What is the History of the Same-Sex Marriage Movement?

Past Out

9 February 2004

by Liz Highleyman

Today, same-sex marriage is in the news as never before, following favorable court decisions in Canada and Massachusetts. But the gains of 2003 were the result of a decades-long struggle.

The first same-sex marriage case to gain widespread attention was that of Richard John Baker, a law student at the University of Minnesota, and his partner James Michael McConnell. With their priest's blessing, the men applied for a state marriage license in May 1970. Their request was denied and the couple sued, arguing that their due process and equal protection rights had been violated. The following year, the Minnesota Supreme Court ruled that past U.S. Supreme Court decisions did not support the men's position.

In the first marriage case involving two women, a lesbian couple in Kentucky argued that the denial of marriage infringed upon their right to associate and to freely exercise their religion. But a court ruled in 1973 that "what they propose is not a marriage."

Two years later, several same-sex couples in Boulder, Colo., succeeded in obtaining marriage licenses after a local district attorney declared that no county laws specifically prohibited such unions. The state attorney general soon overturned the district attorney's ruling, however, and all same-sex marriage licenses were revoked.

Throughout the 1980s, lesbian and gay activists focused on gaining equal rights from local governments and employers by means of domestic partnerships, but in the decade that followed, many again turned their sights toward genuine marriage.

In December 1990, three couples - Nina Baehr and Genora Dancel, Tammy Rodrigues and Antoinette Pergil, and Pat Lagon and Joseph Melilo - applied for marriage licenses in Hawaii. When denied, they initiated a lawsuit, arguing that prohibition of same-sex marriage amounted to discrimination on the basis of sex. The Hawaii Supreme Court ruled in 1993 that the state must show a "compelling reason" to deny same-sex marriage, and sent the case back to a lower court. The justices cited earlier laws banning interracial marriage, reasoning that if marital partners could not be restricted on the basis of race, neither should they be limited based on sex. Three years later, circuit court judge Kevin Chang again ruled in favor of the plaintiffs, rejecting the state's argument that same-sex marriage was detrimental to children. "This decision marks the beginning of the end to sex discrimination in marriage," declared Evan Wolfson, an attorney for the plaintiffs.

The Hawaii case ignited a national firestorm of controversy and spurred a stream of state laws that banned same-sex marriage and refused to recognize such marriages performed in other states. This reaction culminated in the federal Defense of Marriage Act, signed by President Bill Clinton in September 1996, which defined marriage as "a legal union between one man and one woman as husband and wife." Nevertheless, several states went on the pass to own "mini-DOMA" laws; by the beginning of 2004, nearly 40 states had enacted legislation against same-sex-marriage, the most restrictive of which prohibited not only marriage, but also rights granted through domestic partnerships.

Back in Hawaii, same-sex marriage opponents began a drive to amend the state constitution to define marriage as the union of a man and a woman. Their efforts succeeded in November 1998, before the Supreme Court could issue its final ruling in the pending case. The court finally declared the Baehr v. Anderson lawsuit dead in December 1999.

But less than two weeks later, disappointment turned to celebration when the Vermont Supreme Court ruled that "the State is constitutionally required to extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law." The court left it up to the legislature to decide how to accomplish this mandate.

Vermont governor Howard Dean signed a law in April 2000 granting same-sex couples all the state benefits of marriage through a new type of "civil union." Although falling short of legal marriage, the new unions proved popular, drawing same-sex couples to Vermont from throughout the country. Annette Cappy, a town clerk in Brattleboro, opened her office just after midnight on the day the new law went into effect. "This office has been known to stay open for 24 hours on the first day of hunting season," she said. "I figure if we did it for people who want to shoot animals, I can do it for two people in love."

In 2003, LGBT activists were buoyed by a federal Supreme Court ruling that overturned state sodomy laws, as well as by court decisions in two Canadian provinces allowing same-sex marriage. (Canada was not the first to do so, however: the Netherlands extended its marriage laws to include same-sex couples in April 2001.) But the climax came in November when the Massachusetts Supreme Court ruled that state law restricting marriage to opposite-sex couples was unconstitutional. The justices ordered the state legislature to remedy the discrimination by May 2004.

While many LGBT people hold out hope that the Massachusetts ruling will be the long-awaited ticket to legal equality, queer couples still face a growing conservative backlash, including an effort to amend the U.S. Constitution to prohibit same-sex marriage once and for all.

Liz Highleyman is a freelance writer and editor who has written widely on health, sexuality, and politics. She can be reached care of this publication or at PastOut@qsyndicate.com.

For further reading:

Eskridge, William. 1996. The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment (Free Press).

Martinac, Paula. 1998. The Lesbian and Gay Book of Love and Marriage Broadway Books).

Sullivan, Andrew (ed.). 1997. Same-Sex Marriage: Pro and Con. A Reader (Vintage).

© 2004
Liz Highleyman -- liz@black-rose.com