Joanna L. Grossman

The State of the Same-Sex Union: Part One in a Three-Part Series

By JOANNA L. GROSSMAN & EDWARD STEIN
Tuesday, July 7, 2009

There has been a whirlwind of activity on the same-sex marriage front in the past few months. Most notably, the number of states that permit same-sex couples to marry has tripled, from two to six.

This development capped off more than a decade of hard-fought wrangling over same-sex marriage that produced significant victories and losses for both advocates and opponents. The result is an odd patchwork of recognition and non-recognition for same-sex relationships -- a critical mass of laws firmly embracing legal recognition for same-sex couples juxtaposed with an even greater number that strongly denounce such recognition.

For reasons we will explain in a subsequent column, we are unlikely to see significant additional changes in the near term. It is thus a good time to take stock of the current landscape, explain its origins, and offer predictions about the future.

In this three-part series, we will deliver a "state of the nation" report on the rights of same-sex couples in the United States. In this column, we offer a brief history of the battle over the same-sex marriage -- from the first wave of cases in the 1970s in which the idea of same-sex marriage was broached and roundly rejected, through the most recent legislative and judicial developments that have made same-sex marriage a legal reality.

In Part Two, we will describe the current legal landscape for same-sex couples, which features a sliding scale of recognition rights in some states, alongside statutory and constitutional bans on such rights in others. Part Three will explore the state of the law regarding interstate recognition of same-sex marriage, focusing on the widespread adoption of anti-same-sex-marriage statutes and constitutional amendments at the state level. It will also consider some special legal problems for same-sex couples that are posed by this unique legal landscape.

The History of the Quest for Legal Recognition of Same-Sex Relationships

On May 18, 1970, Jack Baker and Michael McConnell went to the Clerk of the Court's office in Minneapolis, Minnesota to file an application for a marriage license. At the time, Baker was finishing his first year of law school at the University of Minnesota and was a leader of the university's gay student group; McConnell, who had been romantically involved with Baker for just under three years, had recently moved to the Twin Cities after receiving an offer to work as a librarian for the university. Shortly after they filed their application for a marriage license, it was denied. Undeterred, Baker and McConnell sued, seeking the license.

A similar set of events unfolded in Jefferson County, Kentucky a few months later. Marjorie Jones, a mother of three children, and Tracy Knight, her partner, were in love and wanted to marry. They applied for a marriage license, were refused, and filed suit. Also, in 1971, John Singer, a typist at the Equal Employment Opportunity Commission, and Paul Barwick, a Vietnam veteran and former state patrol dispatcher, applied for a marriage license in King's County, Washington but were refused. Several months later, they also filed a lawsuit challenging the state's refusal.

These three same-sex couples were rebels: They wanted to get married, they thought it was unjust that they were prohibited from doing so, and they filed lawsuits despite the social stigma associated with being gay and with publicly taking a position against the legal institution of marriage as then constituted. Some of these plaintiffs lost their jobs as a result. The university refused to hire McConnell because of his gay activism, and Singer was fired from his government job for speaking out on gay rights.

Despite the strongly-held convictions of these early plaintiffs, all three early attempts to achieve same-sex marriage failed -- typically for four standard reasons:

First, courts looked to the standard definition of marriage as between one man and one woman, citing dictionaries, custom, and the Bible, and invoking related statutory language that referred to "bride and groom," "husband and wife," and "the male" and "the female."

Second, courts justified the differential treatment of same-sex and different-sex couples on the ground that sexual relations between the latter, but not the former, had procreative potential. Relatedly, courts also argued that the differential treatment of same-sex and different-sex couples was justified because a heterosexual marriage provided a better context for raising children.

Third, courts denied that the fundamental right to marry extends to same-sex couples.

Fourth, in Singer's and Barwick's lawsuit, the plaintiffs argued that the prohibition of same-sex marriages was a form of sex discrimination because women were prohibited from doing something that men could do -- that is, marry women. However, the state responded that the prohibition of same-sex marriage treated men and women equally because neither men nor women could marry a person of the same sex.

In sum, none of the more than ten judges that considered challenges to prohibitions on same-sex marriage in the 1970s decided in favor of the same-sex couples. All of the plaintiffs' arguments were rejected.

Following the failed litigation of the 1970s, advocates of legal recognition for same-sex relationships focused in the 1980s, with some success, on alternative forms of recognition for relationships, and tried to get some subset of the rights and benefits of marriage without actually getting married. Several jurisdictions established domestic partnership registries that allowed same-sex couples to register as partners and, in some instances, get some limited benefits. Among the first such municipal domestic partner policies was one adopted by Berkeley, California in 1984 that allowed a city employee to get health benefits for his or her registered partner; several other municipalities followed over the next few years.

Additionally, through both litigation and legislation, same-sex couples tried to get access to some of the same rights and benefits as married couples. Such attempts often failed. Sometimes, however, such attempts succeeded. In the 1989 decision by the New York Court of Appeals in Braschi v. Stahl Associates Co., Miguel Braschi was threatened with eviction from a rent-controlled apartment that was in his partner's name after his partner died from complications due to AIDS. Braschi successfully argued that he should be treated as a "family member" of his deceased same-sex partner under housing law.

In the 1991 Minnesota Court of Appeals ruling in In re Guardianship of Kowalski, Sharon Kowalski suffered severe brain injuries due to a car accident; her partner, Karen Thompson, wanted to help with Sharon's physical therapy and to help make medical decisions for her, but Sharon's father tried to block Karen's involvement. The court held that the two women were a "family of affinity" under the law of guardianship and allowed Karen to be involved in the care and decision-making for Sharon.

The Beginning of the Backlash: Baehr v. Lewin and the Hawaii Problem

The next wave of couples' suing for same-sex marriage began in the early 1990s. Several same-sex couples in Hawaii sued the state for denying them the opportunity to marry. The trial court rebuffed their arguments for the same sorts of reasons prior courts considering same-sex marriage had: Marriage is defined as being between one man and one woman; there is no fundamental right to a same-sex marriage; prohibiting same-sex marriage protects the institution of marriage; and a marriage between one man and one woman provides a better environment for having and raising children than a same-sex marriage would.

However, in 1993, the Hawaii Supreme Court unexpectedly reversed the trial court's decision, finding that prohibitions on same-sex marriage violated the Equal Rights Amendment of the Hawaii Constitution, which protects against discrimination on the basis of sex. In so doing, the Court accepted the sex-discrimination argument that the plaintiffs had made only in a footnote in their brief. The case was remanded for a trial on whether the state could satisfy the very heavy burden of justifying the use of sex classifications in Hawaii's marriage law.

Although the Hawaii Supreme Court did not actually decide whether the prohibition on same-sex marriage was unconstitutional, the decision in Baehr was symbolic to both friends and foes of LGBT rights; it was a watershed in the quest for same-sex marriage and a catalyst for a conservative backlash. In the three-and-a-half years before the trial court rendered its opinion on remand, fifteen states passed laws that would refuse recognition to valid same-sex marriages from other jurisdictions, and Congress passed the Defense of Marriage Act ("DOMA"), which exempts states from having to give full faith and credit to same-sex marriages from other states, and defines marriage as between one man and one woman for purposes of federal law.

On remand, the Baehr trial court held that Hawaii's justifications for prohibiting same-sex couples from marrying failed to satisfy the heavy burden required of laws that make use of sex classifications. But before the appellate process played out, the Hawaii constitution was amended to give the legislature the power to limit marriage to relationships between one man and one woman. Thereafter, the Hawaii Supreme Court held that this amendment rendered Baehr's challenge to Hawaii's marriage law moot.

Vermont and the Advent of Civil Unions

This second-wave litigation produced its first full-fledged victory in Vermont in 1999, when the state's highest court ruled, in Baker v. State, that it was a violation of the Common Benefits Clause of Vermont's Constitution to deny same-sex couples the right to marry or the right to enter into a substantially comparable, and legally-recognized, relationship. The court's decision gave the legislature a "reasonable" period of time to "craft an appropriate means of addressing this constitutional mandate."

The Vermont legislature responded in 2000 by creating a novel legal status called a "civil union," which is identical to marriage in every respect other than name. Scores of same-sex couples, a majority from other states, entered into Vermont civil unions in the ensuing years.

Massachusetts and the Beginning of Same-Sex Marriage in the U.S.

The next major development in the quest for same-sex marriage came more than four years after the decision in Baker v. State. In November 2003, in Goodridge v. Department of Public Health, the Massachusetts Supreme Court held that a ban on same-sex marriages violates the state constitution's guarantees of equality and due process.

Denial of the right to marry, the Court explained, "works a deep and scarring hardship on a very real segment of the community for no rational reason." Moreover, the harm to gays and lesbians, the Court said, is not only the harm that comes from the denial of the benefits of marriage. It is also the harm of being deemed "second-class citizens" in the process.

The Massachusetts court gave its legislature time to conform its statutes to the ruling – just as the Vermont court had done – but, as explained in a previous column, it refused to accept the legislature's subsequent attempt to provide civil unions, rather than full marriage rights. The original Goodridge opinion had plainly held that gays and lesbians have the right to equality in marriage itself -- not to the "separate but equal" alternative of a marriage-like status with the benefits of marriage, but a different name.

Thus, in May 2004, on the 50th anniversary of the U.S. Supreme Court's landmark desegregation ruling in Brown v. Board of Education, same-sex couples began to marry in Massachusetts, a truly dramatic development in U.S. family law and civil rights law.

While Goodridge is a landmark opinion, it by no means represents the end of the same-sex marriage war. As we will explain in the next part of this series, there have been significant developments both in favor of, and opposed to, same-sex marriage, leaving same-sex couples to navigate a complicated legal terrain.


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

Edward Stein is Acting Dean, Professor of Law, and Director, Program in Family Law, Policy, and Bioethics at Cardozo Law School. His current research focuses on issues at the intersection of family law and sexual orientation, gender and the law.

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