2003 and 2004 have seen important developments in homosexuals’ rights
in the United States and Canada. Together these events have pushed
marriage to the forefront of the gay civil rights movement, and also
invigorated those opposed to legalizing gay marriage.
Supreme Court Strikes Down "Homosexual Conduct" Laws
On June 26th 2003, the U.S.
Supreme Court struck down
section 21.06 of the
penal code, which had criminalized "deviate sexual intercourse
with another individual of the same sex." The Lawrence v. Texas
opinion, issued by Justice Anthony Kennedy, struck down similar
so-called anti-sodomy laws in the remaining 13 states that had them.
It also overruled
Bowers v. Hardwick, a 1986 U.S. Supreme Court opinion that cited
moral disapproval as a legitimate reason for states to regulate
Legal scholars think that the decision could have implications for
other gay civil rights issues, including marriage. Jeffrey Rosen wrote
in the New York Times that "by ruling out moral disapproval as a
permissible basis for legislation, Kennedy, in the eyes of liberal
activists and social conservatives alike, made it more likely that
lower courts will come to recognize a constitutional right to gay
Canadian Provincial Courts Recognize Same-Sex Marriage
Also in 2003, two provinces in Canada legalized gay marriage. On June
10th, the Court of
Appeal for Ontario ruled that defining marriage as strictly a
male-female union was contrary to
Canada's Charter of
Rights. On July 8th, the
Court of Appeal followed suit, and proclaimed legal marriage for
same-sex couples available immediately. The Canadian provinces became
the third and fourth governments in the world, following the
Belgium, to give
gay and lesbian couples the right to full civil marriage. Numerous
other countries recognize same-sex "domestic partnerships" or "civil
unions" in law, though these arrangements do not generally carry the
same legal and economic privileges as marriage. These countries
include Croatia, Denmark, Finland, France, Germany, Hungary, Iceland,
Norway, Portugal, and Sweden.
Battle Brews Over Same-Sex Marriage in United States
Most gay civil rights organizations in the United States, including
the Human Rights Campaign, are
seeking full civil marriage rights for homosexuals rather than a
separate recognized status such as domestic partnership or civil
union. The organizations say that a legally recognized, non-marriage
status would be inferior because it would continue to deny certain
rights to same-sex partners, such as the right to make decisions on a
partner's behalf in a medical emergency and the right to petition for
a partner to immigrate. For more information on efforts to achieve
civil marriage rights for same-sex couples, see the
Partners Task Force for Gay and Lesbian Couples site.
In November 2003, the
Supreme Judicial Court of Massachusetts ruled in
Goodridge et al. v. Department of Public Health that same-sex
couples must be given full civil marriage rights under the state
constitution. Then in January 2004, in response to a query from the
state’s senate about whether allowing gays to form civil unions would
be sufficient, the court upheld its ruling and rejected civil unions.
President Bush responded that the ruling was “deeply troubling."
The ruling allowing same-sex marriage will become Massachusetts law in
May of 2004. Many predict that the state
respond by trying to pass a constitutional amendment banning the
recognition of same-sex marriage. Such an amendment would have to be
ratified by both houses of the legislature as well as by voters. This
kind of legislative response would follow a pattern that has occurred
in many states. In1993, the
Supreme Court of Hawaii became the first state supreme court to
rule that it was unconstitutional to bar gay couples from marriage.
State legislators quickly responded by passing a constitutional
amendment banning the recognition of gay marriages. Since then, a
total of 37 states have passed laws declaring that they would not
recognize same-sex marriages. In 1996 the U.S. Congress passed the
Defense of Marriage Act, which announced that those laws were
constitutional and declared that "the word `marriage' means only a
legal union between one man and one woman."
Aiming to bar marriage to homosexuals once and for all, on May 21st,
2003, members of the U.S. House of
Representatives proposed an
amendment to the constitution stating that "marriage in the United
States shall consist only of the union of a man and a woman." Amending
the Constitution is difficult, as it requires passage by two-thirds of
the Senate and House and ratification by three-fourths, or 38, of the
states. In his January 20, 2004
State of the Union speech President Bush stopped short of
endorsing the constitutional amendment, but affirmed his support for
the 1996 Defense of Marriage Act, and said that “if judges insist on
forcing their arbitrary will upon the people, the only alternative
left to the people would be the constitutional process."
- Rose Arce,
Massachusetts Court Upholds Same-Sex Marriage, CNN, Febuary
Threat to Marriage from the Courts, Republican Policy Committee, U.S. Senate,
(July 29, 2003).
- Charles Hurt,
Republicans to Force Issue of Gay ‘Marriage,’ The Washington
Times, (September 3, 2003).
2003 issue of Human Rights Magazine contains articles on lesbian
and gay marriage, parenthood, and workplace rights.
- Andrew Sullivan,
the Groom, The New Republic, (August 28, 1989).
HRC Statement on Massachusetts High Court Opinion, Human
Rights Campaign, February 4, 2004.
Same-Sex Marriage: A History of the Law,