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APA Newsletters NEWSLETTER ON PHILOSOPHY AND LESBIAN, GAY, BISEXUAL, and TRANSGENDER ISSUES Volume 09, Number 1 Fall 2009 LGBT COMMITTEE, 2009-2010 FROM THE EDITOR, TIMOTHY F. MURPHY ARTICLE RICHARD NUNAN “Constitutional Rights versus State Autonomy and Direct Democracy: The Story So Far on Same-Sex Marriage” © 2009 by The American Philosophical Association APA NEWSLETTER ON Philosophy and Lesbian, Gay, Bisexual, and Transgender Issues Timothy F. Murphy, Editor Fall 2009 Volume 09, Number 1 U.S. Constitution’s full faith and credit clause,3 to recognize OMMITTEE unorthodox marriage licensing procedures in a sister state. LGBT C 2009-2010 The federal courts have always been reluctant to enforce this principle against expressly contradictory public policy in another state, however.4 Given that judicial history, many states began Talia Bettcher, Chair; Loren Cannon, Margaret Denike, Kimberly the process of making contrary popular sentiment explicit by J. Leighton; Lanei Rodemeyer; Lori Watson; Shannon Winnubst; means of DOMA statutes—first in Utah in 1995, followed by and Timothy F. Murphy. Idaho, South Carolina, and Illinois in the spring of 1996. The federal DOMA was passed in September of 1996, and the publicity associated with that precipitated a flood of state DOMA initiatives between 1996 and 2000—twenty-nine additional FROM THE EDITOR DOMAs during that period, a total of thirty-seven to date. Over the past decade, anti-gay marriage forces shifted from a campaign for statutory marriage reform to the more We are devoting this entire issue to the matter of gay and radical (because more permanent) strategy of conveying lesbian marriage, as one of the most important political and state-wide public policy sentiment by means of constitutional moral issues of the day. Richard Nunan has looked closely at the amendments restricting marriage to heterosexual couples. This arguments in favor and against, and discusses them against the movement began with the 1998 Constitutional Amendments in 5 backdrop of key court decisions and likely legislative action. I Hawaii and Alaska, but didn’t really gather steam until the years hope for a wide readership for all the newsletters but especially following Vermont’s 1999 Supreme Court ruling that that state this one. Send it around promiscuously! constitution’s common benefits clause, which guarantees all citizens equal benefit and protection of Vermont law, entitled petitioning gay couples in Vermont to the same state-level benefits and protections afforded married couples.6 This led ultimately to Vermont’s civil union statute in 2000, the first ARTICLE serious attempt in the nation to provide a statutory vehicle extending to same-sex couples a set of legal rights and duties equivalent to those assigned to married heterosexual couples Constitutional Rights versus State Autonomy (again, at the state level only).7 Most anti-gay marriage amendments were enacted in and Direct Democracy: The Story So Far on direct response to the action of Vermont, and subsequent Same-Sex Marriage developments in Massachusetts, where the state supreme court ruled in 2003 that prohibition of same-sex marriages violated Richard Nunan both equal protection rights and the dignity of persons protected College of Charleston under the state constitution, and did so for irrational reasons.8 A few months later, the same court ruled that a civil union law The pace of the political and legal machinations surrounding would be inadequate to address the equal protection and due same-sex marriage has been accelerating to the point of process requirements of the Massachusetts Constitution.9 In bewilderment. Depending on where one looks, recent events consequence, the state legislature made Massachusetts the have been both remarkably promising and deeply troubling. first state in the nation to sanction gay marriages in May 2004. What follows is an attempt to summarize and make some It was then that the proponents of constitutional amendments sense of the story so far. redoubled their efforts: fourteen states ratified anti-gay marriage 1. Legislative and Judicial History constitutional amendments in the remainder of that year, and 10 Although there were some unsuccessful attempts to seek twelve more since. judicial ratification of same-sex marriage prior to the nineties,1 On the other side of the ledger, successes have been more the 1993 Hawaii Supreme Court’s equal protection ruling in modest: six states with same-sex marriage licensing in force or Baehr v. Levin2 really marks the beginning of the DOMA era, pending as of this writing: Massachusetts (2004), Connecticut the initiation of state and federal Defense of Marriage Acts: (2008), Iowa (April 2009), Vermont (April 2009; September legislative or referendum-based initiatives prohibiting same- 1, 2009, implementation date), Maine (May 2009; September sex marriages by statute. In trying to apply the equal protection 14, 2009, implementation date), and New Hampshire (June language of Hawaii’s State Constitution honestly, that state’s 2009; January 1, 2010, implementation date). Four states plus supreme court unleashed a firestorm, not just locally, but in the District of Columbia have civil unions or robust domestic other states fearing the prospect of being obliged, under the partnerships: California (1999, strengthened periodically since), — APA Newsletter, Fall 2009, Volume 09, Number 1 — New Jersey (2006), Oregon (2007), and Washington (2007, to meet that higher standard of review governing some classes strengthened in 2008).11 of equal protection violations under the state constitution. The This calculus is complicated by overlaps. In addition to following month Connecticut became the second state to begin the thirty-eight DOMA and/or constitutional prohibition states,12 offering same-sex marriage licenses. The timing, coming just three more (Maryland, New Hampshire, and Wyoming) have a week after the passage of Proposition 8 in California, was (or had) statutory requirements prohibiting same-sex marriages ironic. which predate the DOMA era, bringing that total to forty-one. Varner v. Brien,20 Iowa’s contribution to this national debate, But since Iowa has reversed its DOMA statute through court was decided on essentially the same reasoning as Kerrigan.21 action, and Maine and New Hampshire have reversed their But Varner was especially distinctive both in terms of geography statutes legislatively, that reduces the total number of states and of political culture. Iowa was the first state not in New hostile to same-sex unions to thirty-eight. By means of its England or on the West Coast to take such a step, and only domestic partnership statute, Washington has qualified, but not the second “purple” state (after New Hampshire) to sanction actually reversed, its same-sex marriage prohibition, reducing some form of same-sex unions. Most remarkable is the Court’s the hostile total to thirty-seven.13 Since there are actually only unanimity: the Massachusetts, California, and Connecticut ten significantly “pro-union” states at present count, the above decisions were all 4-3 splits. reckoning leaves three “neutral” states unaccounted for: New The recent legislative initiatives in Vermont, Maine, and Mexico, New York, and Rhode Island, which have neither DOMA New Hampshire do not conform to this pattern, however. None statutes nor constitutional amendments prohibiting same-sex of them were court-mandated. Vermont’s high court tolerated marriage, nor legislation favoring same-sex unions. New York civil unions nearly a decade ago. Maine and New Hampshire is unusual, however, in having administrative law (issued by have experienced no court action on same-sex unions.22 So Governor Paterson in 2008) recognizing same-sex marriages each of these legislative initiatives were entirely voluntary, performed elsewhere. marking the extent to which national public opinion has shifted With one early exception (California, discussed below), on this topic. until very recently most successful same-sex union and same- sex marriage initiatives have been provoked by court rulings. 2. Electoral Backlash: Judicially Mandated Reform This was true not only in Vermont and Massachusetts, as Strategy and Its Critics previously discussed, but also in New Jersey, when its supreme The past few years have been marked not only by further court ruled in October 2006 that New Jersey’s 2004 domestic splintering in the same-sex marriage policies of individual states, partnership law was inadequate to the job of ensuring equal but also by an increasingly reflective national discourse on the rights for gay couples in New Jersey.14 The state legislature opted subject of gay rights generally. Public sentiment concerning gays for the Vermont solution, enacting New Jersey’s civil union and lesbians in the military is a useful barometer of the cultural law two months later.15 A similar pattern unfolded in three of sea change we are currently experiencing. A recent Washington the most recent cases, in California (May 2008), Connecticut Post-ABC News poll indicates that 75 percent of Americans now (October 2008), and most recently in Iowa (April 2009), all believe the Clinton-era “Don’t Ask Don’t Tell” policy should of which, like Goodridge in Massachusetts, upheld same-sex be scrapped, reflecting a dramatic shift in polling since the marriage on state constitutional grounds. policy was first crafted in 1993, when 44 percent regarded it as In California, although the state legislature independently untenable.23 Even Colin Powell, Chairman of the Joint Chiefs endorsed the California equivalent of civil unions much in the early years of the Clinton Administration, has conceded earlier, it was by court action that same-sex marriage was in a recent (04/02/09) interview with MSNBC News talk-show authorized in that state for a brief half-year window, when host Rachel Maddow that the policy ought to be reviewed, and the California Supreme Court struck down Proposition 22, a that he would now support its elimination. This is coming from statutory referendum which explicitly restricted marriage to the chief architect of “Don’t Ask Don’t Tell,” whose position heterosexual unions, endorsed by California voters back in 2000.

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