Reaffirming marriage: a presidential priority.

Publication: Harvard Journal of Law & Public Policy

Publication Date: 22-MAR-01

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COPYRIGHT 2001 Harvard Society for Law and Public Policy, Inc.

Marriage is always in the news. Lately, however, it seems to be a hotter topic than usual. Debates rage about the "marriage penalty" in the tax code and whether to reform divorce law. Local school boards ponder how to teach students about marriage. Governors have created marriage commissions, and scholars are giving the subject respectful attention.(1) The full title of a recent book by Linda Waite and Maggie Gallagher says it all: The Case For Marriage: Why Married People are Happier, Healthier, and Better Off Financially.(2)

Although marriage is primarily regulated by the states, it is hardly absent from federal law. Marriage has been the subject of a number of important decisions by the U.S. Supreme Court.(3) There are 1,049 federal statutes and many corresponding regulations relating to marriage, ranging from Social Security and taxes to education and immigration.(4) In 1996 Congress passed the Defense of Marriage Act, which addressed federal law and the Full Faith and Credit Clause.(5) By setting legislative, regulatory and funding priorities for his Administration, and taking advantage of the ever-present "bully pulpit," President Bush can certainly do much to promote marriage.(6)

Amid these positive developments and opportunities, however, there is a growing cloud on the horizon. Litigators and activist judges are attempting to redefine the meaning of marriage. Their effort is gathering steam, and led to skirmishes in the 2000 Presidential campaign. Both the vice-presidential debate(7) and the second presidential debate(8) included questions about "same-sex marriage" and "civil unions." Vice-President Gore also addressed the issue on MTV, strongly supporting equal treatment for what he called "civic unions."(9) In a follow-up to these exchanges, the Associated Press asked both candidates, "What federal legal rights, if any, should be extended to civic unions between gay partners?" In response, each issued an official statement.(10)

President Bush's Administration will be faced not only with opportunities to promote marriage, but also the need to reaffirm what marriage really is. The issue cannot be dodged. The only question is whether the next President will provide the leadership the American people need on this issue before it is decided by somebody else.

While many other issues related to marriage are extremely important, this Article will focus on the question of definition. In Part I we describe the campaign to redefine marriage through the courts using both the "front door" of same-sex "marriage" and the "back door" of "civil unions."(11) We also describe responses to that campaign on the state and federal level. In Part II we look at the consequences of redefining marriage for states, self-government, and marriage. In Part III we offer an agenda that the Bush Administration might undertake in order to reaffirm marriage. This multi-faceted agenda includes federal, federal-state, and international dimensions.

I. THE CAMPAIGN TO REDEFINE MARRIAGE

Groups of litigators and activists are attempting to redefine marriage through the courts.(12) In this way they hope to mandate the legalization of same-sex "marriage" or its equivalent without having to put the question squarely before the American people.(13) Difficult as it may be to believe, America is on the verge of legalizing same-sex "marriage" by way of a court-ordered redefinition of marriage analogous to Roe v. Wade.(14)

So far, there have been a number of attempts to remove this vital issue from the people and have it decided in the courts. In past decades these attempts were unsuccessful.(15) In the past decade the real "action" has been in Hawaii, Alaska, and Vermont.

A. The Front Lines: Hawaii, Alaska, and Vermont

The same-sex "marriage" debate will always be associated with Hawaii, because it was there that the effort to redefine marriage through the courts almost succeeded. In 1991, three same-sex couples filed a lawsuit challenging the constitutionality of Hawaii's marriage law, which recognized only marriage between a man and a woman. In 1993, the Hawaii Supreme Court held that under the Hawaii Constitution the state's marriage law "discriminated on the basis of sex" and was therefore subject to strict scrutiny, requiring the state to provide a compelling state interest in order to justify the law.(16) Applying this standard, a Hawaii trial court found the law unconstitutional in 1996. However, the trial court suspended its decision while the state appealed back to the Hawaii Supreme Court.(17) Meanwhile, the legislature passed an amendment to the state constitution protecting their power to restrict marriage to the union of a man and a woman.(18) In one of the biggest ballot battles of 1998, the citizens of Hawaii ratified the amendment by a margin of 69 to 31 percent.(19) In 1999, after delaying for a year, the Hawaii Supreme Court finally accepted the inevitable and dismissed the original case in light of the passage of the Marriage Amendment.(20)

In early 1998, while the Hawaii appeal was pending before the Hawaii Supreme Court, a trial judge in Alaska held that the Alaska Constitution created a fundamental right to "choose a life partner."(21) In response, the Alaska Legislature approved a state constitutional amendment defining marriage as the union of a man and a woman.(22) After various attempts to take the amendment off the ballot failed, the citizens of Alaska ratified it by a 68-32 margin on November 4, 1998, the same day as the Hawaii Marriage Amendment.(23) Ignoring the vote for almost a year, the trial judge finally dismissed the original case.(24)

Shortly after the Hawaii Legislature voted to put the Marriage Amendment on the general election ballot, groups seeking to redefine marriage filed a similar lawsuit in Vermont.(25) After the trial court dismissed the lawsuit, the plaintiffs appealed to the Vermont Supreme Court.(26) On December 21, 1999, the court decided that the Vermont Constitution's "Common Benefits Clause" required the state to offer all the benefits of marriage to same-sex couples, even though the actual status of marriage could still be reserved for opposite-sex couples.(27) The court did not, as the plaintiffs urged, strike down the marriage law, but instead ordered the Vermont Legislature to provide a way for same-sex couples to enjoy the benefits of marriage.(28)

In rapid succession, the Vermont House Judiciary Committee put forward a bill creating a new status of "civil unions" that conferred on same-sex couples all the benefits of marriage.(29) After two months of fractious debate, the legislation was passed by the Legislature.(30) Governor Howard Dean signed the bill the next day in a private ceremony.(31)

The law, which has no residency requirement, took effect on July 1, 2000. According to the Vermont Secretary of State's office, 1527 civil unions were registered between July 1 and December 31. Of these, 338 were from Vermont. The rest involved 1189 couples representing 46 other states.(32) Vermont is going national.

B. The Next Line of Defense: Congress and Other States

It became clear by 1995 that events in Hawaii could affect the entire nation. Congress and other States began to respond to the possibility that Hawaii would legalize same-sex "marriage."

In 1996, after a series of brief but fierce debates, the U.S. Congress enacted the Defense of Marriage Act (DOMA)(33) by an overwhelming vote, and President Clinton signed it into law.(34) This Act defines marriage, for purposes of federal law, as the union of a man and a woman and clarifies that no State is required under the Full Faith and Credit Clause(35) to recognize a same-sex "marriage" contracted elsewhere. The Act has already been the subject of numerous law review articles, and both its critics and defenders expect it to eventually arrive before the Supreme Court.(36)

In addition, many States have reaffirmed as a matter of public policy that marriage is the union of a man and a woman. One of the biggest battles took place in California, where Proposition 22 was approved on March 7, 2000, by a margin of 61 to 39 percent. Proposition 22 provides that "[o]nly marriage between a man and a woman is valid or recognized in California."(37) As of October 2000, similar laws have been enacted in thirty-three States.(38) On the day of the 2000 presidential election, two more states approved similar constitutional amendments.(39) Serious efforts are also underway in 2001 legislative sessions to pass similar legislation.(40)

C. The Dutch Factor

As if all of the above is not enough, another factor is about to enter the mix: Dutch same-sex "marriage." The Netherlands has been the center of alternative sexual movements for many years.(41) Not surprisingly, on April 1, 2001, the Netherlands will become the first country to "open up" marriage to same-sex couples.

The effort to legalize same-sex "marriage" in the Netherlands gathered momentum over the last decade. It included a non-discrimination act with a human rights commission, the acceptance of private cohabitation contracts, and then the passage of a full-pledged Registered Partnerships law in 1998, which gave both same-sex and opposite-sex couples the ability to register with the government and have all of the available to married couples except the right to adopt children.(42) The Lower Chamber of the Dutch Parliament recommended the full "opening up" of marriage to same-sex couples.(43) Legislation to accomplish this was introduced by the Government in 1998.(44)

On September 12, 2000, after several days of extended debate, the Second (or Lower) Chamber of the Dutch Parliament approved the "opening-up" bill, as well as a bill to allow for adoption by same-sex couples. The vote was a lopsided 133-109.(45) The First (or Upper) Chamber approved the bills on December 19, 2000 by a 49-26 vote.(46)

Under the new law, only one of the two "spouses" is required to be a permanent resident or citizen of the Netherlands.(47) Therefore an American citizen could go to the Netherlands and marry a Dutch citizen anytime on or after April 1, 2001, and then return to seek recognition. There are already reports of plans for mass same-sex weddings on April 1st. Sooner or later a couple will force the issue.

II. THE CONSEQUENCES OF REDEFINING MARRIAGE

There will be serious consequences if America legalizes same-sex "marriage" or civil unions. In the short run, we are likely to see enormous legal and political turmoil nationwide. As same-sex couples contract civil unions in Vermont (or perhaps eventually "marry" in another state), they will return home, demand recognition in their state, and sue if refused. Every major public official in the United States will have to take a position on this question.(48) In some states, there will be political turmoil, as in Vermont.(49) Other states may flatly resist. Others may debate without resolution. Still others may pay lip service but eventually surrender.

In the long run, both sides think these developments could lead to major changes in the institution of marriage. After all, if supporters of same-sex "marriage" or its equivalent don't expect any results from redefining marriage, why are they fighting so hard for it? The only difference is that one side thinks the results would be positive, while the other side does not.(50) Those who seek to reaffirm marriage note that previous radical social policy experiments have often had unprecedented, disastrous effects, especially on children.(51) We fear the same will happen here. But by the time this becomes clear, what have begun as mere policies may have hardened into invulnerable constitutional rights.

What sorts of consequences are we referring to? There are at least three: consequences at the state and federal levels, consequences for self-government, and consequences for the institution of marriage itself.

A. Consequences at the State and Federal Level

The new Vermont civil unions statute has become the testing ground for how the question of same-sex "marriage" will be addressed by the States and, ultimately, the federal government. No one yet knows all the implications of this new law, either for Vermont or for any other jurisdiction. But there are already a number of areas, easily identifiable, that give reason for deep concern. First we will examine consequences within Vermont, since it could serve as a model for other states. Second, we will consider the possible consequences of the...

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