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to Section One | to Arts & Entertainment
posted Friday, January 11, 2013 - Volume 41 Issue 2
2013: Where we stand
Arts & Entertainment
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2013: Where we stand

Same-sex marriage, civil unions, and domestic partnerships

by Shaun Knittel - SGN Associate Editor

The road to marriage equality has not been an easy one to traverse. There's been momentum, disappointment (California's Prop 8), and excitement (Obama endorses same-sex marriage). We can get married in this state, but not that one. Our love is recognized in my state but not in yours. It is, for lack of a better word, F'd up.

The federal Defense of Marriage Act is a thorn in all our sides. Still, 2012 was an amazing time to be LGBT, was it not? Well, aside from the 'God Hates Fags' idiots, Chick-fil-A, and the GOP in general, anyway.

On Nov. 6, 2012, voters in Maine, Maryland, and Washington approved same-sex marriage on an election night that delighted Gay rights advocates called a historic turning point - the first time that marriage for same-sex couples has been approved at the ballot box. It had been voted down more than 30 times.

In Minnesota (another first), voters rejected a proposal to amend the state constitution to define marriage as between a man and a woman, a measure that has been enshrined in the constitutions of 30 states.

The votes meant that same-sex marriage is now legal in nine states and the District of Columbia.

These victories are an important sign that public opinion is shifting in our direction. Though same-sex marriage remains unpopular in the South, rights campaigners see the potential for legislative gains in Delaware, Hawaii, Illinois, Rhode Island, Minnesota, and New Jersey, where Gov. Chris Christie vetoed a bill to legalize same-sex marriage in February 2012.

Washington's new law went into effect on Dec. 6, 2012, and in Maine on Dec. 29; Maryland's took effect on Jan. 1.

The New York Times has a brilliant timeline of marriage equality since 2004. Anyone seeking to become well-versed in marriage equality history ought to enjoy this. There's a lot of info, but by the time you get to the conclusion, you'll be amazed at just how far we've come.

Same-sex marriage became a reality in the United States in 2004 in the wake of a ruling by the Massachusetts Supreme Court that it was required under the equal protection clause of the state's Constitution.

Prior to 2012, same-sex marriage was also legalized in New York, Connecticut, Iowa, New Hampshire, Vermont, and Washington, D.C. Early in 2012, Washington state and Maryland both approved same-sex marriage laws, but neither took effect immediately and were subject to fall referendums.

In early May, North Carolina voted in large numbers for a constitutional amendment that would ban same-sex marriages, partnerships, and civil unions, becoming the 30th state in the country and the last in the South to include a prohibition on Gay marriage in the state constitution.

Days later, on May 9, President Obama declared for the first time that he supports same-sex marriage, putting the moral power of his presidency behind a social issue that continues to divide the country.

Obama's support ended years of public equivocating over the divisive social issue for the president, who previously said he opposed Gay marriage but repeatedly said he was 'evolving' on the issue because of contact with friends and others who are Gay.

Also in May, Colorado lawmakers reached an impasse over a bill to allow civil unions, as Republicans blocked a House vote until a deadline expired.

A special legislative session was called by Colorado Gov. John W. Hickenlooper to debate the issue. The legislation was voted down 5-4 along party lines after emotional testimony in the State, Veterans, and Military Affairs Committee, where it was assigned by Republican leadership in the House of Representatives.

Support for same-sex marriage among the public has been growing, but the country remains divided. In a Pew poll conducted in October 2012, 49 percent of respondents said they favored allowing Gays and Lesbians to marry legally and 40 percent were opposed. Four years earlier, in August 2008, the numbers were just about reversed: 39 percent in favor and 52 percent opposed.

A strong majority of younger Americans now support same-sex marriage. In a Gallup Poll conducted in November 2012, 73 percent of people between 18 and 29 years old said they favored it, while only 39 percent of people older than 65 did.

While about half of the country supports the legalization of same-sex marriage, supporters are not evenly distributed. Based on Pew data, a majority favors same-sex marriage in New England, in the Mid-Atlantic states, and along the Pacific Coast. In the Midwest and the South Atlantic states, opinion is closely divided, but in the central South, a majority opposes same-sex marriage.

More than half of the nation's Latinos are in favor of same-sex marriage, according to a survey released in October 2012, dispelling a longstanding notion that their religious beliefs offered a safe path to Republicans looking to stake a claim in the community through shared social values.

Just six years ago, 56 percent of Latinos were against same-sex marriage. Today, their rate of approval stands at 52 percent overall and slightly higher - 54 percent - among Latino Catholics, the survey by the Pew Research Center found.

Latino evangelicals, on the other hand, remain strongly opposed to same-sex marriage. While Catholics said they were more likely to hear their priests talk about immigration, evangelicals said their pastors spoke most frequently about homosexuality.

The survey was carried out by telephone, in English and Spanish, among 1,765 Latinos across the country, including 903 registered voters, from Sept. 4 to Oct. 7, with a 3% margin of error.

For years, Gay and African-American civil rights organizations viewed each other warily. Black leaders often saw the Gay rights groups as insensitive to racial concerns, and some resented the use of civil rights movement language to make the case for same-sex marriage. Gay rights advocates, in turn, sometimes blamed socially conservative African Americans for their defeat in crucial electoral battles.

But since the relationship reached something of a crisis with the passage of Proposition 8, California's ballot initiative against same-sex marriage, in 2008, leaders in both movements have made an effort to bring their groups closer together.

Now, conversations among leaders in the Gay, Black, and Latino communities have borne significant fruit: In May 2012, the board of the NAACP voted to endorse marriage equality.

And then, in early June, representatives of several national Gay rights organizations gathered at New York City's Stonewall Inn, often described as the birthplace of their movement, to announce that they would march to protest the New York Police Department's stop-and-frisk practice, under which the police each year have been stopping hundreds of thousands of New Yorkers, most of them Black or Latino, often on little or no pretext, ostensibly in an effort to prevent crime.

Some Gay rights leaders specifically cited support from the NAACP for same-sex marriage as a reason they decided to oppose the stop-and-frisk policy.

The same-sex-marriage and stop-and-frisk issues are only the most visible signs of closer collaboration. Around the country, Gay rights groups have joined minority advocacy organizations in political battles on behalf of voting rights and affirmative action. And in California, Oregon, and Colorado, Gay rights organizations have formed partnerships with immigrant rights groups to fight aggressive immigration enforcement.

President Obama's becoming the first sitting president to support extending the rights and status of marriage to Gay couples came after longstanding pressure from Gay rights activists who are among his most loyal constituents but have been frustrated by his refusal to weigh in on the issue.

But the decision to risk the potential political damage in an election year appears to have been driven by the unexpected declarations of support for same-sex marriage by his vice president and several cabinet members.

His remarks came after Vice President Joseph R. Biden Jr. said on May 6 that he is 'absolutely comfortable' with the idea of Gay Americans marrying each other. Arne Duncan, the secretary of education, said a day later that he flatly supports same-sex marriage.

In the interview, Obama spoke about how his views about same-sex marriage have changed over the years, in part because of prodding from friends who are Gay.

'I had hesitated on Gay marriage in part because I thought that civil unions would be sufficient,' Obama said. 'I was sensitive to the fact that for a lot of people, the word marriage was something that invokes very powerful traditions and religious beliefs.'

But he added, 'I've always been adamant that Gay and Lesbian Americans should be treated fairly and equally.'

For more than a decade, same-sex marriage has been a flashpoint in American politics, setting off waves of competing legislation, lawsuits, and ballot initiatives to either legalize or ban the practice and causing rifts within religious groups.

The legalization of same-sex marriage in the United States had been a relatively recent goal of the Gay rights movement, but in the wake of the Massachusetts ruling, Gay rights organizers have placed it at the center of their agenda, steering money and muscle into dozens of state capitals in an often uphill effort to persuade lawmakers. At the same time, conservative groups have pushed hard to forestall or reverse other courts through new laws or referendums.

Proponents of same-sex marriage have long argued that the institution of marriage is a unique expression of love and commitment and that calling the unions of same-sex couples anything else is a form of second-class citizenship. They also point out that many legal rights are tied to marriage. Those opposed to same-sex marriage agree that marriage is a fundamental bond with ancient roots. But they draw the opposite conclusion, saying that allowing same-sex couples to marry would undermine the institution of marriage itself.

The issue of same-sex marriage came to the fore after the Hawaii Supreme Court ruled in 1993 that the denial of marriage licenses to three homosexual couples amounted to unconstitutional discrimination on the basis of sex - not sexual orientation - unless the state could show a compelling reason for the denials.

The Hawaii Legislature passed a bill in 1994 affirming marriage as intended for 'man-woman units' capable of procreation. But in 1996, conservatives, fearful that the court case would lead to the sanctioning of marriages of Lesbian and Gay couples in Hawaii by the end of 1997, campaigned across the nation to insure that the recognition of same-sex marriages would not spread to other states.

The legislative battle picked up momentum as more conservatives became convinced a federal law was required. In September 1996, the U.S. Congress, approving the so-called Defense of Marriage Act, voted overwhelmingly to deny federal benefits to married people of the same sex and to permit states to ignore such marriages sanctioned in other states. The bill was signed by President Bill Clinton (who has since come to oppose it).

In 1998, Hawaii voters rejected the legalization of same-sex marriages.

Same-sex marriage first became a reality in the U.S. in 2004, after the Massachusetts Supreme Court ruled that it was required under the equal protection clause of the state's constitution. Connecticut began allowing same-sex marriage in late 2008.

In April 2009, Iowa's Supreme Court ruled in favor of allowing Gay couples to marry, and the legislatures of Maine and Vermont passed laws granting the same right in the following weeks. In California, a court decision in 2008 allowed the marriages; however, the Proposition 8 voter referendum that November, which was upheld in court in May 2009, barred them.

The New Hampshire legislature approved revisions to a same-sex marriage bill on June 3, 2009, and Gov. John Lynch promptly signed the legislation, making the state the sixth to let Gay couples wed.

Civil unions, an intermediate step that supporters say has made same-sex marriage seem less threatening, are legal in New Jersey, Connecticut, and Vermont. The latter two states are phasing them out after adopting same-sex marriage laws.

In February 2011, Obama, in a major legal policy shift, directed the Justice Department to stop defending the Defense of Marriage Act against lawsuits challenging it as unconstitutional.

The issue of same-sex marriage continues to simmer in a number of court cases that appear headed toward the Supreme Court. In February 2012, a federal appeals court in California struck down the ban put into place by the Proposition 8 referendum.

In October, a federal appeals court in Manhattan ruled that the Defense of Marriage Act unlawfully discriminates against same-sex married couples by denying them equal federal benefits, making it the second federal appeals court to reject a central portion of the law. It followed a federal appellate panel in Boston, which handed down its ruling in May.

On May 15, 2008, the California Supreme Court voted 4-3 that a state law banning same-sex marriage constituted illegal discrimination because domestic partnerships were not a good enough substitute. In its decision, the court wrote that whatever term is used by the state must be granted to all couples who meet its requirements, whatever their gender. The court left open the possibility that another term could denote state-sanctioned unions so long as that term was used across the board.

Opponents quickly organized and launched the Proposition 8 initiative campaign, asking voters to ban same-sex marriages. After an expensive and hard-fought campaign, the measure passed on Nov. 4, 2008, with 52 percent of the vote. (Florida and Arizona also passed bans at the same time.)

Groups who had fought Proposition 8 immediately filed suit to block it. On May 26, 2009, the state Supreme Court upheld the voter-approved ban but also decided that the estimated 18,000 Gay couples who tied the knot before the law took effect would stay wed. But in August 2010, a federal judge in San Francisco struck down the ban, saying it unfairly targeted Gay men and women, handing supporters of such unions a temporary victory in a legal battle that seems all but certain to be settled by the Supreme Court.

In February 2012, a federal appeals court upheld the judge's ruling. During the period when same-sex marriages were legal in the state, nearly 18,000 couples married; their unions remain in place.

An attempt to repeal New Hampshire's same sex marriage law failed in March 2012 in the House of Representatives, with members of the Republican-dominated chamber voting 211-116 to kill the bill.

Some opponents of repeal cited the state's 'Live Free or Die' motto, saying they were uncomfortable revoking any right that had already been granted. Others did not see the point of embracing the repeal when Gov. John Lynch, a Democrat, had vowed to veto it.

Had the repeal succeeded in both chambers, New Hampshire would have been the first state in which a legislature reversed itself on the issue of same-sex marriage. National Gay rights groups had invested heavily in fighting the bill, focusing on lawmakers with libertarian leanings.

In December 2009, the New York State Senate voted down a proposal to legalize same-sex marriage. The vote followed more than a year of lobbying by Gay rights organizations, who steered close to $1 million into New York legislative races to boost support for the measure.

But in June 2011, the tide turned when four senators who had voted against legalizing same-sex marriage reversed course, saying their constituents' thinking on the socially divisive issue had evolved. Lawmakers voted on June 24 to legalize same-sex marriage, making New York the largest state where Gay and Lesbian couples will be able to wed.

The marriage bill, whose fate was uncertain until moments before the vote, was approved 33-29 in a packed but hushed Senate chamber. In the end, four members of the Republican majority joined all but one Democrat in the Senate in supporting the measure after an intense and emotional campaign aimed at the handful of lawmakers wrestling with a decision that divided their friends, their constituents and sometimes their own homes.

The unexpected victory had a clear champion: Gov. Andrew M. Cuomo, a Democrat who pledged in 2010 to support same-sex marriage but whose early months in office were dominated by intense battles with lawmakers and some labor unions over spending cuts. Mr. Cuomo made same-sex marriage one of his top priorities for 2011 and deployed his top aide to coordinate the efforts of a half-dozen local Gay rights organizations whose feuding and disorganization had in part been blamed for the defeat two years ago.

The new coalition of same-sex marriage supporters brought in one of Mr. Cuomo's trusted campaign operatives to supervise a $3 million television and radio campaign aimed at persuading several Republican and Democratic senators to drop their opposition. In New York, passage of the bill reflects rapidly evolving sentiment about same-sex unions. In 2004, according to a Quinnipiac poll, 37 percent of the state's residents supported allowing same-sex couples to wed. In 2011, 58 percent of them did. Advocates moved aggressively to capitalize on that shift, flooding the district offices of wavering lawmakers with phone calls, e-mails, and signed postcards from constituents who favored same-sex marriage, sometimes in bundles that numbered in the thousands.

The law went into effect on June 24, with hundreds of couples marrying within the first hours.

Religious institutions have struggled no less than state legislatures with policies, privileges, and rites regarding homosexuality, including whether or not to bless same-sex unions and whether or not Gays and Lesbians may hold positions of authority. There is no consensus among Christian faith groups on what the Bible says about homosexuality. Meanwhile, many individuals yearn for acceptance from their houses of worship.

In 2005, the historically liberal United Church of Christ became the first major Christian denomination to endorse same-sex marriage when its General Synod passed a resolution affirming 'equal marriage rights for couples regardless of gender.' The resolution was adopted in the face of efforts to amend the Constitution to ban same-sex marriage.

In July 2009, at the 76th General Convention of the Episcopal Church, delegates including bishops, clergy, and lay members voted to open 'any ordained ministry' to Gay men and Lesbians, a move that could effectively undermine a moratorium on ordaining Gay bishops that the church passed at its last convention in 2006. Delegates also voted not to stand in the way of dioceses that choose to bless the unions of same-sex couples. Both issues have roiled the church for years.

In May 2012, the United Methodist Church, at its convention in Tampa, voted against changing long-contested language in its book of laws and doctrines that calls homosexuality 'incompatible with Christian teaching.' The delegates also defeated a compromise proposed by Gay rights advocates, which said that Methodists could acknowledge their differences on homosexuality while still living together as a church.

In most other mainline Protestant denominations in the United States, liberals have largely prevailed. In addition to the Episcopal Church, the Presbyterian Church (U.S.A.) and the Evangelical Lutheran Church in America have voted in recent years to end their outright prohibitions on openly Gay clergy members, though the Presbyterians last summer declined to endorse same-sex marriage. Mainline Baptist organizations are internally divided, with the American Baptist Churches U.S.A. taking modest steps toward equality in recent years. (Seattle's largest ABC-USA church, Seattle First Baptist, has been performing commitment ceremonies for Gay couples since 1979, but is an outlier within the denomination.)

An influx of foreign members has bolstered the conservative ranks in several denominations. The United Methodist Church is the largest mainline Protestant denomination in the country, but its U.S. membership has declined to about 7.8 million in recent years from its 1960s peak of 11 million. Meanwhile, its membership abroad has grown to about 4.4 million - mostly in Africa and the Philippines, where homosexuality is widely considered taboo.

Conservative evangelical and fundamentalist denominations have made significant efforts to purge their ranks of LGBT rights sympathizers. The Southern Baptist Convention, for example, has expelled congregations that explicitly welcomed Gays and Lesbians.

Reform Judaism, the largest of the main branches of Judaism, has for years allowed same-sex commitment ceremonies. Conservative Jewish bodies have made some recent progress, while Orthodox Judaism hews to the traditional prohibition of all homosexual conduct.

Both major Islamic traditions categorically prohibit homosexual conduct and same-sex marriage.

In late August 2011, the Census Bureau released surprising data on where same-sex couples live in the United States. For example, the list of top cities did not include that traditional Gay mecca, San Francisco. In fact, the city, which ranked third in 1990 and 11th in 2000, plummeted to No. 28 in 2010. And West Hollywood, once No. 1, dropped out of the top five.

According to the report, the No. 1-ranked town for Gay and Lesbian couples is Provincetown, Mass., at the tip of Cape Cod. Most surprising is how far same-sex couples have dispersed, moving from traditional enclaves and safe havens into farther-flung areas of the country. For instance, Pleasant Ridge, Mich., a suburb of Detroit; New Hope, Pa.; and Rehoboth Beach, a beach town in southern Delaware, were in the top 10. All three had been popular destinations for Gay people locally but had never ranked among the top places for them to live.

The reordering reflects the growing influence of baby boomers, who are beginning to retire, and whose life transitions are showing up in the data.

On Dec. 7, 2012, the U.S. Supreme Court entered the national debate about same-sex marriage, agreeing to hear a pair of cases challenging state and federal laws that define marriage to include only unions of a man and a woman. One of the cases, from California, could establish or reject a constitutional right to same-sex marriage. The other, from New York, challenges a federal law that requires the federal government to deny benefits to Gay and Lesbian couples married in states that allow such unions.

The California case, Hollingsworth v. Perry, No. 12-144, was filed in 2009 by Theodore B. Olson and David Boies, two lawyers who were on opposite sides in the Supreme Court's decision in Bush v. Gore, which settled the 2000 presidential election. The suit argued that California's voters had violated the federal Constitution the previous year when they overrode a decision of the state's Supreme Court allowing same-sex marriages. The voter initiative in California was known as Proposition 8.

The second case the court agreed to hear, United States v. Windsor, No. 12-307, challenges a part of the Defense of Marriage Act of 1996. Section 3 of the law defines marriage as between only a man and a woman for purposes of more than 1,000 federal laws and programs. (Another part of the law, not before the court, says that states need not recognize same-sex marriages from other states.)

The case concerns two New York City women, Edith Windsor and Thea Clara Spyer, who were married in 2007 in Canada. Spyer died in 2009, and Ms. Windsor inherited her property. The 1996 law did not allow the Internal Revenue Service to treat Windsor as a surviving spouse, and she faced a tax bill of some $360,000 that a spouse in an opposite-sex marriage would not have had to pay.

Windsor sued, and in October the federal appeals court in New York became the second court to strike down the 1996 law.

Arguments in both cases have been scheduled for late March, with decisions expected by June.

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