[fblike]
Since November 2003, when the Massachusetts Supreme Judicial Court ruled in Goodridge v. Department of Public Health that gay couples in Massachusetts had a right to marry, gay marriage has been a hot political topic. Some could also argue that the passage of the Defense of Marriage Act (DOMA) in 1996 made gay marriage a political issue, but the 2003 Massachusetts ruling in conjunction with San Francisco Mayor Gavin Newsom ordering his city to issue marriage licenses to gay couples in 2004 made the gay marriage debate a more prominent national issue. President George W. Bush was able to use state-level constitutional amendments that prohibited gay marriage to provide momentum to his re-election campaign in 2004 and push for a national constitutional amendment to ban the practice. Since 2004 the proponents of gay marriage have experienced significant judicial victories, with the Supreme Court invalidating an element of DOMA last year and four states legalizing gay marriage after the decision: New Jersey, Hawaii, Illinois, and New Mexico. Currently, seventeen states, along with the District of Columbia, recognize gay marriage and lawsuits are pending in federal courts to invalidate state constitutional amendments that prohibit gay marriage. Due to the growing number of lawsuits on the state level against gay marriage prohibitions, it only seems like a matter of time before the Supreme Court will have to weigh in about gay marriage again and extempers could confront questions about the constitutionality of gay marriage in the near future.
This topic brief will provide a brief history about the gay marriage debate, break down judicial decisions that are pending concerning the issue, and then provide a brief analysis of how gay rights could impact American foreign policy.
Readers are also encouraged to use the links below and in the related R&D to bolster their files about this topic.
The Gay Marriage Debate
The gay marriage debate became a national issue in the 1990s when Hawaii’s Supreme Court ruled in 1993 in the case of Baehr v. Miike that Hawaii’s refusal to allow gay couples to marry violated the state constitution’s equal protection clause. The decision alarmed social conservatives, who hold that traditional marriage is a bedrock of society. Social conservatives feared that if Hawaii began marrying gay couples that these couples would seek to have their marriages recognized in the other forty-nine states, which would thereby allow Hawaii to determine the definition of recognized marriage nationwide. To prevent this, Congress passed the Defense of Marriage Act (DOMA) in 1996. The legislation enjoyed bipartisan support and President Bill Clinton signed the measure into law in September of that year. DOMA defined heterosexual marriage as the only valid definition of marriage in federal law, meaning that federal marriage benefits relating to insurance, taxes, and other social programs like Social Security would only be granted to heterosexual couples. Additionally, DOMA gave states and U.S. territories the power to not recognize gay marriages performed in other states. In other words, if a U.S. state allowed for gay marriage or civil unions, which offer many of the same benefits as married couples without actually recognizing the union as a marriage (Vermont was the first to recognize these in 2000), other states could deny recognition of that marriage if a gay couple who was married in another state moved into its territory. As far as the Baehr decision that sparked DOMA goes, Hawaii voters in 1998 approved a constitutional amendment that reserved marriage for heterosexual couples, which invalidated the 1993 Supreme Court ruling.
The gay marriage issue continued to be fought at the state level with limited success until November 18, 2003 when the Massachusetts Supreme Judicial Court ruled in Goodridge v. Department of Public Health that the Massachusetts state constitution allowed for gay marriage. The litigation had been ongoing since 2001 when seven gay couples sued the Massachusetts Department of Health after being denied marriage licenses. The Court found in a 4-3 decision that the denial of marriage licenses to gay couples relegated them to second-class status and violated the state’s obligation to provide for the equality of all its citizens. On May 17, 2004 Massachusetts began to issue marriage licenses to gay couples, which made it the first state in the country to legalize gay marriages. Interestingly enough, Mitt Romney, the 2012 Republican presidential nominee, was the acting governor of the state at the time.
After the Massachusetts ruling, states began the process of enacting state constitutional prohibitions against gay marriage. The logic behind this action was that state courts are bound to follow their state constitutions, so if gay marriage was prohibited in the document then they could not grant gay couples the right to marry. The provisions of DOMA insulated states from having to recognize gay marriages performed in Massachusetts as well. During the 2004 presidential election, Democrats and John Kerry were placed on the defensive by social conservatives and President George W. Bush concerning the gay marriage issue and a majority of the public at the time in polls showed a dislike for allowing gay marriages to proceed. In fact, Kerry made a blunder in that election by pointing out that Vice-President Dick Cheney’s daughter, Mary, was a lesbian and trying to call attention to how it made little sense for Cheney to align himself with Bush, who was a supporter of traditional marriage. Voters found the comment tasteless and interfering in a private matter, which may have cost Kerry some much needed votes in the close election. Ballot measures in battleground states like Ohio may have helped turn out socially conservative voters for Bush and help him win a slim victory over Kerry in the Electoral College.
Despite Bush trying to push Congress, which at the time was controlled by Republicans, to pass an amendment to the U.S. Constitution that would prohibit gay marriage, the effort went nowhere since it could not secure the two-thirds majority in each chamber to go to the states for ratification. In 2008, California and Connecticut saw their state Supreme Courts rule that gay marriage should be legalized. Connecticut’s state legislature enacted statutory enforcement for gay marriage, but voters in California used the powers of direct democracy to thwart the ruling by passing Proposition 8 in November 2008. Ballot propositions in California allow voters to circumvent the state legislature and pass amendments to the state constitution (sometimes state laws are enacted under these means as well) and the measure passed with 52% of the vote. Proposition 8 banned gay marriages within the state by defining heterosexual marriage as the only type of marriage that should be allowed.
Last year, the Supreme Court of the United States considered two cases related to gay marriage. One case, Hollingsworth v. Perry, concerned Proposition 8 and whether federal court rulings that had declared it unconstitutional on Fourteenth Amendment grounds as a violation of the Equal Protection Clause could stand. The other case, United States v. Windsor, concerned the constitutionality of DOMA. In Hollingsworth, in a 5-4 vote, the Supreme Court refused to overturn the decision of the Ninth Circuit Court of Appeals that had upheld the decision of lower courts by invalidating Proposition 8 on constitutional grounds. In a convoluted decision, the Court found that those arguing the Ninth Circuit’s decision by overturned lacked standing before the Court since they were not state officials. Since the Court decided that the petitioners appealing the Ninth Circuit’s decision lacked standing it did not bother looking at other issues raised in the case, namely whether states have a constitutional right to define marriage within their borders.
Windsor was the larger of the two cases. In 2011, Attorney General Eric Holder announced that the Justice Department would not defend the constitutionality of DOMA since the Obama administration considered the law to be unconstitutional. Conservative commentators criticized the President’s decision since he is supposed to uphold existing federal laws, even those he may not agree with. The President’s defenders argued that the President also takes an oath to defend and uphold the Constitution and is not bound to defend unconstitutional laws. Since the Justice Department refused to fight litigation at the Supreme Court against DOMA, the House Bipartisan Legal Advisory Group (BLAG) defended the law. If the Republicans did not control the House, it is very likely that this would not have occurred since Democrats would have been unlikely to authorize BLAG to defend the law. In fact, BLAG only chose to defend the law by a 3-2 vote. In a 5-4 decision, where swing justice Anthony Kennedy, a Ronald Reagan appointee, voted with the Supreme Court’s liberal members, Section 3 of DOMA, which concerned the definition of marriage as an exclusively heterosexual action, was found unconstitutional on Fifth Amendment grounds. The Court found that an exclusively heterosexual definition of marriage deprived individuals of liberty. Kennedy’s decision also incorporated some elements of how Section 3 violated equal protection under the law, but did not exclusively find DOMA in violation of the Fourteenth Amendment’s Equal Protection Clause. The Economist of December 24th adds to this by pointing out that the Court found that DOMA’s effect was to “disparage and injure” homosexuals and that the federal government had no rational basis for making marriage the exclusive property of heterosexuals.
The Supreme Court’s ruling in Windsor thereby invalidated the federal government’s definition of marriage as between a man and a woman and allowed gay couples that are married at the state level to receive marriage benefits. A few months after the decision, New Jersey’s state court system found that state’s refusal to recognize gay marriages as violating Windsor and the case recently became the justification for a U.S. District Court judge to find Utah’s constitutional prohibition against gay marriage unconstitutional. However, extempers should be aware that Windsor does not force states to recognize gay marriages. Section 2 of DOMA was not found unconstitutional in the ruling, so states currently do not have to recognize gay marriages from other states. Also, the Supreme Court did not rule in Windsor whether state constitutional prohibitions against gay marriage violate the U.S. Constitution. Federal judges are assuming that Kennedy’s ruling is paving the way for the Court to recognize that state prohibitions against gay marriage are unconstitutional, but the Supreme Court has not taken that action yet. This has sparked more litigation in the federal court system which is seeking to argue that state constitutional bans violate the U.S. Constitution. In the U.S. judicial system the federal constitution trumps state constitutional law, so this is why gay rights groups are going through this venue.
Ongoing Litigation
Extempers should be paying close attention to lawsuits that are working their way through the federal court system as it pertains to state constitutional prohibitions against gay marriage. The Huffington Post on January 15th explains that while seventeen states and the District of Columbia allow gay marriages, twenty-seven states prohibit gay marriage via constitutional amendment, and four states – Indiana, Pennsylvania, West Virginia, and Wyoming – forbid gay marriage via statutory law. Currently, twenty of these states are facing litigation from gay rights groups that allege that their laws are incompatible with the U.S. Constitution because they violate the Equal Protection Clause. Due to the growing amount of litigation against these states, it is very likely that the Supreme Court will be forced to revisit this issue in the near future as these cases work their way through the federal judiciary.
One of the states to attract attention last week was Virginia. Virginia has a constitutional prohibition on gay marriage, called the Marshall-Newman Amendment. Slate reports on January 23rd that voters approved of this measure in November 2006 by a 57-46% vote. Virginia is being sued in federal court over its constitutional ban and newly elected Attorney General Mark Herring, a Democrat and the first Democrat to win the job since 1993, has recently announced that he will not oppose plaintiffs in the case. Herring’s predecessor was the socially conservative Ken Cuccinelli, who unsuccessfully sought the governorship last year against Terry McAuliffe. U.S. News & World Report on January 24th alleges that Herring’s actions might be politically motivated, since he is considered a potential Democratic candidate for governor in four years and he needed to establish his credentials with Democratic liberals. Herring voted against gay marriage while a member of the State Senate in 2006. Herring’s actions mirror those of Holder in the Windsor case by deciding not to uphold the state’s existing laws and conservatives allege that his actions circumvent the will of voters who put the Marshall-Newman Amendment into the state constitution. Politico on January 23rd reports that Herring’s justification for not defending the state constitutional amendment is that he does not want Virginia to be on the “wrong side of history” since the state was a loser in Brown v. Board in 1954, which desegregated American schools, and Loving v. Virginia in 1967 when the Supreme Court struck down state bans against interracial marriage.
Virginia, which was a traditionally “red state” until recently, has been joined by Utah and Oklahoma in facing litigation over its state constitutional bans against gay marriage. Earlier this month, a federal district judge struck down Oklahoma’s state constitutional ban. The justification for the ruling, as The Christian Science Monitor writes on January 14th, was that the ban violated the Fourteenth Amendment to the Constitution and constituted an “arbitrary, irrational exclusion of just one class of Oklahoma citizens from a government benefit.” The judge did not find Oklahoma’s justifications for the ban, which included encouraging procreation, fostering a safe environment for children, and threatening traditional marital relationships, convincing. Utah has also faced an unfavorable ruling against its constitutional ban on gay marriage which also passed in 2004 by a two-to-one margin. Last month, a federal district judge ruled that gay couples have the right to marry under the U.S. Constitution and invalidated the bam. The Huffington Post on January 16th writes that Utah Governor Gary Herbert has vowed to defend the state amendment and the state is appealing the decision to the Tenth Circuit Court of Appeals. For seventeen days, more than 1,000 gay couples married in Utah before the Supreme Court issued a stay that allows Utah’s constitutional ban to remain in place pending judicial review. However, Attorney General Holder has outraged conservatives by federally recognizing the marriages. Slate on January 13th says that conservatives are arguing that Holder is making up the law as he goes, whereas The Christian Science Monitor on January 10th says that Holder’s move is to make it harder for a federal appeals court to rule Utah’s constitutional ban as compatible with the U.S. Constitution, which would strip these couples of marriage benefits. The Utah and Oklahoma cases will now move to the ten-member Tenth Circuit Court of Appeals in Denver, Colorado and extempers should follow the decision made in that chamber closely because whatever the outcome it is likely that it will be appealed to the Supreme Court. The Denver Post on January 15th provides an excellent overview of the Tenth Circuit system and breaks down all of the judges that could hear the cases, so it is something that extempers should save for their files. In fact, The Wall Street Journal argues on January 6th that the Supreme Court’s stay of Utah’s gay marriage ban was likely done to slow down lower federal court actions against state constitutional bans on gay marriage so that less damage is done if it finds the amendments constitutional at a later date.
Aside from Oklahoma and Utah, other conservative states are seeing their bans tested. The Associated Press on January 15th breaks down some of these cases. North Carolina is facing a federal lawsuit over its 2012 constitutional amendment that bars gay marriage. Kentucky is facing two lawsuits from gay couples that wish to have their marriages performed outside of the state recognized, which is currently not possible under the state’s 2004 constitutional ban. Mississippi is also facing a lawsuit after it refused to divorce a gay couple that was married in California. The Christian Science Monitor on January 21st reveals that Florida is facing a lawsuit from six gay couples over its 2008 constitutional ban on gay marriage, with gay rights groups alleging that the state is creating a stigma toward homosexuals that creates an atmosphere of intolerance and discrimination. The Christian Science Monitor breaks down lawsuits and state legislative actions toward gay marriage in other states on January 6th as well and extempers should cut this article as it discusses the actions taken toward gay marriage in Oregon, Michigan, Arizona, Colorado, Ohio, Nevada, and Pennsylvania.
One of the more interesting political battles that is developing is in Indiana. Indiana voted for President Obama in 2008, but was one of the few states that switched its support to Mitt Romney in the 2012 presidential election. The state’s current governor, Republican Mike Pence, is a potential presidential candidate in 2016 and The Indianapolis Star on January 15th states that Pence has called for the state legislature to resolve the gay marriage issue. Pence is a defender of traditional marriage and a social conservative, so he would like the state legislature to approve of a gay marriage ban via amendment, which conservative forces argue would be stronger than the state’s current statutory ban on gay marriage. According to The Chicago Tribune on January 23rd Indiana is bucking the trend of other states that have either overturned previous legislation toward gay marriage or are moving away from the enactment of future legislation.
Additionally, there are some political observers that are worried that judicial action toward gay marriage that circumvents state legislatures could harm some elements of the gay rights movement. The Associated Press on January 20th reveals that as more conservative states have their constitutional bans challenged that it could create another Roe v. Wade situation where the court systems settle a divisive social issue that is against the will of voters. This could make any gains regarding gay marriage appear fragile. Conservatives feel that their ideas are currently under siege and The Huffington Post on January 22nd notes that 63% of Republicans think that more states will legalize gay marriage, although only 24% of them favor marriage equality. Defenders of gay marriage point out, though, that if state legislatures were left to decide the issue that it would take a long time for gay marriage to become legal in these states and homosexuals would continue to have second-class status. They also point out that polls are showing more receptive attitudes of the public toward gay marriage, so political and social backlash to judicial decisions will be limited. Slate on January 17th points out that Utah is split 48-48% on gay marriage and The Huffington Post on January 15th explains that just 33% of Americans now oppose gay marriage, which is down from 45% in 2011.
American Foreign Policy & Gay Rights
As America continues to embrace segments of the gay rights agenda, it will be interesting to see how this affects American foreign policy. President Obama has made it a goal of his presidency to fight for gay rights in the developing world, where many homosexuals are persecuted. This has played into the Winter Olympics in light of Russia “gay propaganda” law. The National Journal on January 23rd provides an interesting overview of the international gay rights movement and explains that although social conservatives are losing ground against gay rights in the Western world they are enjoying more success in Africa, where conservative forms of Christianity have proliferated, Russia, where the Eastern Orthodox Church is on the rise, and even elements of the Middle East, which discourage homosexuality. In fact, former Iranian President Mahmoud Ahmadinejad made headlines in 2010 when he visited Yale University and insisted that there were no gays in Iran. For conservatives in the developing world, the gay rights agenda is a form of Western imperialism. They fear that the gay rights agenda is anti-Christian and will produce social upheaval. This explains why countries like Nigeria have recently passed more severe anti-gay legislation that outlaws advocacy of lesbian, gay, bisexual, and transgender (LGBT) issues. Uganda has also passed legislation that provides life sentences for “aggravated homosexuality.” India, a rising international economic power, has seen its Supreme Court recently recriminalize homosexuality and gay rights supporters fear that China may grow hostile to the gay rights agenda if gay activists in that country become more political. In the world today, there are seventy-seven countries that outlaw homosexuality. This compares with sixteen that allow for gay marriage, so the United States is in a very tiny minority of the world that has endorsed the new frontier of gay rights.
As the United States continues to reach out to the developing world through aid programs and trade assistance ventures, the gay rights agenda could cloud some of its ties to these nations. For example, the Agence France-Presse reports on January 15th that the United States has announced that it is “deeply concerned” about Nigeria’s anti-gay rights legislation. Nigeria is a growing economic power in Africa and is interesting from a religious perspective because conservative Muslims dominate the northern half of the country, while conservative evangelical Christian groups dominate its southern half. There have been mentions of Nigeria as a candidate in the future for a permanent United Nations Security Council seat, but if the United States has concerns about Nigeria’s human rights record it might be difficult for Nigeria to obtain this position. Also, as China continues to expand economically into Africa, which is still rich with mineral resources and other raw materials, the United States is going to have to balance its economic needs with those of its human rights record. China does not care about the human rights records of the nations that it works with, but the United States has been very hesitant to engage in relationships with nations that have poor human rights records. The Globe and Mail of January 15th explains that the United Nations has criticized African nations, especially Nigeria, over anti-gay legislation, but this has only outraged some African leaders. African leaders are growing increasingly suspicious of international institutions, notably the International Criminal Court (ICC), which see as a tool to oppress Africans. The United States tries to work through international institutions to stabilize the African continent and provide assistance, but the gay rights debate could create icy foreign relations with the United States and the developing world, who have more conservative social views than those emerging in the U.S. It is definitely an issue that extempers should take heed of when addressing American foreign policy in the region.