How We Got Here: A Brief Analysis of Gay Marriage

by Michael Sauvé

Following the Stonewall Riots in 1969, homosexuals began aggressively seeking additional legal recognition of their relationships.[1] Shortly thereafter in 1970, a couple in Minnesota applied for a marriage license.[2] Richard Baker and Michael McConell applied for a marriage license from the Hennepic County clerk who subsequently denied their request.[3] The two men claimed that they met statutory requirements for marriage and sought injunctive relief.[4] The Minnesota Supreme Court ruled against the couple, citing marriage as being a predefined "institution" referencing its existence in the book of Genesis.[5] According to the Court, marriage is defined as a union of man and woman, centered on procreation and childrearing, which same-sex couples were incapable of accomplishing.[6]

After failures in seeking marriage equality, same-sex couples pursued alternate routes to gain similar rights, spawning the status of domestic partnerships.[7] During the 1970's, the first use of domestic partnership in a legal context originated in California.[8] In Brinkin v. Southern Pacific Transportation Company, Larry Brinkin sought funeral leave from his employer upon the death of his same-sex domestic partner of eleven years.[9] Brinkin claimed that as a result of losing his partner, he required a short period of time off from work.[10] His request for bereavement leave was denied.[11] The California court declined to extend company bereavement benefits to an employee involved in a long term same-sex relationship, whereas married employees in similar situations were able to make use of such benefits.[12]

Subsequently, in 1985, the City of West Hollywood in California introduced legislation concerning domestic partners.[13] The City created the first domestic partnership registry, where any citizen of West Hollywood could register their partnerships to receive recognition at a local level.[14] Domestic partnership laws have since spread across the United States and allowed unmarried adults, regardless of their sexual orientation, to enjoy some of the benefits associated with marriage.[15]

A marriage recognized in one state or country is recognized in another. Whether it is by virtue of the full faith and credit clause or principles of comity, a marriage contract remains valid and travels across state borders.[16] In sharp contrast to marriage, domestic partnerships do not carry the same benefit of portability.[17] Additionally, Congress suspended the mandatory interstate recognition of marriage contracts between same-sex couples in legislation termed the Defense of Marriage Act (DOMA).[18]

In 1996, Hawaii's Supreme Court ruled on a challenge to the state's practice of not extending marriage licenses to same-sex relationships.[19] Because sex constituted a suspect category, the Court held that the prohibition warranted a strict scrutiny analysis under an equal protection constitutional analysis.[20] On remand, Hawaii's Department of Health was unsuccessful in meeting the often-burdensome requirements of strict scrutiny and the court declared the statutory proscription unconstitutional.[21]

In the wake of Hawaii's pending same-sex marriage case, Congress convened to take preemptive action.[22] The Defense of Marriage legislation was introduced to ensure the ramifications of Hawaii's legal interpretations of its statutes and constitution would be confined to that state alone.[23] The Act was enacted in response to "fear that if one state sanctioned same-sex marriages, other states might then have to give full faith and credit to those marriages."[24] Hawaii did not legalize same-sex marriages and Congress's act of preemption was premature.[25]

Massachusetts became the first state to extend marriage to same-sex couples.[26] The Massachusetts Supreme Court determined civil marriage to be the voluntary union of two persons as spouses.[27] Amici argued that the prohibition of marriage for same-sex couples reflected the community consensus that homosexual conduct is immoral.[28] The court identified a trend in Massachusetts policy for preventing discrimination based on sexual orientation and concluded that barring individuals from civil marriage would violate the Massachusetts Constitution.[29]

California's Supreme Court ruled a statute limiting marriage between a man and a woman unconstitutional.[30] The court reasoned that tradition alone was an insufficient justification for continuing the denial of a fundamental constitutional right.[31] Sexual orientation was elevated to a suspect class, warranting the use of a strict scrutiny standard of review.[32] Same-sex couples were no longer excluded from the right to marry until the passage of the 2008 ballot initiative amending California's constitution. The amendment stated, "only marriage between a man and a woman is valid or recognized in California."[33] The constitutionality of the amendment is currently being challenged in court.[34]

Connecticut's Supreme Court elevated sexual orientation to a quasi-suspect class and required that same-sex couples not be excluded from the freedom to marry.[35] The court concluded that Connecticut's constitutional provisions under equal protection require that same-sex couples be afforded the same treatment as opposite-sex couples under the law.[36]

The Defense of Marriage Act currently remains in effect and has precluded states from the mandatory recognition of same-sex marriages that have been sanctioned in Massachusetts, California, and Connecticut.[37]

Michael Sauvé is a student at Barry University School of Law

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[1] GLBTQ, Stonewall Riots, (last visited December 23, 2008). "The weekend of June 27-29,1969 was a turning point in the struggle for glbtq equality. Gay and lesbian activism certainly existed prior to this time, but the confrontations between police and demonstrators at the Stonewall Inn in New York City catalyzed the movement and inspired gay men and lesbians to move their cause to entirely new heights utilizing entirely new tactics." Id.

[2] Baker v. Nelson, 291 Minn. 310 (1971).

[3] Id.

[4] Id. "It is unrealistic to think that the original draftsmen of our marriage statutes, which date from territorial days, would have used the term in any different sense" referencing a historical lack of recognition toward homosexual relationships.

[5] Id. at 312.

[6] Id.

[7] Leland Traiman, A Brief History of Domestic Partnerships, Gay & Lesbian Review, July-August 2008, (last visited December 23, 2008)."He analyzed the effect of using marriage as the sole eligibility criterion and asserted that Berkeley had a responsibility to end uneven effects in its own programs and in its contracts with health care providers. In the second letter, Brougham proposed a solution: Berkeley could resolve the dilemma by creating a new category called "domestic partnership." He recognized that there would have to be strict criteria that determined when such a relationship existed and limited an employer's or health care provider's responsibilities, so Brougham aimed to create a new category for same-sex couples that would have the same degree of stability and strictness as marriage itself. His approach was to deconstruct marriage into its component parts (without the opposite-sex requirement) and to bundle the remaining requirements together. To qualify, the couple would have to sign an affidavit attesting to the fact that they met all the requirements. He proposed that the city of Berkeley use this new category within any of its benefit programs." Id.

[8] Brinkin v. Southern Pacific Transp. Co., 572 F.Supp. 236, 237 (D.C.Cal.,1983).

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] City of West Hollywood, West Hollywood City Council Directs its City Attorney to Investigate Legally Recognizing Same-Sex Marriages, (last visited December 23, 2008).

[14] City of West Hollywood, Current Domestic Partnership, (last visited December 23, 2008).

[15] Black's Law Dictionary (8th ed. 2004), Domestic-partnership law

"A legislative enactment, often a municipal ordinance, that grants unmarried adults living in economically or emotionally based relationships, regardless of their sexual preference, some of the rights of a civil marriage without attempting to change the traditional definition of marriage." Id.

[16] Black's Law Dictionary (8th ed. 2004), Comity

"A practice among political entities (as nations, states, or courts of different jurisdictions), involving esp. mutual recognition of legislative, executive, and judicial acts" Id.

[17] Evan Wolfson, Why Marriage Matters: America, Equality, and Gay People's Right to Marry, 151 (Simon & Schuster 2004).

[18] 1 U.S.C. § 7 "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

28 U.S.C. § 1738C "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."

[19] Baehr v. Lewin, 74 Haw. 530 (1993).

[20] Id. at 580.

[21] Baehr v. Miike, 1996 WL 694235, 20 (Hawai'i Cir.Ct.,1996) "Defendant's argument that legalized prostitution, incest and polygamy will occur if same-sex marriage is allowed disregards existing statutes and established precedent..."

[22] 142 Cong. Rec. S7885-02 (1996). In Senate, the Defense of Marriage bill was read the first time, an act to define and protect the institution of marriage.

[23] Id.

[24] Black's Law Dictionary (8th ed. 2004), Defense of Marriage Act. See also 142 Cong. Rec. S10129-01(1996). Vote resulted with 85 yeas and 14 nays, one senator was absent.

[25] Haw. Const. art I, § 23. "The legislature shall have the power to reserve marriage to opposite-sex couples."

[26] Goodridge v. Dept. of Public Health, 7440 Mass. 309 (Mass. 2003)

[27] Id. at 337.

[28] Id.

[29] Id. at 344.

[30] In re Marriage Cases, 43 Cal.4th 757 (2008).

[31] Id. at 784.

[32] Id. at 787.

[33] ProtectMarriage.com, Re: Request fur Title and Summary of Proposed Initiative

[34] Id.

[35] Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 174 (2008).

[36] Id. at 172.

[37] 28 U.S.C. § 1738C, supra note 23.



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