Fall 2006: Is this progress?

Rhode Island couples get to marry – in Massachusetts

In Massachusetts, a lower court rules that Rhode Island couples – but only Rhode Island couples – can also marry in Massachusetts. The issue in Cote-Whitacre v. DPH, first filed in 2004, is whether out-of-state couples can marry in Massachusetts. For opposite-sex couples, this isn’t an issue – they can marry in any state their hearts desire. But of course same-sex couples must be treated differently.

When Massachusetts first began allowing same-sex couples to marry in 2004, Gov. Romney revived a long-dead law that prohibited out-of-state couples from marrying in the state if they couldn’t marry in their home state. Originally adopted in 1913, the law’s original discriminatory purpose was to prevent out-of-state mixed-race couples from marrying in Massachusetts. Although the law had passed out of use and state agencies had previously been directed to stop enforcing it, it remained on the books.

When the law was revived in 2004 to keep them from marrying, eight same-sex couples from six New England states sued to have the law overturned. The state’s Supreme Judicial Court ruled in March 2006, however, that the law could be revived and enforced. But it did leave the door ajar for couples from states that did not explicitly prohibit same-sex couples from marrying.

The state supreme court sent the case back to the lower court to determine which of the six states, if any, met that criterion. By the time the lower court rules, Rhode Island is the only such state – leading to the illogical result that Rhode Island same-sex couples can marry in Massachusetts because their marriage isn’t explicity prohibited in their state, yet they are not permitted to marry in their own state.

California couples get no help from the intermediate court…

In the consolidated Marriage Cases, including Woo v. Lockyer, the California Court Of Appeal overrules the earlier favorable decision of the lower court. The intermediate court says that same-sex couples “are asking this court to recognize a new right”. And since it’s not in the habit of handing out new rights, it’s constitutional for same-sex couples to be denied the right to marry in California. The case is appealed to the state supreme court which agrees to hear it.

…while New Jersey couples get civil unions

In Lewis v. Harris, there is ultimate – though unsatisfactory – resolution of the case filed in 2002. The New Jersey state supreme court rules that,

Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of… the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process.

In its decision the court pats itself on the back heartily for recognizing the equal protection rights of same-sex couples, then uses that recognition to justify why it need not grant marriage:

Under our equal protection jurisprudence, however, plaintiffs’ claimed right to the name of marriage is surely not the same now that equal rights and benefits must be conferred on committed same-sex couples.

“You have ‘equal’ rights. You don’t need marriage now.” The court fails to recognize that “equal” would mean marriage. It also fails to explain why opposite-sex couples have a fundamental right to the term “marriage” but it constitutes equal treatment to leave it “to the democratic process” when it comes to same-sex couples.

The New Jersey legislature – not surprisingly – adopts civil unions, not marriage, for same-sex couples.

And seven states amend their constitutions – while one votes against it

In what has become a November tradition, seven states amend their constitutions to discriminate against same-sex couples wanting to marry, bringing the total to 26 such states. But one state, Arizona, defies convention to become the first state to vote against such an amendment.

The Supreme Court stays out of it

And in a move that brings a sigh of relief to marriage equality advocates, the US Supreme Court declines to review Smelt v. Orange Co. The case, filed in 2004, sought to overturn the federal DOMA. Because so little precedent has been created in the states, and given the court’s current makeup of conservative jurists, it is felt that having the US Supreme Court rule on the issue now would almost surely result in a ruling against same-sex couples, setting back their cause by years if not decades.

But South Africa does the right thing

The South African constitution explicitly prohibits discrimination on several grounds including sexual orientation. When presented with a court case concerning marriage equality, the South African supreme court rules that marriage must be available to same-sex couples. It thereby becomes the fifth nation 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)