Gay Marriage Showdowns
CQ Researcher
By Kenneth Jost
September 26, 2008

Will voters bar marriage for same-sex couples?

Introduction

John Martell and Rob Peters are among some 5,000 same-sex couples who married in California last June in the first week after a state Supreme Court ruling went into effect holding that gay couples in the state have a constitutional right to marry. (AFP/Getty Images/David McNew) The California Supreme Court gave gay rights advocates a major victory in May, ruling the state's constitution guarantees same-sex couples the same marriage rights as opposite-sex pairs. Thousands of same-sex couples from California and around the country have already taken advantage of the decision to obtain legal recognition from California for their unions. Opponents, however, have placed on the state's Nov. 4 ballot a constitutional amendment that would deny marriage rights to same-sex couples by defining marriage as the union of one man and one woman. Similar proposals are on the ballot in Arizona and Florida. The ballot-box showdowns come as nationwide polls indicate support for some legal protection for same-sex couples, but not necessarily marriage equality. In California, one early poll showed support for the ballot measure, but more recently it has been trailing. Opposing groups expect to spend about $20 million each before the campaign ends.

Overview

Jennifer Pizer and Doreena Wong met on their first day at New York University Law School in 1984. They graduated in 1987 and moved to California together three years later.

Jenny and Doreena were still together on May 15, 2008, when the California Supreme Court issued its stunning, 4-3 decision establishing a constitutional right to marriage for same-sex couples in the state. As one of the Lambda Legal Defense and Education Fund lawyers in the case, Pizer spoke at a press conference in San Francisco after the decision was released and then flew home to Los Angeles for a rally in the heart of gay West Hollywood.

"You're not going to do anything funny, are you?" Doreena asked Jenny in the car as they drove to the rally. Pizer feigned ignorance even as she was thinking that the event was the perfect time to pop "the question."

So, as she finished her remarks, Pizer looked down toward her partner's face in the crowd and said, "Now, I'd like to ask a question I've waited 24 years to ask: Doreena Wong, will you marry me?"

"Yes, of course," Wong replied. Standing at the microphone, Pizer relayed the answer to the cheering crowd: "She said yes!"

Kate Sheppard and Kory O'Rourke celebrate with their children after obtaining a marriage license at San Francisco City Hall on June 17, 2008. A California Supreme Court ruling in May made California the second state, after Massachusetts, to legalize same-sex marriage. Opponents quickly gained approval to put a state constitutional amendment on the Nov. 4 ballot that would allow marriage in California only "between a man and a woman." (Getty Images/Justin Sullivan) Television cameras recorded the moment, but Pizer admits months later that she has yet to see the full video clip. For even as gay rights advocates are celebrating the victory — and Jenny and Doreena are planning their Oct. 5 wedding in Marin County — opponents of gay marriage are working hard to reverse the state court's decision.

Less than three weeks after the decision, opponents won legal approval to put a state constitutional amendment on the Nov. 4 ballot that would allow marriage in California only "between a man and a woman." If accepted by a simple majority of the state's voters, Proposition 8 would prohibit marriage for gay and lesbian couples in California and bar recognition of same-sex marriages from other states as well.

"Marriage has always been understood as the union of one man and one woman by California citizens and by other people in the country," says Mathew Staver, founder and chairman of Liberty Counsel, a Christian public-interest law firm, and one of the lawyers who argued against gay marriage before the California Supreme Court. "That provides the best environment for society."

"We absolutely agree that marriage is a special word for a special institution," Pizer responds. "We disagree that the social institution should be available only in a discriminatory manner and that it serves any social purpose to exclude gay and lesbian couples."

The debate over the ballot measure has not deterred but in fact has encouraged gay and lesbian couples in California to get to the altar — or to city hall. By one estimate, some 5,000 same-sex couples got married in California within the first week after the court ruling became effective on June 17. The first-week spike receded, but the weddings are continuing — spurred by the widespread assumption that marriages performed before Nov. 4 will remain valid even if Proposition 8 is approved.

Hollywood celebrities have been among those tying the knot, including TV talk show host Ellen de Generes and ex-"Star Trek" actor George Takei. De Generes wed Portia de Rossi, her girlfriend of the past four years, in an intimate, picture-book ceremony at their Beverly Hills home on Aug. 16. Takei and his longtime partner Brad Altman exchanged self-written vows in a more lavish ceremony at the Japanese American National Museum in downtown Los Angeles on Sept. 14. "May equality long live and prosper," Takei said as he left the ceremony amid a horde of photographers and well-wishers. (continued below)

Most of the newlyweds, however, are non-celebrities, many of them in long-term relationships that had already been registered under a 2003 California law as domestic partnerships with nearly complete marriage-like rights and responsibilities. "There's almost no change" over domestic partnership status, explains David Steinberg, news desk copy chief at the San Francisco Chronicle, who married his longtime partner Gregory Foley in July. Steinberg says he and Foley, a nurse at Kaiser Permanente, decided to get married anyway "because they might take it away."

The state high court decision made California the second state, after Massachusetts, to allow marriage for same-sex couples. The Supreme Judicial Court of Massachusetts issued a 4-3 decision in November 2003, holding that the state had "no constitutionally adequate reason" for denying same-sex couples the legal benefits of marriage. The court gave the legislature 180 days to respond but later issued an advisory opinion saying that civil union status would not be an adequate substitute for marriage. When the legislature failed to act by the deadline, the high court decision took effect, and same-sex marriages began in Massachusetts on May 17, 2004.

The California Supreme Court ruled similarly but more directly that the state's constitution guarantees a "fundamental right to marry" to "all Californians, whether gay or heterosexual, and to same-sex couples as well as opposite-sex couples." The majority opinion — written by the Republican-appointed chief justice, Ronald George — specifically rejected civil union or domestic partnership status.

The ruling invalidated a statutory initiative to define marriage as between one man and one woman approved by slightly over 61 percent of the state's voters as Proposition 22 in March 2000. Gay marriage opponents had already begun circulating an initiative to write the "one-man, one-woman" definition of marriage into the state constitution. By June 2, they had submitted petitions with approximately 1.1 million signatures — sufficient for the secretary of state to certify the proposed constitutional amendment for the Nov. 4 ballot.

The state Supreme Court added to the urgency of the opposition by declining to stay its decision pending the Nov. 4 vote. Same-sex marriages began in California on June 17. The first marriage license in San Francisco went to two longtime lesbian activists, Del Martin and Phyllis Lyons, who had been together for more than 50 years. San Francisco Mayor Gavin Newsom officiated at the ceremony. Martin died 10 weeks later — at age 87.

Besides Massachusetts and California, eight other states and the District of Columbia permit some legal recognition for same-sex couples, including four that permit civil unions with virtually the same rights and responsibilities as marriage. On the opposite side, 26 states have constitutional amendments that prohibit marriage for same-sex couples, and another 17 have similar statutory bans. In addition, the federal Defense of Marriage Act — known as DOMA — prohibits federal recognition for same-sex marriages. The 1996 law also provides that states need not recognize same-sex marriages from other states.

Massachusetts recorded approximately 11,000 same-sex marriages in the three years after the state high court ruling, according to demographer Gary Gates, a senior research fellow at the Williams Institute, UCLA School of Law. He says an exact count is not possible in California because marriage licenses are no longer recording the parties' sex, but a projection based on the increased number of marriages in the months after the state high court ruling indicates more than 5,000 same-sex couples married in the first week after the decision.

All told, Gates and his colleagues at the institute — which studies sexual-orientation policy and law, primarily funded by a gay philanthropist — estimate that 85,000 same-sex couples have taken advantage of recognition provisions in those states permitting that status. But a higher percentage of same-sex couples are opting to marry than are registering for civil union or domestic partnership. (continued below)

Supporters of marriage equality say the growing number of same-sex couples in legally protected relationships is eroding opposition to gay marriage. "We're seeing a growing public understanding that ending gay couples' exclusion from marriage helps families and harms no one," says Evan Wolfson, executive director of Freedom to Marry, self-described as a gay and non-gay partnership advocating marriage rights for same-sex couples.

Opponents disagree. They point to the gay marriage bans already enacted as the better gauge of public attitudes on the issue. "Supporters of same-sex marriage have a real uphill climb if they hope to undo what has been accomplished in the past 10 years by supporters of traditional marriage," says Peter Sprigg, vice president for policy at the Family Research Council, a Christian organization based in Washington, D.C., promoting traditional marriage.

An initial poll in California indicated the ballot measure was ahead, but statewide surveys in August and September showed the proposition trailing by at least 14 percentage points. Two other states — Arizona and Florida — will be voting on similar constitutional amendments on Nov. 4. Arizona's measure needs a majority vote; Florida requires a 60 percent vote for a state constitutional amendment.

In addition to those three ballot measures, Arkansans will be voting on a statutory initiative to prohibit unmarried couples — whether same-sex or opposite-sex — to adopt or take foster children. The initiative was proposed after a regulation barring adoption or placement with same-sex couples was overturned in court.

An anti-gay protester demonstrates against same-sex marriage during the 38th annual LA Pride Parade on June 8, 2008, in West Hollywood, Calif. Constitutional amendments that would deny marriage rights to same-sex couples are on the ballot in Arizona and Florida, as well as California. (Getty Images/David McNew) As the debates over same-sex marriage continue, here are some of the major questions being discussed:

Should same-sex couples be allowed to marry?

George Gates and Brian Albert met in 1991 when they both worked at the Human Rights Campaign, a gay rights advocacy organization. They held a big commitment ceremony at the posh Jefferson Hotel in Washington, D.C., in 1996 and, five years later, a small wedding on Cape Cod in Massachusetts.

With both of them still in Washington — now working for other nonprofit groups — Gates and Albert get no tangible benefits from their Massachusetts marriage license. But Gates says he and Albert viewed it as a matter of equal rights to take advantage of the Bay State's welcoming attitude toward gay couples. "We did feel that our relationship was no different from an opposite-sex couple," Gates says, "and we felt we were entitled to the same benefits and responsibilities as they are."

Opponents counter that gay marriage amounts to a redefinition of an institution created by God and universally understood in opposite-sex terms until the recent gay marriage movement. "Never before have we had such a serious effort to make such a profound change to the institution of marriage," says Lynn Wardle, a professor at Brigham Young University Law School, which is operated by the Church of Jesus Christ of Latter-day Saints — the Mormons.

The opposing sides disagree more concretely about the effects that legal recognition of same-sex relationships has or would have on heterosexual marriage, on children and on gay men and lesbians themselves. Opponents say gay marriage will harm the institution of marriage, hurt children and have no significant effect for same-sex couples. Supporters of gay marriage say legal recognition will promote stable relationships for same-sex couples, benefit children in same-sex families and have no effect whatsoever on opposite-sex marriages.

Liberty Counsel's Staver, who is also dean of the School of Law at Liberty University, the Lynchburg, Va., school founded by the late televangelist Jerry Falwell, calls same-sex marriage "a huge, unknown sociological experiment done . . . with no understanding of the implications on our children and our society." Wardle and other opponents say recognition of same-sex marriages will contribute to a further decrease in the percentage of people who are married.

Wolfson of Freedom to Marry bluntly disagrees. Same-sex marriage "is not going to change anything" for heterosexual marriages, he says. Gay author Jonathan Rauch goes further to argue that recognizing gay marriage would strengthen the institution overall. "America needs more marriages, not fewer," Rauch wrote in a recent op-ed article, "and the best way to encourage marriage is to encourage marriage, which is what society does by bringing gay couples inside the tent."

Opponents also argue that heterosexual marriages are the best environment for raising children. "Same-sex marriage says as a matter of policy moms and dads are irrelevant to the raising of children," Staver says. In like vein, the pro-Proposition 8 Campaign for Families and Children says on its Web site, "From the commitment of a man and woman in marriage comes the best opportunity for children to thrive."

Gay and lesbian advocacy groups cite studies by, among others, the American Academy of Pediatrics to argue that children raised in families with gay or lesbian parents fare as well overall as children raised in opposite-sex households. "All the evidence and common sense arguments indicate that this will help children who are being raised by gay families without hurting other children at all," says Wolfson.

Opponents also say, some more bluntly than others, that same-sex couples are not entitled to marriage because so many couples — particularly gay men — have short-lived, sometimes non-monogamous relationships. "Whether we like it or not, a big part of the gay agenda for decades has been to repudiate what are regarded as overly restrictive expectations of monogamy and sexual fidelity," University of Pennsylvania Law School Professor Amy Wax wrote in an online debate sponsored by the Washington-based Federalist Society, a prominent conservative organization for lawyers.

Gay marriage advocates counter that allowing marriage for same-sex couples would actually help stabilize their relationships. "Marriage advocates argue that marriage provides a mechanism and incentive to form more stable unions," Williams Institute researcher Gates says. "If that's true, then you would expect the same effect among gays and lesbians."

Apart from the individual points of disagreement, Wardle insists that supporters of traditional marriage should not be forced to prove the case against gay marriage. "When you have a proposal to redefine a basic social institution, the burden of proof is on those who advocate a change," Wardle says.

Anti-gay religious protesters picket at the marriage ceremony of Robin Tyler and Diane Olson, in Beverly Hills, Calif., on June 17, 2008. The two women were plaintiffs in one of the lawsuits that led to the overturning of California's gay marriage ban in May. (Getty Images/David McNew) "Both sides agree that marriage is a powerful institution," Gates rejoins. "Opponents make the argument that we have to be so cautious. Proponents say that's exactly why this is important. This is an important social institution, and you're leaving gay people out of it."

Should state constitutions prohibit marriage for same-sex couples?

The anti-gay organization Focus on the Family dispatched its vice president for public affairs, Ron Prentice, to California in 2003 to launch and become executive director of the affiliated California Family Council. Now, as chairman of the Protect Marriage/Yes on Proposition 8 campaign, Prentice is helping lead the effort to overturn the California Supreme Court's gay marriage ruling by amending the state constitution to define marriage as only "the union of one man and one woman." "We are going to change the constitution and say on Nov. 4, 'Judges, you can't touch this,' " Prentice says.

Gay marriage opponents have enjoyed great success with the strategy. Constitutional amendments limiting marriage to opposite-sex couples have been approved by voters in 26 states, which together represent about 43 percent of the U.S. population. Hawaii voters approved an amendment in 1998 authorizing the legislature to limit marriage to opposite-sex couples. Only once — in Arizona in 2006 — have voters rejected an anti-gay marriage amendment.

Supporters say Proposition 22 represents a legitimate political response to the state high court ruling. "A victory in California will not only protect marriage," the Alliance for Marriage, in Merrifield, Va., says on its Web site, "but will send a strong democratic rebuke by voters to radical, activist groups who've used the courts" to try to gain recognition for same-sex couples.

Gay marriage supporters, however, say the tactic is antithetical to American democracy. "The whole idea of amending constitutions to fence out groups of people is yet another debasement of American fundamentals," says Freedom to Marry's Wolfson. "That is a radical idea: the idea that you amend constitutions to carve out a group of people, shove them outside, and say they can't go to the legislature, that they are permanently treated as second class by the constitution where they live."

Overall, state courts have been responsible for the most dramatic gains realized so far by advocates of legal recognition of same-sex relationships. The Vermont Supreme Court in 1999 became the first state high court to require marriage-like rights for same-sex couples; the state legislature enacted a civil union law five months later. The Supreme Judicial Court of Massachusetts effectively required recognition of gay marriage with a November 2003 ruling that took effect six months later. Opponents of the Massachusetts ruling have tried but failed to get the state legislature to put a constitutional amendment before the voters to overturn the decision.

Gay marriage opponents say the California Supreme Court invited retaliation with a decision that not only nullified the 2000 ballot measure but also used the state constitution's equal-protection clause to require the highest level of scrutiny for any laws discriminating on the basis of sexual orientation. Wardle calls the ruling "a very clear example" of judges "openly using their position to promote their political preference."

Gay marriage supporters had failed to match their victory in Massachusetts until the California ruling — suffering defeats in closely watched cases in New York and Washington. "To their credit, a number of state supreme courts are behaving more judiciously," Wardle says. But gay marriage supporters are hoping the California ruling may influence supreme court justices in two other states — Connecticut and Iowa — with pending marriage cases. "The California Supreme Court is recognized as by far the most influential state high court in the country," says Lambda Legal's Pizer.

In California, opponents of Proposition 8 won a significant tactical victory with the decision by Attorney General Jerry Brown to list the measure's title on the ballot as, "Eliminates Right of Same-sex Couples to Marry." Prop. 8 supporters tried but failed to get a state court judge to order a change in what they called "an inherently argumentative" title.

Prop. 8 opponents are using the title to frame their campaign message. "We think it's always wrong to be voting on taking away people's rights," says Dale Kelly Bankhead, statewide campaign manager for Equality California/No on Proposition 8.

In a later skirmish, Prop. 8 opponents tried but failed to block the initiative from the ballot. In a petition to the state Supreme Court, they argued that the measure amounted to a "revision" of the state constitution that — under the constitution — could not be put on the ballot without a two-thirds vote of the legislature. Prop. 8 supporters called the lawsuit a "desperate" effort to avoid a vote. The court unanimously declined to hear the request, but the issue could be revived if the measure passes in November.

Should states recognize same-sex marriages from other states?

A one-page legal memorandum that New York Gov. David A. Paterson's legal counsel David Nocenti sent to state agency directors on May 14 quietly handed gay marriage supporters a major victory. Following up a ruling by a state appellate court in February, Nocenti directed state agencies to recognize same-sex marriages from other jurisdictions — a list that then included Massachusetts and five countries: Belgium, Canada, the Netherlands, South Africa and Spain.

Nocenti made no announcement of the directive — issued, by coincidence one day before the California Supreme Court's ruling. But three days later Paterson disclosed the move in a videotaped message to the annual dinner of the Empire State Pride Agenda, a gay rights advocacy group. Paterson, who had supported unsuccessful bills in the state legislature to legalize same-sex marriage, called the directive "a strong step to marriage equality."

The possibility that states would either choose or be required to recognize same-sex marriages from other states has been a major concern of gay marriage opponents ever since a Hawaii court's preliminary approval of an ultimately unsuccessful gay marriage suit in 1993. Gay marriage opponents included a provision in the federal Defense of Marriage Act (DOMA) in 1996 strengthening states' discretion to refuse to recognize same-sex marriages. At the same time, they began building a firewall against same-sex marriage by pushing for gay marriage bans in individual states.

The United States' federal system leaves marriage laws generally to states — with the inevitable consequence of differences from state to state. For example, some states permit and others prohibit marriages between first cousins.

Northwestern University law Professor Andrew Koppelman, an expert in an area known as "conflict of laws," says state courts over time have developed some general rules for when to recognize out-of-state marriages that would not be valid within their own state. In general, Koppelman says, states recognize marriages for people who travel through or move to a state with laws otherwise precluding legal status for the union. But states will not recognize a marriage for residents who go to another state to circumvent the state's law — especially if the law reflects a strong public policy.

Gay marriage opponents say the gay marriage bans fit that situation. "You don't have to recognize that status," Brigham Young Professor Wardle says, referring to a same-sex marriage from another state. "It's up to the state to choose for itself what domestic status it will recognize."

Koppelman — who supports same-sex marriage — says, however, that the state bans are "badly drafted" and ignore the real-world situations that will inevitably arise as same-sex couples travel or move from the state where their marriage was performed. "A blanket non-recognition rule is absolutely loony," Koppelman says.

Courts in two non-gay marriage states have already bowed to states that grant legal recognition to same-sex couples. In June, the Virginia Supreme Court ruled that Vermont rather than Virginia courts have jurisdiction over a custody dispute between two former lesbian partners following the dissolution of their Vermont civil union. Lisa Miller, who gave birth to a daughter during the civil union and moved to Virginia after the dissolution, had sought to block visitation rights that a Vermont court had granted to her former partner, Janet Jenkins. In an earlier decision, the federal appeals court for Oklahoma invalidated a state law refusing to recognize an out-of-state, court-approved adoption by a same-sex couple.

Both courts said that the Constitution's "Full Faith and Credit Clause" required the state court to recognize court judgments from other states. Koppelman notes that despite widespread misunderstanding, the constitutional provision does not apply to the more common instances that do not involve litigation already in progress.

The California gay marriage ruling heightened the stakes for both sides because the state has no residency requirement to be married. Massachusetts had been enforcing a 1913 law that barred marriages for out-of-state residents if the union would not be recognized in their home states. But the state repealed the law in August. As a result, businesses in Massachusetts and California are now actively encouraging same-sex couples to come to their states to be wed.

Gay marriage opponents still maintain that states can enforce bans against recognizing same-sex unions from other states. "It's contrary to the strong public policy in those states," says the Family Research Council's Sprigg.

Koppelman disagrees. "Same-sex marriage ought to be, as a general matter, recognized," he says. But gay marriage supporters are sufficiently concerned about their prospects that they are urging same-sex couples not to initiate legal challenges to the state bans at this time.

*The Norwegian Parliament completed approval of a gay marriage law on June 17; the law will take effect on Jan. 1, 2009.

Background

Coming Out

The history of same-sex relationships is long, but the issue of legally recognizing those relationships is of recent origin. Up until the mid-20th century, gay and lesbian couples in the United States generally kept a low profile politically and even socially. An outbreak of repressive laws and policies dating from the 1920s helped give rise to a gay rights movement and by the 1970s to a self-identified gay and lesbian community. Marriage, however, was not a priority or even a widely agreed on goal until the AIDS epidemic and the so-called lesbian baby boom of the 1980s prompted many gay men and lesbians to view legal recognition of their relationships as a practical necessity.

Male couples and female couples can be found in history and literature from ancient times to the present. In the United States, same-sex couples formed part of the gay subcultures present but only somewhat visible in many major cities from the turn of the 20th century. Gay and lesbian couples generally drew as little attention to themselves as possible. As one example, the 1993 book Jeb and Dash recounts through posthumously published diaries the secret love affair between two government employees in Washington from 1918 to 1945.

The federal government and many state and local governments began cracking down on homosexuals during the period between the two world wars. "Sexual perverts" were barred from entering the country and were made subject to exclusion from the military. Disorderly conduct and anti-sodomy laws were used to break up gay organizations and arrest individuals looking for or engaging in gay sex.

After the repeal of Prohibition in 1933, gay bars could still be shut down through license suspensions or revocations. The repressive atmosphere increased after World War II as homosexuals came to face the same kind of persecution as suspected communists. The historian David K. Johnson suggests that more federal employees lost jobs because of suspected homosexuality during what he terms "the lavender scare" than were dismissed because of suspected communist leanings.

Threatened in their workplaces and gathering places, gay men and lesbians in the 1950s formed the forerunners of the present-day gay rights movement. The gay Mattachine Society and the Daughters of Bilitis both adopted assimilationist stances: no garish costumes, no lavish parades. In 1965, however, a fired government astronomer, Franklin Kameny, staged the first "gay rights" picketing outside the White House, aimed at reversing policies generally barring homosexual from federal employment. Then in 1969 the gay patrons of the Stonewall Inn in New York City rose up in protest after a police raid on the Greenwich Village bar. The disturbance attracted little attention in the straight world but quickly became a rallying point for a newly assertive gay and lesbian community.

Marriage was not high on the community's agenda, however. Many other issues were more pressing: pushing for gay rights ordinances, fighting employment bans and seeking to repeal anti-sodomy laws. In any event, many gay and lesbian activists actively opposed marriage, as Yale University historian George Chauncey recounts. Gay liberation celebrated sexual freedom, not committed relationships. And many lesbians viewed marriage as an inherently patriarchal institution to be reformed (or even abolished), but certainly not to be imitated.

The activists' views should not be overemphasized, Chauncey cautions. "Most lesbians and gay men across the country looked for a steady relationship," he writes. Indeed, the Metropolitan Community Church, a gay congregation formed in 1968 in Los Angeles, began blessing same-sex unions at its creation and performed 150 marriages in its first four years. In addition, same-sex couples in Minneapolis and Louisville, Ky., filed lawsuits in 1971 seeking to win the right to marry. Courts in both cases said marriage was only for opposite-sex couples, even though the state laws did not say so. To fill in the gap, 15 states passed laws from 1973 to 1977 limiting marriage to heterosexual couples.

The AIDS epidemic brought gay men face to face with the consequences of legally unrecognized relationships. The illness or death of a "longtime companion" became even more painful when hospitals, funeral homes or government agencies refused to give any regard to the relationship. Medical costs and medical decision-making were difficult issues as long as the patient lived; at death, many survivors had bitter conflicts with their deceased lover's "real" family over funeral arrangements and disposition of property.

Meanwhile, the growing interest in childrearing also focused attention on the disadvantages of legally unrecognized relationships. Gay men and lesbians who had children from previous opposite-sex marriages typically faced difficulties in winning custody or sometimes even visitation rights. As historian Chauncey explains, the lesbian baby boom of the 1980s "represented something new: a generation of women who . . . no longer felt obliged to marry a man in order to have a child." A biological mother's relationship to her child was not legally difficult, but her partner could gain a legal relationship only through a cumbersome second-parent adoption. Moreover, couples who split up had no assurance that courts would respect or enforce agreed-on custody and visitation rights.

Debating Marriage

Marriage gradually moved toward the top of the gay rights agenda in the 1990s as dissenting views within the GLBT (gay, lesbian, bisexual, transgender) community were either transformed or suppressed. An initial victory in Hawaii, however, resulted in a major setback with congressional passage of the federal Defense of Marriage Act in 1996. DOMA limited federal status to opposite-sex couples and buttressed states' prerogatives to refuse to recognize same-sex marriages from other states. Gay rights advocates' later successes in winning civil unions in Vermont in 1999 and marriage in Massachusetts in 2003 were offset by losses in other state courts and a new flurry of so-called mini-DOMAs approved by voters in the 2004 election cycle.

For gay rights advocates, Hawaii ended as a ballot-box defeat after a potential judicial victory. In 1993, the Hawaii Supreme Court held the state's ban on same-sex marriage presumptively unconstitutional and ordered a trial for the state to try to show a compelling interest to justify the restriction. The trial opened in Honolulu just as the Senate was about to complete action on DOMA in Washington. The judge ruled for the gay couples who brought the suit, but the state high court kept the appeal under advisement long enough for voters to approve a state constitutional amendment in 1998 that authorized the legislature to limit marriage to opposite-sex couples. The next year, the state Supreme Court dismissed the suit.

In Washington, Republican lawmakers cited the Hawaii Supreme Court's 1993 ruling as the motivation for the bills introduced in May 1996 that led to DOMA's enactment four months later. The bills provided that no state was obligated to recognize a same-sex marriage from another state. In a second section, the measures defined "marriage" and "spouse" in opposite-sex terms for federal law, thus precluding same-sex couples from filing joint tax returns or qualifying for any federal marital or spousal benefits. Opponents said the federal provision was discriminatory, the state law provision either unconstitutional or unnecessary. But the Republican-controlled Congress approved the measure by wide margins: 342-67 in the House, 85-14 in the Senate. President Bill Clinton endorsed the bill as it moved through Congress and then quietly signed it on Sept. 21.

State legislatures followed suit by approving statutes or submitting for voter approval constitutional amendments similarly aimed at precluding legal recognition for same-sex couples. As in Hawaii, a state constitutional amendment approved by Alaska voters in 1998 wiped out a trial court's ruling tentatively backing gay marriage. Gay rights lawyers, however, scored significant victories with cases in two New England states: Vermont and Massachusetts.

The Vermont Supreme Court's ruling in December 1999 held the denial of marital benefits to same-sex couples to violate the state constitution's equal protection provisions and ordered the state legislature to remedy the inequality. The legislature responded in April 2000 with a law creating the marriage-like "civil union" status for same-sex couples. The law took effect July 1, 2000, and by 2008 an estimated 1,485 same-sex civil unions had been registered in the state.

In Massachusetts, lawyers from the Boston-based Gay and Lesbian Advocates and Defenders filed suit in April 2001 on behalf of seven same-sex couples who had been together for periods ranging from three to 30 years. The trial judge rejected the suit the next year, but in November 2003 the Supreme Judicial Court of Massachusetts issued its epochal, 4-3 decision mandating legal recognition for same-sex couples. The ruling gave the state legislature a 180-day deadline to comply. The first marriages were performed on May 17, 2004.

The victory in Massachusetts, however, proved costly for gay rights advocates by re-energizing opponents of gay marriage, who qualified ballot measures in 13 states in 2004 aimed at banning marriage for same-sex couples. Voters approved all 13: two in early voting in September and 11 more in November. With more than 20 million voters casting ballots, the measures triumphed overall by a better than 2-1 margin. Gay rights advocates had looked to Oregon as their only realistic chance of stemming the tide, but the gay marriage ban prevailed there with 57 percent of the vote.

The battles continued. Gay marriage advocates suffered two big disappointments in July 2006 when the highest state courts in New York and Washington both narrowly rejected suits seeking to require marriage equality for same-sex couples. The 4-2 ruling in New York and the 4-3 decision in Washington both said the issue was for state legislatures to decide. In the same month, the Georgia Supreme Court and the federal appeals court for Nebraska reinstated constitutional amendments banning same-sex marriages that lower courts had ruled invalid.

Meanwhile, however, gay rights supporters had scored legislative victories in some states. The California legislature passed a domestic partnership law in 2003 giving same-sex couples virtually all the rights of marriage. Connecticut passed a civil union law in 2005 — the first state to do so without a court mandate. By the end of 2007, same-sex couples had marriage-like status available in three other states: civil unions in New Jersey and New Hampshire and domestic partnerships in Oregon.

California Showdown

Supporters and opponents of legal recognition for same-sex couples have waged virtually nonstop battles against each other in California for nearly a decade. Opponents won the first round in 2000 with the voter-approved Proposition 22 defining marriage in opposite-sex terms. Supporters won the next round in 2003 with enactment of a domestic partnership law granting all marriage rights allowed under state law. Two gay marriage bills were passed by the legislature but vetoed by Republican Gov. Arnold Schwarzenegger, while the landmark gay marriage case moved toward the state Supreme Court. Instead of settling the issue, the court's May 15 ruling only set the stage for another ballot-box showdown.

California voters' approval of the state Defense of Marriage Act in the March 7, 2000, election followed a fractious campaign that cost both sides together more than $16 million. The late state Sen. William "Pete" Knight, a Republican from Los Angeles County's high desert and father of an estranged gay son, drafted the 14-word initiative. Roman Catholic and Mormon churches did much of the legwork supporting the initiative, which carried with 61.4 percent of the vote. "California is not ready for a marriage between a man and a man," Knight told supporters on election night. Gay rights advocates vowed to regroup. "We're stronger and more galvanized than ever before," said Gwen Baldwin, executive director of the Los Angeles Gay & Lesbian Center.

The setback came six months after California had become the first state to provide domestic partner status for same-sex couples without court intervention. The bill that Democratic Gov. Gray Davis signed into law in September 1999 was limited; it provided hospital visitation rights and, for public employees, health insurance coverage for partners. With Davis in office, the Democratic-controlled legislature significantly expanded the rights of domestic partners in 2001 and again two years later. The California Domestic Partner Rights and Responsibilities Act of 2003 essentially gave state-registered domestic partners all of the rights, benefits and duties of marital spouses recognized by state law. Davis signed the bill on Sept. 22, 2003, before a huge and appreciative crowd at San Francisco's GLBT center in the Castro district. Knight said the law circumvented Proposition 22.

Barely six weeks after signing the bill, Davis was recalled by California voters — who blamed him for a variety of economic problems — and replaced by Republican Schwarzenegger. The change left gay rights groups with a gay-friendly governor from a gay-unfriendly party. Twice — in 2005 and again in 2007 — the Democratic-controlled legislature passed same-sex marriage bills, each time by bare majorities on party-line votes. Schwarzenegger vetoed both bills, saying they amounted to end-runs around the 2000 ballot initiative. "The governor believes the matter should be determined not by legislative action — which would be unconstitutional — but by court decision or another vote of the people of our state," Schwarzenegger's press secretary, Margita Thompson, explained after the first veto in September 2005.

In the meantime, Democratic San Francisco Mayor Newsom had tried to take matters into his own hands in February 2004 by directing the county clerk's office to issue marriage licenses to same-sex couples on request. About 4,000 such licenses were issued over the next month before the California Supreme Court ordered a halt. On Aug. 12, the court voided the same-sex marriages that had been performed. The city-county government then joined with half a dozen same-sex couples in seeking to invalidate Proposition 22 and win a court ruling to permit gay marriage.

The gay marriage plaintiffs won an initial ruling from a San Francisco Superior Court judge in March 2005, but a state appeals court reversed the decision by a split 2-1 vote in July 2006. The seven-justice California Supreme Court scheduled an extraordinary four hours of arguments in the case for March 4, 2008. Attorneys on the plaintiffs' side took some encouragement from some of the questions that Chief Justice George posed.

Still, neither side was completely prepared for the strongly written opinion that George authored for the 4-3 majority on May 15. Shannon Minter, legal director for the National Center for Lesbian Rights, who argued the case for the plaintiffs, called the decision "a powerful affirmation of love, family and commitment."

Liberty Counsel's Staver, one of the lawyers on the other side, said the court had "abandoned the rule of law and common sense."

Current Situation

Gay Marriage Ban Trailing

Californians appear to be closely divided on whether to permit gay marriage, but a ballot measure to overturn the state Supreme Court decision granting marriage rights to same-sex couples is trailing in the most recent public opinion surveys. Both sides in the statewide contest, however, expect the election to be close and are planning to spend about $20 million each on advertising and voter mobilization before the Nov. 4 balloting.

The two most recent polls find Proposition 8 trailing by 17 or 14 percentage points: 40 percent to 54 percent in a late August poll by the Public Policy Institute of California (PPIC); 38 percent to 55 percent in a September survey by the long-established Field Poll. The margins approximate the gap for Prop. 8 supporters recorded by the Field Poll in late May, shortly after the California Supreme Court's gay marriage ruling.

A poll by the Los Angeles Times and the Los Angeles TV station KTLA one week earlier in May found 54 percent in favor of and 35 percent opposed to the ballot measure. At the time, Prop. 8 campaign officials described the Field Poll as "an outlier" and called the Times/KTLA poll a more accurate gauge of public opinion.

After the most recent surveys, Prop. 8 campaign spokeswoman Jennifer Kerns blamed the gap on the ballot title that Attorney General Brown gave to the measure. Still, Kerns is predicting a "close" race that will turn on the level of enthusiasm among voters on both sides.

"There's a great deal of passion in support of this, which bodes well for Election Day," Kerns said. "People who feel most passionate are the people who go to the polls."

The PPIC poll, in fact, found greater interest in the ballot measure among supporters than among opponents. More than half of those in favor of the measure — 57 percent — called the outcome "very important," compared to 44 percent of those opposed.

For their part, gay marriage supporters are also describing the race as close. "It's a dead heat," says Equality California Campaign Director Bankhead.

The PPIC poll found Californians evenly divided — 47 percent to 47 percent — on letting gay and lesbian couples marry. The earlier Field Poll had found a majority in favor: 54 percent to 39 percent. That was the first time in more than a decade of polling that a survey had found a majority in favor of same-sex marriage in the state.

With more than a month before the election, both campaigns are still in low gear. Political observers in the state report few visible signs of the campaign. The Yes on Prop. 8 campaign is reporting having raised around $17.8 million — much of it from religious or socially conservative groups from outside the state. Equality California has raised $12.4 million, also much of it from out of state.

Despite the current edge in fund-raising, Prop. 8 supporters face some daunting obstacles in winning approval for the measure. In a state where Democrats hold an 11-percentage-point edge over Republicans in voter registration, the PPIC poll found Democrats opposing the measure by better than a 2-to-1 margin (66 percent to 29 percent). Republicans favor the measure — 60 percent to 34 percent. But the state's leading Republican, Schwarzenegger, opposes it.

The first marriage license in San Francisco went to lesbian activists Del Martin, left, and Phyllis Lyons, who had been together for more than 50 years. Martin, 87, died 10 weeks after San Francisco Mayor Gavin Newsom performed the ceremony on June 17. (Getty Images/Justin Sullivan) Prop. 8 supporters also cannot rely on the kind of conservative religious constituencies that helped win passage of same-sex marriage bans in other states. "You don't have nearly the same presence of religious conservatives in California as you do in other states," says Jack Pitney, a political science professor at Claremont-McKenna College in Pomona. The Field Poll found Prop. 8 trailing — 44 percent to 48 percent — in inland counties, where religious conservatives are strongest.

To offset the disadvantages, Prop. 8 supporters are making special efforts to target Latino voters — the state's biggest ethnic minority and thought to be socially conservative. But the Public Policy Institute found Latinos opposed to the measure — 54 percent to 41 percent — by only a slightly smaller margin than whites (55 percent to 39 percent). PPIC President Mark Baldassare said the poll did not have a sufficient number of African- or Asian-American respondents for a valid measure of those groups.

Despite the wide margin, Baldassare says the campaign is "early" and the vote "hard to predict." Pitney, however, says Prop. 8 supporters are unlikely to overcome the gap. "It loses," he says. "The pattern in California ballot initiatives is that once a measure starts losing by a large margin in the polls, it almost never passes."

Gay marriage opponents are also lagging in one of the two other states with ballot measures to forestall recognition of same-sex unions. The measures — Amendment 2 in Florida and Proposition 102 in Arizona — would amend the states' constitutions to define marriage as a union of one man and one woman.

In Florida, the most recent poll shows 55 percent in favor of and 41 percent opposed to Amendment 2 — short of the 60 percent majority required for a constitutional amendment.

In Arizona, Proposition 102, a measure submitted by the Republican leaders of the state Senate and House, would fortify a statutory gay marriage ban adopted in 1996. A broader measure that would have blocked any legal recognition for same-sex or unmarried straight couples failed, 48 percent to 52 percent, in 2006.

Marriage Cases Waiting

Gay rights advocates hope — and gay marriage opponents worry — that the California Supreme Court's decision recognizing same-sex marriages could influence justices considering similar suits already pending in two other states: Connecticut and Iowa.

The California ruling is legally significant because it is the only state high court ruling to date holding that gays are a constitutionally protected class and that laws discriminating against gays are subject to "strict scrutiny" — the highest level of constitutional review. "It was just a matter of time before courts would acknowledge that," says Lambda Legal attorney Pizer.

Judges in the Connecticut and Iowa marriage cases had already signaled their interest in reconsidering the legal standard for judging laws adversely affecting gay men and lesbians. Three of the Connecticut Supreme Court's seven justices asked about treating gays as a specially protected class when the gay marriage case was argued in May 2007. In Iowa, Polk County District Court Judge Robert Hanson applied strict scrutiny in striking down the state's gay marriage ban in a 63-page decision in August 2007.

Gay marriage opponents acknowledge the California Supreme Court to be one of the most influential of state tribunals. "What happens in California is noticed not only around the country but around the world," says Brigham Young law Professor Wardle.

Lawyers and advocates on both sides are waiting impatiently for the Connecticut high court to rule on the case, Kerrigan v. Department of Health, after deliberating for well over a year. The plaintiffs — eight same-sex couples — filed their suit in state court in New Haven in September 2004. Connecticut enacted a civil union statute the following year.

In July 2006, Superior Court Judge Patty Jenkins Pittman ruled in a 25-page decision that in light of the legislature's "courageous and historic step," the plaintiffs had "failed to prove that they have suffered any legal harm that rises to constitutional magnitude." The couples appealed the ruling, represented by lawyers from the Boston-based Gay & Lesbian Advocates & Defenders.

The Connecticut Supreme Court includes four Republican-appointed justices and three appointed by Gov. Lowell P. Weicker Jr., a one-time Republican elected to the statehouse under auspices of his self-styled Connecticut Party. The Republican-appointed chief justice, Chase Rogers, recused herself from the marriage case because her husband's law firm filed a brief on behalf of a gay rights organization. A retired Democratic-appointed justice, David Borden, sat on the case in her place. Borden was one of the three justices to question lawyers during arguments about applying strict scrutiny to laws discriminating against homosexuals.

The Iowa case, Varnum v. Brien, began with a suit filed by six same-sex couples in 2005 after they were denied marriage licenses by the office of the then-Polk County recorder, Tim Brien, in Des Moines. Lawyers from Lambda Legal's regional office in Chicago represented the plaintiffs.

In his decision, Judge Hanson applied strict scrutiny in ruling that the gay marriage ban violated the state constitution's due process and equal-protection clauses. Hanson found that the county attorney's office had failed to prove that the state's ban would "promote procreation," "encourage child rearing by mothers and fathers," "promote stability for opposite-sex marriages," "conserve resources" or "promote heterosexual marriage."

Lawyers completed filing briefs with the Iowa Supreme Court in June; the court has yet to schedule arguments. The seven justices on the court include two Republican and five Democratic appointees.

In a unique twist, one gay couple managed to get married the day after the ruling before Hanson agreed to the county attorney's motion to stay the decision pending appeal. Sean Fritz and Tim McQuillan, both in their early 20s, heard of the ruling on Aug. 30 and drove to Des Moines the next day to be wed. They found a judge who was willing to waive the normal three-day waiting period and got their marriage license at 10:45 a.m. Hanson issued his stay 45 minutes later.

Outlook

'It's About Marriage'

The Massachusetts Supreme Court's decision in 2003 granting marriage rights to same-sex couples produced a strong backlash. Public opinion polls registered a sharp drop in support for same-sex marriage, and gay marriage opponents won enactment of gay marriage bans in 13 states in the 2004 election cycle.

Five years later, no comparable backlash has emerged in the wake of the California Supreme Court's decision in favor of marriage equality — either nationally or in California itself. Nationwide surveys generally indicate a majority of Americans continue to oppose same-sex marriage, but surveys registered only a slight increase in opposition after the May 15 decision. And in August a poll by Time magazine actually found an even split between supporters and opponents: 47 percent to 47 percent.

In addition, polls over the past five years indicate a stable majority of between 55 percent and 60 percent in favor of allowing either marriage or civil union status for same-sex couples. As one indication of the popular acceptance of some legal recognition of same-sex couples, supporters of California's Proposition 8 to overturn the state high court decision are arguing that the ruling was unnecessary. The state's domestic partnership law, they say, already gives same-sex couples all the rights of marriage.

With Prop. 8 trailing in the polls, gay marriage opponents are still professing optimism about the outcomes in California and the two other states — Arizona and Florida — with proposed constitutional amendments to ban marriage for same-sex couples. Liberty Counsel's Staver, who is helping to organize support for the measures in Florida and California, envisions three victories to bring the total number of constitutional gay marriage bans to 30. That number, Staver says, is "getting very close to enough to ratify a federal constitutional amendment" to ban same-sex marriages nationwide.

However, the Federal Marriage Amendment, a proposed constitutional amendment that would redefine marriage as a union of one man and one woman, appears to face all but insurmountable obstacles at present. After failing in the Senate twice in 2004 and 2006, the amendment now seems all the more unlikely to win approval in a Democratic-controlled Congress. Public opinion polls over the past several years also show a majority of Americans opposed.

Gay marriage opponents may actually find themselves on the defensive in Congress if Democratic Sen. Barack Obama is elected president. Both Obama and the Democratic Party platform call for repealing the federal Defense of Marriage Act. Repeal would not be a foregone conclusion, however, since Congress passed the law in 1996 with overwhelming bipartisan majorities.

Whether or not DOMA is repealed, states will remain free to decide whether to allow marriage for same-sex couples for their own residents. The existing state constitutional bans mean that for the foreseeable future there will be a patchwork of state laws on the issue — barring the currently remote likelihood of a U.S. Supreme Court decision on the subject.

"We're going to be getting increasingly disparate treatment of same-sex unions," says Mark Strasser, a professor at Capital University Law School in Columbus, Ohio.

Gay marriage proponents think that time is on their side as more Americans come to see or know legally recognized same-sex couples in their communities or workplaces. "Most Americans don't have to fully love the idea of ending discrimination," Freedom to Marry's Wolfson adds. "They just have to realize that they can live with it. And, overall, it benefits the country."

Some opponents also expect eventual recognition for same-sex marriage. "I actually think that it will come within a generation," University of Pennsylvania Professor Wax said in the Federalist Society online debate.

Opponents continue, however, to mount their arguments against recognizing same-sex marriage. In a newly published volume, What's the Harm?, Brigham Young's Wardle organizes opposing essays around four perceived harms from legalizing same-sex marriage: to families and child rearing, to responsible sexual behavior and procreation, to the meaning of marriage and to "basic human freedoms," including religious liberty.

"The issue is about marriage," says Wardle. "It's about protecting a basic social institution."

"It's about marriage," echoes Wolfson. "We're not looking to create something new. We're talking about allowing every American to exercise the same freedom to marry, to have the same responsibilities, the same respect as every other American."

Pro/Con

Should the Defense of Marriage Act (DOMA) be repealed?

Evan Wolfson Executive Director, Freedom to Marry; author, Why Marriage Matters: America, Equality, and Gay People's Right to Marry. Written for CQ Researcher, September 2008

Congress should repeal the federal anti-marriage law. Couples who are legally married by a state such as Massachusetts or California should not be treated as legal strangers or denied rights by the federal government.

DOMA says that no matter what the need or purpose for any given program, the government will categorically deny all federal protections and responsibilities to married couples it doesn't like, i.e., those who are gay. This is an intrusive departure from more than 200 years in which couples properly married under state law then qualified for the more than 1,138 federal benefits of marriage such as Social Security, tax treatment as a family unit, family unification under immigration law and access to a spouse's health coverage. Through DOMA, Congress for the first time ever gave itself the power to say who is married, a power that under the Constitution belongs to the states.

Even worse, by denying rights such as family leave, child support and survivor benefits to one set of married couples, DOMA penalizes not only the couples themselves but their children. If the government wants to promote strong families, it should treat all married couples, and their children, equally.

There are far better reasons to treat marriages with respect than there are for destabilizing them — for all couples, gay and non-gay alike. And there are many constitutional and legal reasons why DOMA should be repealed: It denies one group of families an important and meaningful safety net; it violates the right of equal protection; it upends the traditional ways in which our country has treated married couples; and it's a power-grab by the federal government at the expense of the states.

Most important, however, Congress should reverse DOMA's radical wrong turn because it leaves no one better off, but it harms some people severely.

When DOMA was stampeded into law back in 1996, no gay couples were married anywhere in the world; Congress was voting on a hypothetical. But today real-life married couples are cruelly affected by DOMA's double standard, and Americans better understand the unfairness of depriving these families of the federal rights and responsibilities that will help them protect their loved ones. Even conservative former Georgia Republican Rep. Bob Barr, the original sponsor, has acknowledged DOMA to be abusive and now calls for its repeal.

In the United States, we don't have second-class citizens, and we shouldn't have second-class marriages. Couples who have made a personal commitment in life deserve an equal commitment under the law.

Peter Sprigg Vice president for policy, Family Research Council; author, Outrage: How Gay Activists and Liberal Judges Are Trashing Democracy to Redefine Marriage. Written for CQ Researcher, September 2008

Cases asserting a "right" to same-sex marriage were heard in both Hawaii and Alaska in the early 1990s. Both states responded with constitutional amendments to forestall such judicial activism, but the cases triggered a national response as well. Fearing that if even one state legalized homosexual marriages, those marriages might then have to be recognized in every state and by the federal government, a bill was introduced in Congress to accomplish two things. First, it declared that for every purpose under federal law (such as taxation, Social Security, immigration and federal employee benefits), marriage would be defined only as the union of one man and one woman.

Second, it declared that no state would be required to recognize a same-sex marriage or other same-sex union that was legally contracted in another state. The Defense of Marriage Act (DOMA) passed both houses of Congress by large, bipartisan majorities and was signed into law by President Bill Clinton in 1996.

Many states followed with statewide DOMAs declaring homosexual marriage contrary to the public policy of that state. The 45 state DOMAs show a strong national consensus in favor of defining marriage as the union of one man and one woman.

Two state courts (Massachusetts and California) have succeeded in forcing homosexual marriage upon their unwilling populations. But the federal DOMA has been effective in preventing the imposition of this radical social experiment on the rest of the country. Unfortunately, some members of Congress (including Sen. Barack Obama, D-Ill.) are now proposing to repeal DOMA. This would open the door for federal taxpayers to subsidize homosexual relationships through domestic partner benefits and pave the way for lawsuits demanding recognition of same-sex unions from Massachusetts and California in every state.

Family Research Council opposes giving formal recognition or benefits to homosexual relationships under any circumstances, for numerous reasons. Even those who support same-sex marriage, however, should acknowledge that such a radical redefinition of our most fundamental social institution should not be imposed by the federal government in the face of a strong consensus among the states against it. Still less should we allow unelected judges from one or two states to force such a policy upon every other state.

The federal Defense of Marriage Act has served us well in the 12 years since its enactment, and it should not be tampered with.

Chronology

Before 1970 Gay rights movement begins to form; same-sex marriage low on agenda. 1968, 1969 Metropolitan Community Church in Los Angeles performs first public weddings for same-sex couples. 1970s-1980s Gay rights measures enacted in some states, localities; AIDS epidemic, "lesbian baby boom" spur interest in legal recognition for relationships. 1971 Marriage rights suits filed by gay Minnesota couple and lesbian couple in Kentucky are rejected; over next six years, 15 states pass laws defining marriage as opposite-sex union. 1984 Berkeley, Calif., becomes first city to provide domestic-partner benefits to employees. 1986 U.S. Supreme Court upholds state anti-sodomy laws. 1990s Gay marriage rulings spur backlash in Congress, states; Vermont court is first to require state to give legal recognition for same-sex couples. 1993 Hawaii Supreme Court requires state to justify ban on same-sex marriage; trial court rules ban unconstitutional in 1996, but ruling is nullified by state constitutional amendment approved in 1998. 1996 Congress passes and President Bill Clinton signs Defense of Marriage Act, which bars federal benefits for same-sex couples and buttresses states' authority not to recognize same-sex marriages from other states. 1998 Alaska trial court rules ban on same-sex marriage unconstitutional; ruling nullified by constitutional amendment approved by voters in November. 1999 California passes limited domestic-partnership law for same-sex couples; rights under law expanded in 2001, 2003. . . . Vermont Supreme Court rules state must allow same-sex couples to enjoy legal benefits accorded to heterosexuals; state legislature implements ruling by passing civil-unions law in April 2000. 2000-Present Massachusetts recognizes marriage for same-sex couples; after setbacks in several states, gay rights supporters win second pro-marriage ruling in California; opponents qualify ballot measure to overturn decision. 2003 U.S. Supreme Court rules anti-sodomy laws unconstitutional; majority opinion does not address gay marriage. . . . Supreme Judicial Court of Massachusetts rules same-sex couples entitled to same rights as opposite-sex couples; gives legislature 180 days to act. 2004 Voters in 13 states pass gay marriage bans, all by substantial margins. . . . Federal Marriage Amendment fails in Senate (and again in 2006). 2005 Connecticut legislature passes civil-union law — first state to act without court mandate. 2006 State high courts in New York and Washington uphold laws limiting marriage to opposite-sex couples. . . . New Jersey Supreme Court rules same-sex couples entitled to same benefits, protections as opposite-sex couples, with legislature to choose between "marriage" or "civil unions"; legislature approves civil-union bill two months later. 2007 Connecticut Supreme Court hears arguments in gay-marriage case; decision still pending in fall 2008. . . . Judge in Iowa rules gay-marriage ban unconstitutional; same-sex couple weds before decision is stayed pending appeal to state Supreme Court. 2008 California Supreme Court says same-sex couples entitled to marriage, anti-gay laws presumptively unconstitutional (May 15); ruling goes into effect one month later after justices decline request for stay. . . . Gay-marriage opponents qualify Proposition 8 for Nov. 4 ballot; measure would define marriage as union of one man, one woman; bar recognition of same-sex marriages from other states. . . . Same-sex marriage bans also on ballot in Arizona, Florida; Arkansas to vote on banning adoptions, foster-child placements with unmarried couples.

Short Features

Census Won't Recognize Same-Sex Marriages

"It really is something out of Orwell," a critic says. Even though Massachusetts and California recognize same-sex marriages, the U.S. Census Bureau will not count gay or lesbian spouses as married in the 2010 census.

Census Bureau officials say the policy of treating married same-sex couples as unmarried partners is dictated by the federal Defense of Marriage Act, which bars the federal government from recognizing same-sex marriages for any purpose under federal law. The law "requires all federal agencies to recognize only opposite-sex marriages for the purpose of administering federal programs," Census spokesman Stephen Bruckner explained shortly after the policy was disclosed in July.

The policy has drawn criticism from same-sex couples in both states and from gay rights advocacy groups. "To have the federal government disappear your marriage I'm sure will be painful and upsetting," Shannon Minter, legal director for the San Francisco-based National Center for Lesbian Rights, told the San Jose Mercury News, which first disclosed the policy. "It really is something out of [1984 author George] Orwell."

Demographer Gary Gates at the pro-gay marriage Williams Institute, UCLA School of Law, says the decision amounts to deliberately producing inaccurate population data. "Bureau officials should acknowledge the reality that same-sex couples can legally marry in this country," he says, "and stop altering the accurate responses of same-sex couples who describe themselves as married."

Anti-gay marriage groups, however, defend the bureau's decision. "We're dealing with a government entity that is given certain charters and mandates, and they have to subscribe to public law," says Kris Mineau, president of the Massachusetts Family Institute.

The bureau's decision will not affect the overall population count, which the Constitution requires every 10 years in order to apportion seats in the House of Representatives among the 50 states. But detailed information from the household questionnaires is used by the bureau and by independent researchers to provide demographic analyses in such areas as family structure and size, income and education.

The bureau says the questionnaires used in the 2010 census will not be destroyed, so the data will theoretically be available to independent researchers later. But the bureau's decision will slow a count of married same-sex couples in California, where marriage licenses now identify spouses only as "Party A" and "Party B."

McCain and Obama Diverge Over Legal Recognition

But both oppose same-sex marriage. Democrat Barack Obama and Republican John McCain both oppose marriage for same-sex couples. But the two presidential nominees diverge significantly on a secondary question about gay and lesbian relationships: Should they receive legal recognition?

Obama favors civil unions that would give same-sex couples all of the legal rights of marriage. The Illinois senator also wants to repeal the federal Defense of Marriage Act (DOMA), which defines marriage as the union of a man and a woman. And he displays both positions along with other gay-rights stances on a full page devoted to GLBT (gay, lesbian, bisexual and transgender) issues on his campaign Web site (www.barackobama.com).

Sen. John McCain voted for the Defense of Marriage Act in 1996. (AFP/Getty Images/Gerardo Mora) McCain says same-sex couples should be allowed to establish some rights through "legal agreements," but he appears to oppose civil unions. The Arizona senator voted for DOMA in 1996; the Republican Party platform opposes repealing it. McCain's campaign Web site has no GLBT page; the only tacit references to GLBT issues endorse the one-man, one-woman definition of marriage and oppose "activist" judges (www.johnmccain.com).

The two candidates also differ on the Nov. 4 ballot proposition in California to overturn the state Supreme Court's decision granting full marriage rights to same-sex couples. McCain favors the measure; Obama opposes it. Both candidates called little attention to statements announcing their positions in late June.

Unsurprisingly, major GLBT advocacy organizations are supporting Obama in the Nov. 4 presidential balloting. "Sen. Obama has consistently shown that he understands, as we do, that, GLBT rights are civil rights and human rights," Human Rights Campaign President Joe Solmonese said in formally endorsing the Democratic ticket on June 6.

But the Log Cabin Republicans, a gay GOP group, is backing McCain — four years after withholding its endorsement from President Bush. In announcing the endorsement on Sept. 2, President Patrick Sammon pointed to McCain's two Senate votes in 2004 and 2006 opposing the proposed constitutional amendment to bar recognition of same-sex marriages by the federal or state governments.

Obama also voted against the amendment and restates his opposition on his Web site. McCain does not mention the amendment on his site.

McCain says on his Web site that only the definition of marriage as the union of one man and one woman "sufficiently recognizes the vital and unique role played by mothers and fathers in the raising of children, and the role of the family in shaping, stabilizing and strengthening communities and our nation." He has been less clear in his position on civil unions.

Campaigning in New Hampshire in March 2007, McCain said he opposed the civil union legislation recently enacted in the state. "Anything that impinges or impacts the sanctity of the marriage between men and women, I'm opposed to it," McCain was quoted as saying in a conference call with several political bloggers. Appearing on the "Ellen de Generes Show" in May 2008, however, McCain said "people should be able to enter into legal agreements" and should be encouraged to do so.

Obama professes strong support for civil unions for same-sex couples. "Barack Obama supports full civil unions that give same-sex couples equal legal rights and privileges as married couples," the campaign Web site states. The entry goes on to call for repealing DOMA and providing federal rights and benefits to same-sex couples in civil unions or other legally recognized unions.

Sen. Barack Obama wants to repeal the Defense of Marriage Act. (AFP/Getty Images/Emmanuel Dunand) Obama has been somewhat reticent, however, on same-sex marriage. "My religious beliefs say that marriage is something sanctified between a man and a woman," Obama was quoted as saying during his 2004 Senate campaign in Illinois. In the presidential campaign, however, he has generally answered questions about gay marriage only indirectly by explaining his support for civil unions — as can be seen in an undated CNN video clip from a campaign town hall meeting in Durham, N.H.

On his Web site, Obama also calls for adoption rights for "all couples and individuals, regardless of sexual orientation." On his site, McCain — father of an adoptive child — calls for promoting adoption as "a first option" for crisis pregnancies. But the site makes no reference to McCain's statement in a newspaper interview opposing adoption by gay couples or individuals. Under criticism, McCain modified the statement the next day to say that adoption is a state issue.

Longtime gay-rights advocate Winnie Stachelberg says the contrast between the two candidates on GLBT issues "could not be more clear." Stachelberg, a senior vice president at the Center for American Progress, a Democratic think tank, says Obama would promote gay and lesbian equality if elected president. She complains that McCain has "studiously" avoided reaching out to the GLBT community.

From the opposite side, Family Research Council policy Vice President Peter Sprigg voices satisfaction with the Republican platform's support for "traditional marriage," while acknowledging ambivalence about McCain's votes against the Federal Marriage Amendment, a proposed constitutional amendment that would define marriage as a union of one man and one woman. But he complains that Obama "is unwilling to support any kind of actions that would defend the traditional definition of marriage. I kind of think he's playing word games in saying that he does not support same-sex marriage."

Will Gay Weddings Bring Economic Boom?

California and Massachusetts are not cashing in yet. Same-sex couples from other states who travel to California and Massachusetts to get marriage licenses may spark a modest economic boom in the two states.

The pro-gay marriage Williams Institute at UCLA School of Law forecasts $64 million in added revenue for state and local governments in California from out-of-state couples coming to wed. A similar study for Massachusetts — prepared this summer as the state was about to repeal a law limiting marriage for out-of-state couples — projects a $5 million revenue gain over three years.

Gay-marriage opponents discount the studies. "Those claims are highly suspect, particularly since the only study was done by a blatantly pro-homosexual think tank," says Kris Menau, president of the Massachusetts Family Institute, the major advocacy group working against gay marriage in the Bay State. "We see no evidence of a great migration by out-of-state homosexual couples to come here to marry."

Anecdotal evidence is ambiguous. A justice of the peace in the gay mecca of Provincetown, Mass., told The Washington Post she had to use scheduled vacation days in August to perform weddings for out-of-state couples. "I have a full-time job, and this has become a full-time job," Rachel Peters said.

In California, however, the head of a nationwide trade association for wedding professionals says the predicted boomlet has yet to materialize. "The goal was to pull several hundred thousand from other states to come here and get married," says Richard Markel, president of the Sacramento-based Association for Wedding Professionals International. "I haven't seen it totally yet."

Five months after Massachusetts became the first state to extend marriage to same-sex couples, the respected business magazine Forbes forecast that gay weddings could mean an additional $16.8 billion for the nation's $70-billion-a-year wedding industry. A wedding industry newsletter cited in the Williams Institute studies puts the average cost of a wedding in the United States today at $30,000.

For its calculations, the Williams Institute used a more conservative figure of about $3,000 per wedding — assuming that out-of-state couples would be somewhat budget-strapped on their celebrations. But after adding in anticipated tourist spending, the institute predicted $111 million in added spending in Massachusetts from more than 30,000 out-of-state couples over the next three years. In California, the institute predicted that 51,000 California couples and 67,000 out-of-staters would spend $638.6 million.

Whatever the exact figure proves to be, gay marriage has been a definite boon for the lesbian couple who founded the Rainbow Wedding Network in 2002. Co-founder Cindy Sproul says she returned to her home state of North Carolina in August with a good-sized boost for the $4.5-million-a-year business after hosting four wedding expos in California in July.

Sproul and Markel both say gay weddings are similar to opposite-sex weddings. Most gay weddings are performed in places of worship and officiated by clergy, Sproul says, though same-sex couples are somewhat more likely to write their own vows than opposite-sex couples. Same-sex couples — typically older than opposite-sex couples — are also more likely to be paying for weddings themselves rather than their parents.

Same-sex wedding cake figurines will be in demand if the gay-wedding business grows as expected in California. (AFP/Getty Images/David McNew) Sproul says most of the companies that advertise through the network are straight-owned, and the owners have no problems with serving gay ceremonies. Markel agrees. "A majority of the people in the business got into the business because they enjoy celebrations, and they enjoy helping people," he says.

Both Sproul and Markel point to some exceptions, however. "We've had some very hostile e-mails and death threats," says Sproul. Markel quotes one photographer as saying he would shoot a lesbian wedding but — using an epithet — questioned whether he would photograph two men getting married.

The Williams Institute predicted that New York would be the major source of out-of-state couples for Massachusetts. For California, the institute forecast influxes from New York, Texas, North Carolina and the nearby Pacific Coast and Southwestern states. But among those who already traveled to California to tie the knot was Sproul and her partner Marianne Puechl, who got married on July 22 on a Malibu beach.

The newlyweds flew home the next day to North Carolina. The state enacted a statutory ban on recognizing same-sex marriages in 1996. "We hope [the marriage] will be recognized some day," Sproul says.

[11] See Brad Sears and M.V. Lee Badgett, "The Impact of Extending Marriage to Same-Sex Couples on the California Budget," Williams Institute, June 2008, www.law.ucla.edu/WilliamsInstitute/publications/EconImpactCAMarriage.pdf. The Massachusetts study is referenced in Keith B. Richburg, "A Milestone for Gays, A Boon for Massachusetts," The Washington Post, Sept. 3, 2008, p. A3. The Charles R. Williams Project on Sexual Orientation and the Law was established at UCLA in 2001 after a $2.5 million contribution from Williams, a gay businessman and philanthropist.

Footnote: 11. See Brad Sears and M.V. Lee Badgett, "The Impact of Extending Marriage to Same-Sex Couples on the California Budget," Williams Institute, June 2008, www.law.ucla.edu/WilliamsInstitute/publications/EconImpactCAMarriage.pdf. The Massachusetts study is referenced in Keith B. Richburg, "A Milestone for Gays, A Boon for Massachusetts," The Washington Post, Sept. 3, 2008, p. A3. The Charles R. Williams Project on Sexual Orientation and the Law was established at UCLA in 2001 after a $2.5 million contribution from Williams, a gay businessman and philanthropist.

The Next Step

Constitutional Rights

Chen, David W., "New Jersey Court Backs Full Rights for Gay Couples," The New York Times, Oct. 26, 2006, p. A1. New Jersey's highest court has ruled that gay couples are entitled to the same legal rights as heterosexual couples, but it ordered the legislature to decide whether their unions must be called marriages.

Entrekin, Lance, "Same-Sex Marriage Ban Hinging on State Senate Vote," Arizona Republic, June 13, 2008, p. 35. The Defense of Marriage Act may make same-sex marriage illegal, but judges are free to find such a law in violation of a state's constitution.

Green, Ashbel S., "Court Backs Gay Marriage Ban," The Oregonian, May 22, 2008, p. B1. Gay rights advocates say a court decision in Oregon to uphold a ban on same-sex marriage fundamentally denies promises of equality under the state constitution.

Yi, Matthew, "Governor to Oppose Amendment to Ban Same-Sex Marriage," The San Francisco Chronicle, April 12, 2008, p. A1. Gov. Arnold Schwarzenegger, R-Calif., has said that an attempt to ban same-sex marriage by changing the state Constitution is a "total waste of time" and promised to oppose such an initiative.

Presidential Election

Finnegan, Michael, and Cathleen Decker, "Quiet Stands on Gay Marriage," Los Angeles Times, July 2, 2008, p. A12. Sens. Barack Obama and John McCain haven't said much about gay marriage, but their positions won't matter much in California — a state that strongly favors Democrats.

Thomma, Steven, "Same-Sex Marriage Emerges As Election Issue," The Miami Herald, June 18, 2008, p. A6. Pollsters say that the controversial issue of same-sex marriage will benefit John McCain in the presidential election because it will increase turnout among conservative voters.

Wildermuth, John, "Obama Opposes Ban on Gay Marriage," The San Francisco Chronicle, July 2, 2008, p. A1. Presidential candidate Barack Obama opposes a ballot measure that would ban same-sex marriages in California.

State Recognition

"Court: Gay Marriage in Canada Should Be Recognized in New York," The Associated Press, Feb. 1, 2008. An appeals court has ruled that gay marriages performed in Canada should be recognized across the border in New York.

Gormley, Michael, "Gov: NY to Recognize Out-of-State Gay Marriage," The Associated Press, May 29, 2008. Gov. David Paterson said same-sex marriages legally performed in other states will be recognized in New York.

Tucker, Eric, "Court: Gay Couple Married in Massachusetts Can't Divorce in R.I." The Associated Press, Dec. 7, 2007. The Rhode Island Supreme Court has ruled that a lesbian couple who married in Massachusetts cannot divorce in their home state of Rhode Island.

Vestal, Christine, "States at Odds Over Gay Marriage Recognition," Stateline.org, June 16, 2008. Whether states decide to recognize the rights of gay marriages performed in California will depend on their own interpretation of state laws, many of which ban such unions.

Wedding Business

Kahn, Hamilton, "A New Wedding Boom Awaits," The Boston Globe, Aug. 18, 2008, p. A15. Civic and business leaders in Provincetown, Mass., think same-sex marriages will spark an economic boom.

Leff, Lisa, "Gay-Marriage Ruling Could Boost California's Ailing Economy," The Associated Press, June 11, 2008. A study estimates that over the next three years gay marriages will generate $684 million in revenue for California businesses.

Tran, My-Thuan, "Gay Weddings Not Quite a Piece of Cake," Los Angeles Times, June 21, 2008, p. B1. Wedding-business owners in California who oppose same-sex unions have found themselves conflicted with the sudden rise in gay marriages stemming from a recent court ruling.

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