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| Gay & Lesbian Advocates & Defenders | ||||
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Federal & State Anti-Gay, Anti-Marriage LegislationWhen GLAD filed suit in April 2001 on behalf of seven Massachusetts couples seeking the right to marry, it invigorated an ongoing national conversation about whether or not it is fair to deny gay and lesbian couples access to civil marriage licenses. Many people are thinking about this issue for the first time and it is a lot for many folks to grapple with and work through. We believe that as fair-minded people grapple with it, they will recognize the justice in our claim.Without that understanding, many policymakers have rushed to pass measures codifying discrimination in our marriage laws. So far, the people and legislators of Massachusetts have stood up in favor of basic principles of fairness and have defeated attempts to undermine our families and our basic constitutional guarantees of liberty and equality for all. In Massachusetts, we've seen up close how people need time to think through this through, and when they do, they think it's wrong to discriminate against gay people in civil marriage. Federal "Defense of Marriage" ActThe federal Defense of Marriage Act (DOMA) was signed into law in 1996. It creates a federal definition of marriage – one man and one woman – for purposes of all federal laws and programs. Additionally, the law encourages states to discriminate against marriages of gay and lesbian couples by attempting to exempt states from their legal obligation to respect all marriages. Of course, nothing stops a business, a local government employer or most other people from respecting marriages as marriages.The law does not ban marriages of same-sex couples; in fact, it acknowledges they will come to pass. But it does bar federal recognition of those marriages once they become legal in any state. This means that the lawful marriages of same-sex couples will be excluded from the protection of at least 1,049 federal laws and programs in areas ranging from tax to social security survivor rights to pension protections. Will Federal Discrimination Stand the Test of Time?Probably not. Once gay and lesbian couples have legally valid marriages, the Congress may repeal some or all of the discriminatory provisions it rushed to enact in 1996. Even Vice President Dick Cheney has stated that the determination of what counts as a valid marriage should be decided by the states. For over 200 years, the federal government has accepted state law definitions of marriage. Courts and legislatures in various states will address these questions on a case-by-case basis for many years to come, and the Congress should respect all marriages the states have licensed and certified.State Legislation Pro and ConIn a 3-year period between 1996 and 1998, 27 states passed some sort of law defining civil marriage in their state as the union of one man and one woman. After the initial rush of copycat legislation, the enthusiasm for such legislation has waned. A handful of other states have passed such laws in the last five years, bringing the total to 37 states that either define marriage and/or prohibit the recognition of marriages of same-sex couples. Some go further and attempt to ban same-sex couples from receiving legal rights and benefits associated with marriage. Alaska, Hawaii, Nebraska, and Nevada have even amended their constitutions to define marriage as solely the union of one man and one woman. Vermont reversed this trend, however, and in 2000 enacted civil union legislation for gay and lesbian couples and rejected constitutional amendments limiting marriage. California followed through on comprehensive domestic partner legislation in 2003, and states all over the country are considering new measures – albeit modest – to start meeting the needs of gay and lesbian families.Legal Implications of Anti-Gay ProposalsThe anti-gay, anti-marriage laws do nothing to protect anyone's marriage, but do hurt families of same-sex couples. Since same-sex couples are already denied the right to marry, these laws reiterate that families of some citizens are considered second-class. In addition, anti-gay advocates in many states have attempted to use anti-marriage laws to limit further the few existing protections for gay and lesbian families, restricting gay parents' custody of their own children, rescinding or challenging domestic partnership plans, and infringing on adoption protections. In short, both the federal and state anti-gay, anti-marriage laws will not likely stand the test of time because they are unfair and fail to promote any public good.Discriminatory Legislative Proposals CAN Be Stopped: Recent History in MassachusettsAnti-gay, anti-marriage proposals have been defeated in the Massachusetts legislature in 1999, 2001, and 2002.Proposed Legislation 1998 – 2001: Rep. John Rogers filed a series of unsuccessful bills in the MA House of Representatives that sought to exclude same-sex couples from marriage as well as related legal protections. After learning about the real lives of gay and lesbian families, Rogers decided not to reintroduce this legislation. Proposed Constitutional Amendment 2001 – 2002: An anti-gay group attempted to amend the MA Constitution by citizen initiative to make it impossible for same-sex couples to marry and to prevent the courts, the legislature, and cities and towns from extending any rights and protections associated with marriage to any unmarried couple. Thousands of Massachusetts residents stood up to tell the real stories of committed same-sex couples and their families. In the end, the legislature stopped the initiative in its tracks, acknowledging through their action the danger of putting minority civil rights to a popular vote. Current Proposals: The Increased Threat of Constitutional AmendmentsAmending the constitution – state or federal – is a solemn undertaking. It is far more difficult to amend the constitution than to pass ordinary legislation, precisely because it has major implications. Adding an anti-gay, anti-marriage amendment to the constitution would prevent any progress on opening civil marriage to include same-sex couples and could nullify existing laws that help gay and lesbian families. The constitution is not the place for sensitive matters of public policy. Once in place, a wrong-headed and wrong-hearted constitutional amendment can hurt many and take decades to fix. We must do all we can to stop these measures early.
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