Gay Couples
| Author | Jeffrey Wilson |
| Pages | 791-795 |
Page 791
Within the already controversial realm of gay rights, no area is more controversial than gay marriage. For some, the idea that homosexual couples should have the same matrimonial benefits as heterosexual couples is purely a question of civil rights. According to this argument, the constitutional concepts of equal protection and due process require that same-sex couples be treated no differently than heterosexual married couples. Others see homosexual marriage as a moral question, and conclude that such unions violate traditional ethical values found in the Judeo-Christian moral tradition. Another argument is that it undermines family values: heterosexual marriage is founded upon the need to procreate, but that is something homosexual couples cannot do. To counter this argument, those in favor of same-sex marriages note that elderly, disabled, and infertile people are free to marry without thought to procreation, and that advances in fertility technology have opened many paths to parenthood.
The debate over gay marriage is not confined to the marriage ceremony itself, although being allowed to participate legally in that rite drives much of the emotionalism of the debate. It also has a more pragmatic side, including issues such as whether same-sex couples should receive the same tax and estate advantages, the same rights to surviving children, the same community property rights, and the same health care benefits as heterosexual couples.
Although same-sex marriages have occurred privately for years, only recently has the issue been litigated. Only since 1993, with the Hawaii Supreme Court decision in Baehr v. Lewin, have gay rights supporters seen any measurable progress in state laws concerning homosexual marriage. Since that decision, both sides in the battle over same-sex marriage have experienced some victories and some setbacks.
Unions between two members of the same sex in some sort of ceremony, religious or otherwise, existed for many years before the anyone sought to gain legal recognition of them. Generally, these unions
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were kept private, with knowledge limited to immediate friends and family members. Then, in 1971 the first lawsuit seeking to legalize a same-sex marriage was filed. Baker v. Nelson was inspired by the 1967 U.S. Supreme Court decision in Loving v. Virginia. In Loving, the Supreme Court invalidated a statestatute that prohibited interracial marriage. The court ruled that to deny marriage on the basis of race was a violation of the constitutional principles of equal protection and due process of law, because the law had "no legitimate purpose independent of invidious racial discrimination."
The Minnesota Supreme Court was not swayed by the reasoning in Loving. It struck down Jack Baker's attempt to gain legal status for his marriage to Mike McConnell. The court ruled that marriage was by definition between a man and a woman, and thus, unlike in Loving, there was no fundamental right to marry. Moreover, in a 1974 case, the Washington Supreme Court determined that the state's Equal Rights Amendment could not be held to allow homosexuals the right to marry. The law provided protection only on the basis of sex, not sexual orientation.
Following these cases, all attempts failed to get a state or federal court to recognize the right of homosexuals to marry. There were decisions allowing unmarried partners to sue for enforcement of promises of support or financial sharing (so-called "palimony" cases), beginning with the landmark Marvin v. Marvin case involving actor Lee Marvin in California in 1976. Gays also attempted to form legal relationships by having one partner "adopt" the other. Some municipalities, beginning with Berkeley in 1984, adopted domestic partnership laws that extended some recognition and benefits of marriage to registered same-sex couples. But gay activists considered that these gains fell far short of their ultimate goal: granting marriage recognition to gay unions.
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