State and Local Issues

State and Local Issues Regarding the Same Sex Marriage Debate Constitutional Provisions • Full faith and credit: • "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." [1] Article 4, section 1 • Equal protection: • The Equal Protection Clause is part of the 14th Amendment of the United States Constitution. The clause provides that “no state shall make or enforce any law which shall...deny to any person within its jurisdiction the equal protection of the laws.” DOMA • H.R.3396 • One Hundred Fourth Congress • of the • United States of America • AT THE SECOND SESSION • Begun and held at the City of Washington on Wednesday, • the third day of January, one thousand nine hundred and ninety-six • An Act • To define and protect the institution of marriage. • Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, • SECTION 1. SHORT TITLE. • This Act may be cited as the `Defense of Marriage Act'. • SEC. 2. POWERS RESERVED TO THE STATES. • (a) IN GENERAL- Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following: • `Sec. 1738C. Certain acts, records, and proceedings and the effect thereof • `No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.'. • (b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item: • `1738C. Certain acts, records, and proceedings and the effect thereof.'. • SEC. 3. DEFINITION OF MARRIAGE. • (a) IN GENERAL- Chapter 1 of title 1, United States Code, is amended by adding at the end the following: • `Sec. 7. Definition of `marriage' and `spouse' • `In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage' means only a legal union between one man and one woman as husband and wife, and the word `spouse' refers only to a person of the opposite sex who is a husband or a wife.'. • (b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item: • `7. Definition of `marriage' and `spouse'.'. • Speaker of the House of Representatives. • Vice President of the United States and • President of the Senate. “Little DOMA’s” Time Line • 1996 A court in Hawaii overrules a previous state ban on gay marriage, sparking a national debate on the subject. • 1996 The U.S. House and Senate overwhelmingly pass the Defense of Marriage Act (DOMA), a bill denying federal recognition of same-sex marriages and giving states the right to refuse same-sex marriage licenses from other states and deny benefits associated with marriage. President Bill Clinton signs the bill. Some 38 states have since adopted similar state legislation. • 2000 Vermont creates a new legal relationship status called a "civil union," allowing same-sex couples to obtain all of the rights, responsibilities and benefits available through marriage within the state of Vermont, becoming the first state to do so. Time Line 2 • May, 2003 Rep Marilyn Musgrave, (R-Colo.) and five cosponsors introduce HJ Resolution 56, the Federal Marriage Amendment, a resolution to amend the U.S. Constitution to define marriage as a union between a man and a woman only. The Senate follows suit with its own resolution in November. The amendments state that no state or federal law "shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.“ • June 2003 The U.S. Supreme Court strikes down a Texas law prohibiting same-sex sodomy. By removing criminal implications for private consensual sexual acts, the ruling changed the legal landscape for an array issues concerning same-sex couples, including the right to marry. • June-July, 2003 The Canadian provinces of Ontario and British Columbia begin allowing same-sex couples to marry, and obtain full rights of marriage under Canadian law, following a court decision that the law on traditional marriage is unconstitutional. Time Line 3 • November, 2003 The Massachusetts Supreme Judicial Court rules that it is a violation of the state constitution to bar same-sex couples from marriage. • February, 2004 Massachusetts lawmakers debate amending the state constitution to define marriage as a union only between a man and woman in response to the November court ruling. The amendment fails. At least 20 other states had introduced or were expected to introduce similar state constitutional amendments. • On Feb. 12, 2003, San Francisco's newly elected Mayor Gavin Newsom allows the distribution of marriage licenses to same sex couples, prompting the state attorney general to file a constitutional challenge with the state Supreme Court. Thousands of gay and lesbian couples descend on City Hall for wedding ceremonies. • February, 2003 New Paltz, New York Mayor Jason West also begins to conduct wedding ceremonies. State by State Cases Hawaii • Baehr v. Lewin, 74 Haw. 530, 645, 852 P.2d 44 (1993), http://www.qrd.org/qrd/usa/legal/hawaii/baehr-v-lewin.txt-05.05.93 . The Hawaii Supreme Court held that, although there was not a fundamental constitutional right of persons of the same sex to marry, the sex-based classification in the Hawaii marriage statute was subject to "strict scrutiny" and would be presumed unconstitutional unless the state could demonstrate that it furthered a compelling state interest. • Hawai'i Constitution Art.I sec.23: "The legislature shall have the power to reserve marriage to opposite-sex couples." (ratified Nov.3,1998). Alaska • Brause v. Bureau of Vital Statistics, 1998 WL 88743 (Alaska Super. Ct. 1998) Held that "marriage, i.e., the recognition of one's choice of a life partner, is a fundamental right. The state must therefore have a compelling interest that supports its decision to refuse to recognize the exercise of this fundamental right by those who choose same-sex partners rather than opposite- sex partners." • Alaska Const. Art I, _25: "To be valid or recognized in this State, a marriage may exist only between one man and one woman." (added 1998, eff. Jan.3,1999) VERMONT • Baker v. State, 744 A.2d 864. 81 A.L.R.5th 627 (Vt.1999) (reprinted at 25 Vt.L.Rev. 285 and available at http://www.vtf reetomarry.org/fs_vermontdecision.html) The Vermont Supreme Court held that the State was "constitutionally required to extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law.“ • Vermont Civil Union Act, Act No.91 (April 26,2000), http://www.leg.state.vt.us/docs/2000/acts/ACT091.HTM One of these things in NOT like the other… Massachusetts • Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (Nov.18,2003) (opinion available at Massachusetts Lawyers Weekly site, http://www.masslaw.com/archives/ma/opin/sup/1017603.htm). The Supreme Judicial Court "construe[d] civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others," and declared that "barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution." The court stayed the entry of judgment for 180 days to permit the Legislature to take appropriate action. For background information see GLAD website at http://www.glad.org/marriage/. • On December 11, 2003, the state Senate, by an order designated Senate No.2176, asked the Supreme Judicial Court for an advisory opinion on the constitutionality of Senate bill No.2175, establishing civil unions. For texts of the bill and order, see http://www.state.ma.us/legis/bills/st02175.htm and http://www.state.ma.us/legis/bills/st02176.htm. On February 3, 2004, the Supreme Judicial Court replied, in Opinions of the Justices to the Senate, http://www.malawyersweekly.com/archives/ma/opin/sup/1002204.htm, that the civil union bill would maintain " an unconstitutional, inferior, and discriminatory status for same-sex couples ...," and thus made clear that same sex marriage per se would be allowed in Massachusetts, beginning in May 2004. • Constitutional convention to resume March 11 November ’03 Massachusetts Order: • We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. This reformulation redresses the plaintiffs' constitutional injury and furthers the aim of marriage to promote stable, exclusive relationships. It advances the two legitimate State interests the department has identified: providing a stable setting for child rearing and conserving State resources. It leaves intact the Legislature's broad discretion to regulate marriage. See Commonwealth v. Stowell, 389 Mass. 171, 175 (1983).

In their complaint the plaintiffs request only a declaration that their exclusion and the exclusion of other qualified same-sex couples from access to civil marriage violates Massachusetts law. We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution. We vacate the summary judgment for the department. We remand this case to the Superior Court for entry of judgment consistent with this opinion. Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion. See, e.g., Michaud v. Sheriff of Essex County, 390 Mass. 523, 535-536 (1983).

• So ordered.

• http://www.masslaw.com/signup/gtwFulltext.cfm?page=ma/opin/sup/1017603.htm Nov. ‘03 Massachusetts Dissent • SPINA, J. (dissenting, with whom Sosman and Cordy, JJ., join). What is at stake in this case is not the unequal treatment of individuals or whether individual rights have been impermissibly burdened, but the power of the Legislature to effectuate social change without interference from the courts, pursuant to art. 30 of the Massachusetts Declaration of Rights.1[41] The power to regulate marriage lies with the Legislature, not with the judiciary. See Commonwealth v. Stowell , 389 Mass. 171, 175 (1983). Today, the court has transformed its role as protector of individual rights into the role of creator of rights, and I respectfully dissent. February ’04 Decision • 4. Conclusion. We are of the opinion that Senate No. 2175 violates the equal protection and due process requirements of the Constitution of the Commonwealth and the Massachusetts Declaration of Rights. Further, the particular provisions that render the pending bill unconstitutional, §§ 2 and 3 of proposed G. L. c. 207A, are not severable from the remainder. The bill maintains an unconstitutional, inferior, and discriminatory status for same-sex couples, and the bill's remaining provisions are too entwined with this purpose to stand independently. See Murphy v. Commissioner of the Dep't of Indus. Accs., 418 Mass. 165, 169 (1994).

The answer to the question is "No." Arizona • ARIZONA • Standhardt v. Superior Court ex rel. County of Maricopa, 77 P.3d 451 (Ariz. Ct. App. Div.1, Oct.8, 2003), opinion available on Court's website at http://www.cofad1.state.az.us/opinionfiles/SA/SA030150.pdf. The Court of Appeal held that same-sex couples did not have a fundamental constitutional right to marry, and that " the State has a legitimate interest in encouraging procreation and child-rearing within the marital relationship, and that limiting marriage to opposite-sex couples is rationally related to that interest." The plaintiffs have said they will file an appeal to the Arizona Supreme Court in early December. Ohio • OHIO • Substitute House Bill 272 was signed into law Feb.6,2004. The Legislative Service Commission's Bill Analysis says this law • Declares that same-sex marriages are against the strong public policy of the state of Ohio and have no legal force or effect in this state • Provides that same-sex marriages entered into in another jurisdiction have no legal force or effect in Ohio. • Declares that the recognition or extension by the state of the specific statutory benefits of legal marriage to nonmarital relationships between persons of the same sex or different sexes is against the strong public policy of the state of Ohio. • Provides that any other jurisdiction's extension of the specific benefits of legal marriage to nonmarital relationships between persons of the same sex or different sexes has no legal force or effect in Ohio. California • California Statutes 1999, ch.588 (AB 26), relating to domestic partnerships, added Calif. Family Code §297 et seq., Calif. Gov't Code §22867 et seq., and Calif. Health & Safety Code §1261. The domestic partnership laws were expanded and amended by Calif. Statutes 2001 c. 893 (AB 25). The full text of each act can be retrieved by entering the year and chapter number at http://www.leginfo.ca.gov/statute.html. • Proposition 22 passed in 2000: – SECTION 1. This act may be cited as the "California Defense of Marriage Act." – SECTION 2. Section 308.5 is added to the Family Code, to read: – 308.5. Only marriage between a man and a woman is valid or recognized in California. More alike than they would ever admit… San Francisco • Friday, Feb. 27 ‘04: The California Supreme Court declined a petition by the state Attorney General for an immediate ruling on the constitutionality of San Francisco`s decision to allow same-sex couples to marry. The petition also asked the court to cease and desist issuing same-sex marriage licenses until the matter is resolved. Other Local Issues • In New Mexico's Sandoval County, 67 gay couples were granted marriage licenses last week until the state attorney general ordered the county clerk to stop. • In tiny New Paltz, N.Y., Jason West, the Green Party mayor, presided over the weddings of two dozen gay couples. George Pataki, the state's Republican Governor, quickly asked Eliot Spitzer, the Democratic state attorney general, to halt them. So far he has not. Local Issues • Iowa • Gay and Lesbian Couples Try for Marriage Licenses in Iowa City – Johnson County Recorder Kim Painter is the only openly gay elected official in the state. She told the group while she had to turn them down, she supported their cause. The Conflict:

– Massachusetts Supreme Court order to begin in May – California weddings continue; other localities join in • The Federal Defense of Marriage Act says other states do not have to honor these contracts; state Defense of Marriage Acts and constitutional amendments define marriage as between a man and a woman • This sets the stage for either a federal Supreme Court case to resolve the conflict or an amendment to the US constitution Federal Constitutional Amendment • Needs to pass with 2/3 majority in both houses • Must be ratified by 3/4 of the state’s legislatures (38 states) – 8 states require super majority to ratify (3/5)

– Article V - The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. Text of Proposed Constitutional Amendment • HJ 56 IH • 108th CONGRESS • 1st Session • H. J. RES. 56 • Proposing an amendment to the Constitution of the United States relating to marriage. • IN THE HOUSE OF REPRESENTATIVES • May 21, 2003 • Mrs. MUSGRAVE (for herself, Mr. HALL, Mr. MCINTYRE, Mr. PETERSON of Minnesota, Mrs. JO ANN DAVIS of Virginia, and Mr. VITTER) introduced the following joint resolution; which was referred to the Committee on the Judiciary • JOINT RESOLUTION • Proposing an amendment to the Constitution of the United States relating to marriage. • Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission for ratification: • `Article -- • `SECTION 1. Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.'.

European Timeline • 1989 Denmark becomes the first nation to legally recognize same-sex unions, offering "the same legal effects as the contracting of marriage." Half a dozen European countries begin moving in the same direction. • April, 2001 Netherlands: Gay and lesbian couples who are Dutch are allowed to marry and adopt with the full privileges enjoyed by heterosexual married couples. The law offers the most sweeping rights to same sex couples in the world. By 2002, Norway, Sweden, Iceland, Germany, France and Switzerland have all adopted laws allowing registration of same-sex unions, with most or all of the rights enjoyed by married heterosexual couples.