Slate's Bizbox
explainer: Answers to your questions about the news.

What's the Legal Status of Gay Marriage?

Matt Alsdorf
Posted Thursday, Dec. 23, 1999, at 9:16 AM ET

The Vermont Supreme Court ruled this week that gay couples are entitled to the same "benefits and protections" as heterosexual married couples. Earlier this month, Hawaii's high court determined that the state was not required to grant marriage licenses to gays and lesbians. Why the different results? And what legal effect will the Vermont decision have on the rest of the nation?

Like virtually all states, Vermont and Hawaii have "equal protection" clauses in their constitutions that guarantee all citizens the same treatment under the law. (These clauses are similar to the equal protection provision of the U.S. Constitution's 14th Amendment, which was used to secure civil rights for racial minorities, women, and other groups.) In both states, gay couples sued, asserting that the ban on same-sex marriage deprived them of equal protection: They argued that it blocked their access to the same rights and obligations that heterosexual couples are granted through marriage, including health and pension benefits, inheritance rights, joint decision-making power, and shared parental and financial responsibilities.

In 1993, the Hawaii Supreme Court ruled that, indeed, denial of same-sex marriage amounted to discrimination on the basis of sex and sexual orientation. Unless the state could demonstrate to lower courts that it had a valid interest in denying gay marriages, continued discrimination would be unconstitutional. A state judge ruled in 1996 that the state had failed to meet this requirement, which seemed to pave the way for gay marriage. The state appealed, but before the case reached the Supreme Court again, Hawaii voters passed a constitutional amendment exempting marriage from the equal protection clause. Hawaii's Supreme Court had no choice but to throw out the gay couples' claims to marriage licenses.

With reasoning similar to that of the Hawaii courts, the Vermont Supreme Court determined that the legislature "was constitutionally required to extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law." (Vermonters have not passed an amendment like Hawaii's exempting marriage from the equal protection clause, although they could.) The Vermont Supreme Court left it to the legislature to decide whether to extend these rights to gay couples through state-recognized marriage or a new category of domestic partnership.

If Vermont recognizes gay marriages, the national ramifications will be immediate because all the states recognize marriages performed in other states. Gay couples would travel to Vermont to get married, and then upon returning home, demand that their states recognize the unions.

Anticipating this strategy, Congress passed the "Defense of Marriage Act" in 1996, declaring that states would not be compelled to recognize same-sex unions performed elsewhere. Since Hawaii's 1993 decision, 29 states have passed preemptive laws saying they would not accept gay marriages from other states.

The courts will have to decide whether these laws are constitutional. The U.S. Constitution requires each state to give "full faith and credit ... to the public Acts, Records, and judicial Proceedings of every other state." The Supreme Court has held that this "full faith and credit" provision covers divorce--otherwise, you might have to get re-divorced from your former spouse if you moved to a new state. If the Supreme Court extends the provision to cover marriage, the federal Defense of Marriage Act--as well as the state laws barring same-sex unions--would quite likely be deemed unconstitutional. If not, the issue would be left to each state to decide.

If Vermont declines to recognize gay marriage, it will have to define a new category of domestic partnership that provides precisely the same state protections and benefits as marriage. But this domestic partnership would not necessarily yield rights for gay couples from other states or from the federal government. Many federal benefits and responsibilities depend on the "marriage" classification, which has a privileged constitutional status that domestic partnership does not. Marriage is considered so fundamental a right, in fact, that it cannot be withdrawn from any citizens--even prisoners.

Although the wording of constitutional equal protection clauses varies from state to state, and Vermont's interpretation is not a binding precedent, judges often look to courts in other states for guidance on how to rule in similar circumstances. And the Vermont ruling provides a basis for the argument that the U.S. Constitution's equal protection clause should be interpreted to guarantee marriage rights for gays nationally. So, regardless of the Vermont legislature's course of action, gay rights advocates will use the ruling in other court battles.

Explainer thanks many Slate readers for suggesting this topic.

Next question?

Print This ArticlePRINTDiscuss this in The FrayDISCUSSEmail to a FriendE-MAIL
Share on FacebookPost to MySpace!Share with MixxDigg ThisShare with RedditShare with del.icio.usShare with FurlShare with Ma.gnolia.comShare with SphereShare with Stumble Upon
Matt Alsdorf is a Slate editorial assistant.
Join the Fray: our reader discussion forum
What did you think of this article?
POST A MESSAGE | READ MESSAGES

Highlights from the Fray:


Since the real issue has nothing to do with marriage, why not simply address the topic of financial fairness? We can simply treat everyone the same with no penalty for being married, single, divorced, childless, old, young, or gay.

This will eliminate the need for the gays to usurp the marriage vows that historically couldn't possibly have anything to do with them, and the straight population can stop having heart attacks over the issue. We can issue gold stars or blue ribbons to those families that continue to "do right" by their children even without a monetary reward from their fellow taxpayers. Gays have been helping to foot the bill for educating our children, so why shouldn't they be treated like everyone else. That should relieve the uptight from having to consider gays as a minority and, at the same time, keep the gays from having to whine about their position in life.

--Colleen

(To reply, click here.)


I am a 34-year-old gay male and I have been in a relationship for almost 12 years. I have never thought that gays should equate the word "marriage" to their relationship/bond with their partners. The straight world will always see the sacrament of marriage as a bond between a "bride" and a "groom." It's a silly thought (as well as an insult) to have two men or women playing both of those roles that have been a part of straight society for thousands of years.

Gays need to concentrate on getting the same partnership benefits that heterosexuals get out of marriage but under a name other than "marriage." How about "union"? We need to recognize that our gay relationships are different from straight relationships. Most significantly, they are same-sex relationships. Therefore our "union" or "commitment", should have its own name. Why not? Does this create a special right for gays? We get what we want out of it and the straight world is less threatened.

--Lawrence Cartledge

(To reply, click here.)


An unaddressed issue, and perhaps a more inflammatory one at that, is the fact that many states have anti-sodomy and sexual-indecency statutes that bar sexual conduct between consenting homosexual adults. Those statutes are rarely enforced and prosecutions very rare indeed, but the state courts and most particularly the United States Supreme Court have a long record of nearly unanimous support for states' rights in enacting such legislation.

--Casual lawyer

(To reply, click here.)


Two observations on the interaction between sodomy laws and gay marriage.

First, there has been a strong but steady trend away from consensual sodomy laws in the years since the Supreme Court decided Bowers v. Hardwick (the case which held that states could permissibly forbid sodomy if they wished to do so). In some instances, this has happened by legislative repeal of sodomy laws, and in other cases by virtue of court rulings based on state constitutions. Even the courts of Virginia (Virginia !!) are seriously entertaining such a challenge right now. So, while sodomy laws remain in the books in about 20 or so states, the potential conflict between those laws and gay marriage is one which gets less severe each passing year as more and more states conclude they have no basis regulating the private bedroom conduct of adult citizens.

Second, and perhaps even more importantly, consensual sodomy laws almost always exempt--either by their own terms, or by judicial construction--conduct engaged in by married persons.

One more general observations. Our federal system has often been praised because it permits states to be "laboratories" for legal change. One state may adopt an innovation and others may see how it works out. It would be a great service to the entire country for the Vermont legislature to go the whole way towards gay marriage so that other states can examine the consequences. I strongly suspect that it would be a successful experiment and that public opposition would soften once it was seen that the Vermont innovation does not lead to any disrespect for or weakening of traditional heterosexual marriage.

--Another Lawyer

(To reply, click here.)


Is there a slippery slope here? If we recognize same sex marriages, what is to stop polygamists from seeking recognition of their union(s)?

--Will

(To reply, click here.)


Re: slippery slope. I think you've overlooked the fact that the equal protection clause gives gays and lesbians grounds to challenge their exclusion from the right to marry because they are being excluded as a class of people from legal rights that others enjoy. In the case of polygamy, the illegality of multiple marriages is applicable to everyone and does not deny the right to marry (albeit once) to anyone. Equal protection probably could not successfully challenge anti-polygamy laws. Free exercise of religion would be a more plausible way to do that (as Mormons have tried in the past) and the U.S. Supreme Court has rejected that claim already.

--Becca

(To reply, click here.)


I think that Becca should look at the Supreme Court's criteria for a "protected class" under the Equal Protection Clause: Are gays a group that is a discrete and insular minority, politically powerless, is homosexuality an immutable characteristic, etc.?

If you believe that homosexuality is a behavior and that homosexuals can change that behavior, opposing the inclusion of homosexuals is not homophobia.

--Cato

(To reply, click here.)


Cato suggested that gays and lesbians are not a "protected class" and that it is error to apply the equal protection clause. I'd like to call attention to the three-tier system of scrutiny under equal protection which the U.S. Supreme Court has set up as precedent. Race is a suspect class that is subject to strict scrutiny--I was not implying that gays and lesbians were indeed a suspect class, there is no precedent for that that I know of. Gender cases are treated with intermediate scrutiny, less stringent than strict scrutiny. Cases challenging law on equal protection grounds that do not implicate gender or race are commonly held to a standard of reasonableness that is far more forgiving than strict or intermediate scrutiny.

This does not mean however, that other groups (such as gays and lesbians) are not afforded equal protection. The question then arises, is it reasonable to deny gays and lesbians the right to marry that others enjoy? I would answer no, others would say yes. Welcome to the realm of law as politics.

--Becca

(To reply, click here.)


The state should not use the same term that people of faith use to describe their union. For a great many people in this country, "marriage" is the religious union of a man and a woman.

The state certainly has a vested interest in promoting and protecting the heterosexual institution of marriage, but that can still be accomplished by removing the word "marriage" from our lawbooks and substituting the phrase "domestic partnership." Heterosexual unions would neither be threatened nor destroyed, and it would remove religion from the argument. Whether a legal domestic partnership becomes a marriage would be up to the church the individuals attend.

On this score, those who oppose granting domestic partnership status to lesbian and gay couples have an ethical obligation to argue secularly.

--Bill J.

(To reply, click here.)

Washington Post
The Washington Post
OPINIONS
Unsung Statesman
Marc Thiessen | By the time he left office, Jesse Helms had become a mainstream conservative.
David Broder: Unabashed Racist