A half-century of conflict over the rights of gay Americans has entered a new and, I suspect, final phase with the advent of same-sex marriage in the United States.
The long-term outcome is clear and inevitable: Same-sex marriage is here to stay. This is true even if Massachusetts changes its constitution to ban gay marriage, and even if the U.S. Supreme Court determines that other states and the federal government are free to disregard gay weddings already performed. Even an improbable holding by the Supreme Court that all U.S. gay marriages are invalid would only delay rather than change the result, because the United States will not be able forever to ignore people who were married in other countries.
The short-term product of this year’s legal drama is probably just as inevitable. We are entering a period of at least several years in which the rights and obligations of tens of thousands of people will be uncertain, with unpredictable and often unjust consequences.
By order of the state Supreme Judicial Court, same-sex couples started getting married in Massachusetts on May 17. Many thousands of couples are likely to wed in the Bay State before voters get their first chance, in November 2006, to change the state constitution to ban gay marriage.
Earlier this year, local officials in San Francisco; Portland, Ore.; New Paltz, N.Y.; and scattered other communities issued marriage licenses to more than 7,000 other couples, though it remains to be seen whether courts in those states, let alone elsewhere, will respect those unions.
Thus begins a huge social experiment. For the next several years, assertions by opponents that same-sex weddings threaten the institution of marriage will be tested. Same-sex partners will get married and will seek to raise their families, pay their taxes and relate to their spouses just like opposite-sex couples. Will the number of heterosexual marriages drop as a result? Will husbands and wives divorce en masse to seek legal union with people of the same gender? Will parents walk out on their children?
Of course not. By the time Massachusetts voters have an opportunity to shut off the same-sex marriage spigot, they will likely ask themselves why anybody would bother.
But that will not change the fact that 38 states already have laws or, in at least four instances, constitutional provisions, banning same-sex marriage. Many of those statutes, along with the federal Defense of Marriage Act (DOMA) signed by President Clinton in 1996, deny recognition of same-sex marriages performed in jurisdictions that permit them, as is now the case in Massachusetts.
This will set off a legal free-for-all. Consider some scenarios:
- A Massachusetts couple has a home, owned by one member, in Florida. Florida does not recognize same-sex marriages. The homeowner dies without leaving a will. Florida denies the spouse’s claim to the home, awarding it instead to a distant relative of the owner who is deemed to be next of kin.
- A New York couple gets married on Cape Cod. New York has no law regarding out-of-state same-sex marriages. The couple’s breadwinner dies. The survivor, who had taken out a life insurance policy on the breadwinner, seeks to collect. The insurance company denies the claim on the basis that the survivor is not a spouse and thus lacks an insurable interest in the breadwinner’s life. As an alternative case, assume the couple lives in Delaware rather than New York – Delaware explicitly prohibiting recognition of same-sex marriage.
- A San Francisco couple, married earlier this year, moves to Utah and breaks up. Utah refuses to grant a divorce because it considers the couple unmarried. The couple no longer qualifies as residents of California for divorce purposes, even if California recognizes the marriage performed in San Francisco early in 2004.
- A divorcing same-sex couple seeks to divide the breadwinner’s retirement account, which is the couple’s largest asset. The Internal Revenue Service treats the award to the other spouse as a taxable distribution because, under DOMA, the couple is not married for federal purposes and therefore cannot make a tax-free division through a Qualified Domestic Relations Order.
- A Canadian and an American marry in Ontario, one of three provinces where same-sex weddings occur today. The couple moves to Philadelphia to care for the American’s ailing parents. To resume her career, the Canadian seeks permanent resident status on the basis of her marriage to a U.S. citizen, but the application is denied because the marriage is not recognized.
- A same-sex married couple is involved in a car accident while traversing Ohio, which does not recognize such marriages. One of the couple is severely injured, but the hospital refuses to allow his spouse to make emergency medical decisions on the injured man’s behalf without a court order, citing the lack of a legally recognized relationship.
America’s first distinct homosexual communities began to evolve after World War I, as the country became more urban, and accelerated with the social changes that accompanied and followed World War II. This led to a government backlash. In 1953, President Eisenhower banned homosexuals from virtually all federal jobs. The FBI and police kept some homosexuals under surveillance, and police in many cities often raided gay bars and other gathering spots. Homosexual conduct was itself illegal in all states as the 1960s began.
The gay rights movement was born 35 years ago this month, when a police raid on the Stonewall Inn in New York City’s Greenwich Village triggered three days of rioting. Six years later, the federal government dropped its ban on gays in most civilian jobs. The AIDS crisis in the 1980s brought new visibility, sympathy and activism to the gay community.
As all this was happening, the Supreme Court was increasingly recognizing a personal right of privacy not explicitly mentioned in the U.S. Constitution. The court held in Griswold v. Connecticut, in 1965, that the right to privacy exists, and that it prohibited a state from banning the use of birth control by married couples. A unanimous Loving v. Virginia decision in 1967 found that the right to marry is “fundamental to our very existence and survival” and struck down laws in more than a dozen states that still prohibited mixed-race marriage. Roe v. Wade, in 1973, upheld a woman’s right to abortion, on privacy grounds.
This set the stage for the court to consider whether a state could ban homosexual sex. In Bowers v. Hardwick, the court ruled 5-4 in 1986 that Georgia’s prohibition of sodomy, as applied to homosexuals, was constitutional. Privacy, it seemed, had its limits. The character played by Julia Roberts in The Pelican Brief (1993) famously remarked about Bowers v. Hardwick that “The Supreme Court was wrong.”
It took only 10 more years for the court to agree. In last year’s Lawrence and Garner v. Texas decision, a five-member majority struck down laws against consensual homosexual sex between adults, explicitly reversing Bowers. Justice Sandra Day O’Connor concurred in the result without agreeing that Bowers was void.
Now that Massachusetts has joined the Netherlands, Belgium and the Canadian provinces of Ontario, Quebec and British Columbia in recognizing same-sex marriage, the Supreme Court will almost certainly address the issue soon.
The first key question is whether the U.S. Constitution requires other states to recognize same-sex marriage. A ruling that it does would effectively legalize gay marriage nationwide in spite of all the statutes now on the books. Only a constitutional amendment, which would require two-thirds approval in each house of Congress and ratification by three-quarters of the states, could prevent this. On the other hand, a decision that same-sex marriage need not be recognized outside the jurisdiction that performed it will create so much inter-jurisdictional chaos that, in my view, many states would quickly grant such recognition anyway, and most others would follow before too many years.
The second major question is whether DOMA is valid. In other words, can the federal government choose which state-authorized marriages it will accept?
Another question that the court may confront is whether state and federal governments can ignore marriages performed abroad. Much is potentially at stake. If the U.S. sacrifices this principle in order to resist same-sex marriage, what will happen if, for example, foreign governments refuse to recognize American marriages that cross religious, racial or ethnic lines?
I do not know how the Supreme Court will answer these questions. It looks as though they will be close calls either way. But I believe the ultimate outcome is preordained, because a decision like that in Bowers v. Hardwick, which seeks to hold back the tide of social change, eventually will be swept aside by that tide just as Bowers was swept aside last year.
I considered the possibility of same-sex marriage when I wrote Financial Self-Defense for Unmarried Couples in 1993. No jurisdiction in the world then recognized such unions. But the Hawaii Supreme Court had just indicated that it would approve such marriages – a move that was short-circuited by a subsequent change to the state constitution. Courts in Canada had recently struck down prohibitions on gays serving in the military, based on the same provisions of the country’s Charter of Rights and Freedoms that have since given rise to same-sex marriage in Canada.
“The forces that change our society move in fits and starts, the way an earthquake or volcano abruptly rearranges the landscape,” I wrote. The wave of same-sex marriages that rolled across the country this year was, I believe, just such an eruption. But the lava still must cool, and it may take some time before the final shape of the landscape is evident. In the meantime, committed same-sex couples will have to manage their affairs very carefully, to cope with the enormous uncertainty in today’s law and to avoid being hurt while aftershocks rumble across the legal terrain.