to legislatively repeal DOMA in Congress.

What can we expect in the days ahead? Although the result of California’s “Proposition 8” case is unpredictable, we know that the result will certainly have a monumental effect on American marriage law and the future of same-sex marriage. Meanwhile, the Obama Administration’s efforts to stomp out DOMA are making steady progress. However, we can remain confident in the track record that American voters have established across the nation supporting the protection of the true definition of marriage.

What can we do to be better prepared for the challenges ahead? As demonstrated by New York,, traditional marriage advocates must take efforts to organize and unite politically in order to successfully carry out a strategic opposition to specific SSM advances. In addition, traditional marriage advocates should publicize and make use of the strong American voting record in support of traditional marriage.


In the last two decades, same-sex marriage has won favor with individual judges and politicians, but it loses every time at the American ballot box. Contrary to the opinions set forth by the media and same-sex marriage proponents, same-sex marriage has not been accepted by the American people and remains an issue of severe controversy. It is clear that the same-sex marriage issue continues to be a source of division in American culture and politics.


Note 1. See also, Margaret Datiles, “DOMA, Marriage and the Obama Administration: The Basic Facts You Need to Know,” available at http://culture-of-life.org//content/view/714/1

Note 2. In Arizona, a voter referendum for a constitutional amendment defining marriage between one man and one woman failed in 2006, but was ultimately passed in 2008.

Note 3. See, e.g., The New York Times, http://www.nytimes.com/2011/06/26/nyregion/the-road-to-gay-marriage-in-new-york.html?pagewanted=all and http://www.nytimes.com/2011/06/25/nyregion/gay-marriage-approved-by-new-york-senate.html?pagewanted=all

Note 4. See also, Margaret Datiles, “ Understanding the Legal Basics of Same-Sex Marriage in Light of Perry v. Schwarzenegger, “ available at http://www.headlinebistro.com/en/columnists/datiles/083010.html