April to June 2005: You win some, but mostly you lose some

More forcible divorces, amendments, and DOMAs…

In April, the Oregon Supreme Court issues its ruling in Li v. Oregon. Like the Hawaii and Alaska courts did in the Baehr and Brause cases, the Oregon court defers to the newly-passed state constitutional amendment. In so doing, it forcibly divorces 3,000 happily-married same-sex couples.

Kansas becomes the 18th state to amend its constitution, while Connecticut takes an unusual route by simultaneously adopting civil unions and DOMA.

…but you can’t keep same-sex couples from having any rights.

In May, however, the US District Court for Nebraska issues a positive ruling in the Citizens For Equal Protection case. While the ruling doesn’t say that same-sex couples have any rights whatsoever, let alone the right to marry, it does say that the Nebraska constitutional amendment, the one passed in 2003, is simply mean-spirited and goes too far.

By denying recognition even of any form of civil union, the law goes beyond merely regulating marriage. The court says the Nebraska amendment is just like the Colorado amendment that was overturned in 1996’s Romer decision that precluded gay people from any protections under the law. (This decision is overturned by the US Circuit Court Of Appeals in 2006, however.)

You can, however, use religion to keep them from the right to marry (in New Jersey, anyway)…

June ends on two sour notes.

The New Jersey Court Of Appeals rules against the couples in Lewis v. Harris, filed in 2002. It says that, because marriage of same-sex couples is not traditional, it is therefore not a civil right. It cites religious arguments twelve times in its pages, saying that because the religious foundations of the institution recognize only mixed-sex marriages, that is the way marriage should be. It also rules that the purpose of marriage is procreation. The case is now on appeal to the New Jersey Supreme Court.

…and (in California), fundamental civil rights aren’t really for everyone.

That same week, the US District Court for California rules against same-sex couples in Smelt v. Orange County. This was the case that was the first to challenge the federal DOMA. The court rules that, while marriage is indeed a fundamental right, that fundamental right does not extend to same-sex couples. And that even though the federal law does harm homosexuals as a class, it is within the bounds of congressional powers to do so.

Timeline key: progress (green), no progress (red), pending court cases (purple),
events that are neutral, not directly related, or with both positive and negative effects (black)