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THE WEDDING BELLS HEARD AROUND the WORLD: YEARS from Now, WILL WE WONDER WHY WE WORRIED ABOUT SAME- SEX MARRIAGE?

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THE WEDDING BELLS HEARD AROUND the WORLD: YEARS from Now, WILL WE WONDER WHY WE WORRIED ABOUT SAME- SEX MARRIAGE? THE WEDDING BELLS HEARD AROUND THE WORLD: YEARS FROM Now, WILL WE WONDER WHY WE WORRIED ABOUT SAME- SEX MARRIAGE? MARK E. WOJCIK* TABLE OF CONTENTS I. INTROD UCTION ................................................................................. 590 II. A SURVEY OF IMPORTANT DEVELOPMENTS: How DID WE GET WHERE WE ARE, AND WHERE IS IT THAT WE ARE GOING? .......... 603 A. TRADITIONAL PROHIBITION ..................................................... 603 B. INTERNATIONAL DEVELOPMENTS ................................... 607 C. SUCCESS FOR SAME-SEX MARRIAGE IN THE UNITED STATES, STOLEN BY AMENDMENTS TO THE STATE CONSTITUTIONS OF HAW AI'I AND ALASKA .............................................................. 616 D. THE DEFENSE OF MARRIAGE ACT ............................................. 619 E. ROM ER V. EVANS ........................................................................ 622 F. "COMMON BENEFITS" UNDER THE VERMONT STATE CONSTITUTION-VERMONT CIVIL UNIONS ................................. 627 G. CANADIAN COURTS RECOGNIZE A RIGHT FOR SAME-SEX COUPLES TO MARRY ...................................................... 636 H. LAWRENCE V. TEXAS AND THE DEATH OF BOWERS V. HARDWICK-THE VICTORY OF DUE PROCESS ............................. 647 * Associate Professor of Law, The John Marshall Law School, Chicago. I thank the many individuals who reviewed earlier drafts of this article or who answered particular points of concern for my research. I thank Elvia R. Arriola, Yvette M. Barksdale, Gerald E. Berendt, Charles R. Calleros, Michael L. Closen, Susan Marie Connor, Linda R. Crane, Karen Halverson, John D. Ingram, R. Gilbert Johnston, Allen Kamp, Diane S. Kaplan, William B. Kelley, Walter J. Kendall III, Andrew Koppelman, Patricia M. Logue, Ann M. Lousin, Roger V. McCaffrey, William B.T. Mock, Jr., Timothy P. O'Neill, Leslie Reis, Julie Spanbauer, Camilla Taylor, Paul T. Wangerin, Richard Wilson, and Evan Wolfson. For the title of this article, I thank Tracy Baim. I thank my research assistants Larissa Morgan, Ezra Spilke, Mario Sullivan, and Michael Roberts; I also thank the editors of the Northern Illinois University Law Review. My greatest thanks, however, go to David Austin, my partner of almost 10 years, who has been my greatest supporter, friend, and the best editor anyone could ask for. The research on this article was completed in April 2004, just before lawful same-sex marriages were expected to be performed in Massachusetts. NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 24 I. SAME-SEX MARRIAGE FINALLY COMES TO THE UNITED STATES: GOODRIDGE V. DEPARTMENT OF PUBLIC HEALTH ........ 657 III. ADDITIONAL OBSERVATIONS AND CONCLUSIONS .......................... 677 If there is no struggle there is no progress. Those who profess to favorfreedom and yet depreciate agitation... want crops without plowing up the ground, they want rain without thunder and lightening. They want the ocean without the awful roar of its many waters .... Power concedes nothing without a demand. It never did and it never will.' I. INTRODUCTION Few people can deny the social and legal importance of civil marriage as an institution. "Because it fulfills yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life's momentous acts of self-definition. 2 Those words, found in a recent court decision from the Supreme Judicial Court of Massachusetts, reflect the sentiment that supports extending the protections, benefits, and duties of civil marriage to "same-sex couples ' 3 that have traditionally been I. Susan Arnold, Countdown to Gay Marriage: Massachusetts Embraces Same- Sex Civil Marriages, PINK PAGES 27 (Winter 2004) (interview with Hillary Goodridge, lead plaintiff in the Massachusetts same-sex marriage case, who quoted these words from Frederick Douglass). 2. Goodridge v. Department of Public Health, 798 N.E.2d 941,955 (Mass. 2003). 3. This article will generally use the terms "same-sex couples" or "same-sex marriage" rather than "gay marriage" or "homosexual marriage" to describe two men or two women who wish to marry. The term "same-sex marriage" recognizes that a marriage may be between two persons who are gay or lesbian, or between two persons who are each bisexual, or between a gay person and a person who is bisexual. See, e.g., Goodridge, 798 N.E.2d at 953 n. 11; Baehr v. Lewin, 852 P.2d 44, 55 n.lI (Haw. 1993). The term also recognizes some - but not all - of the legal issues that may arise with the marriages of transgendered persons, both before and after sex change surgery. Discussions of transsexual marriage provide valuable insights on ideas and presumptions surrounding gender roles, gender equality, and the fundamental values of love and personal commitment for a happy and successful marriage. See generally, e.g., Helen G. Berrigan, Transsexual Marriage: A Trans-Atlantic Judicial Dialogue, 12 TUL. J.L. & SEXUALITY 87 (2003). See also Taylor Flynn, Transforming the Debate: Why We Need to Include Transgender Rights in the Struggles for Sex and Sexual Orientation Equality, 101 COLUM. L. REV. 392 (2001). Legal and political issues surrounding transgender marriage continue to develop in the United 20041 SAME-SEX MARRIAGE denied the right to marry.4 The court ordered that same-sex couples in Massachusetts should have the right to marry as of May 17, 2004,5 the date that marks the fiftieth anniversary of the6 U.S. Supreme Court's landmark decision in Brown v. Board of Education. The same-sex marriage debate in the United States and other countries has been characterized by a good deal of misinformation, misunderstanding, and false fears. Same-sex marriage has also been one of the most passionately debated subjects in our law, religion, politics, and culture.7 The debate is not only in legislatures and courtrooms, but also on the streets and in society at large.8 For their part, same-sex couples wonder about the hypocrisy of those who claim a need to preserve the "sanctity" of opposite-sex marriage, 9 particularly in light of "Marriage Reality Shows" States and other countries. See, e.g., In re Marriage License for Nash, Nos. 2002-T-0149, 2002-T-0179, 2003 WL 23097095 (Ohio. App. 2003) (denying transsexual the right to marry); Rex Wockner, Chinese Trans Gets Married,WINDY CITY TIMEs, Jan. 28, 2004, at 9. Issues arise not only in the right to marry, but also in all aspects of daily life. See, e.g., Goins v. West Group, 635 N.W.2d 717 (Minn. 2001). 4. A similar sentiment can be found in part of a court decision from Ontario: Marriage is, without dispute, one of the most significant forms of personal relationships. For centuries, marriage has been a basic element of social organization in societies around the world. Through the institution of marriage, individuals can publicly express their love and commitment to each other. Through this institution, society publicly recognizes expressions of love and commitment between individuals, granting them respect and legitimacy as a couple. This public recognition and sanction of marital relationships reflect society's approbation of the personal hopes, desires and aspirations that underlie loving, committed conjugal relationships. This can only enhance an individual's sense of self-worth and dignity. Halpem v. Toronto (City), 172 O.A.C. 276, 1 5 (2003). 5. See, e.g., Frank Langfitt, Court Says Gays Entitled to Marriage-Massachusetts Sets Stage for 1st Same-Sex Wedding, CHI. TRIB., Feb. 5, 2004, § 1,at 1;Jennifer Peter, Court Demands Gay Marriage - Massachusetts Opinion Says Civil Unions Won't Cut It, CHI. SUN-TIMES, Feb. 5, 2004, at 3. 6. 347 U.S. 483 (1954). See also, e.g., Dennis W. Archer, The Blessings of Brown, A.B.A. J.,Apr. 2004, at 8. 7. See, e.g., Karen Breslau, A 'Wildfire' Burns On, NEWSWEEK, Mar. 15, 2004, at 10; Michael Slackman, Party Lines Blur as Gay Activists Take the Same-Sex MarriageIssue Front and Center, N.Y. Times, Mar. 7, 2004, at 21; Stevenson Swanson, Same-Sex Marriage Leaping Into Election, CHI. TRIB., Feb. 15, 2004, § I, at 1, 17; Nikki Usher, Gays Rally for Marriage,CHI. TRIB., Feb. 15, 2004, § 4, at 3. 8. See, e.g., Andrew Jacobs, Gay Legislatorat the Center of a Storm in Georgia, N.Y. TIMES, Mar. 9, 2004, at A18; Lisa Neff, U.S. House Holds Marriage Hearing, CHI. FREE PRESS, Apr. 7, 2004, at 7; Gina Kim, Gay ProtestersTake to Street, CHI. TRIB., Mar. 5, 2004, § 2, at I. 9. See, e.g., Andrew Sullivan, The Sacred and the Pop Star, THE ADVOC., Feb. 17, 2004, at 72 ("Newt Gingrich was defending civilization against gay marriages while NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 24 on U.S. television and well-publicized marital fiascos such as the midnight spur-of-the-moment marriage of singer Britney Spears to Jason Allen Alexander (and annulment of that marriage about fifty-five hours later).' Before there was intense national news coverage on the issue of same- sex marriage, many people wrongly believed that lawful same-sex marriage had already been available in the United States and other countries for many years." This confusion was, perhaps, understandable, given the variety of misleading press reports about registered partnerships and same- sex marriages in other countries, reports about the legal effect of "domestic partnership registries" in various local jurisdictions in the United States, and descriptions of Vermont Civil Unions as being the functional equivalent of marriage all except in name. The confusion was perhaps also attributable to popular
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