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Same-Sex Marriage
The Fight for Equality Gains Momentum
by Amanda Cherrin, Communications Intern
National Organization for Women

© 2003, NOW


Although the United States Supreme Court has declared marriage a fundamental right under the Constitution, same-sex couples still do not have the ability to marry in any U.S. state. The fact that gay and lesbian couples lack this right results in severe financial disadvantages and a denial of critical rights and benefits, in addition to emotional hardships. Recently, significant legal gains made in U.S. and Canadian courts have contributed to eradicating discrimination against gays and lesbians. These advancements, however, have been met with fierce backlash from right-wing leaders who are attempting to block the road to equality with legislation that would undo years of social progress.


Where Are We Today?

The 2000 census reported 594,391 same-sex couples living together in the U.S., and currently, none of them are eligible for civil marriage on the state or federal level. Thirty-seven states have passed legislation that prohibits the recognition of same-sex marriage, and the 1996 “Defense of Marriage Act” (DoMA) prevents same-sex couples from receiving the same federal rights and protections, like Social Security, that are bestowed upon opposite-sex, legally married couples. [Please see our article: DoMA]

To date, Vermont offers same-sex couples the most comparable option to marriage in the country. “Civil unions” grant couples the same state-level benefits and privileges as heterosexual married couples, but due to the DoMA restrictions, they cannot receive federal benefits, nor will most other states recognize their union. This creates a second-class, “just be happy — it could be worse” status for same sex-couples.

Both California and Hawaii have passed “domestic partnership” laws, which offer same-sex couples some of the benefits given to married people, but fall short of providing equal treatment. Current challenges to the system include two state court cases that are questioning the constitutionality of withholding civil marriage rights from same-sex couples. In Massachusetts, Gay & Lesbian Advocates & Defenders filed a suit on behalf of seven same-sex couples who were denied marriage certificates because of their sexual orientation. A New Jersey court recently heard Lambda Legal argue for the rights of seven same-sex couples who also wish to marry. Both courts are expected to return verdicts in the near future.

Internationally, the Canadian provinces of Ontario and British Columbia have recently legalized same-sex marriage. [See our article: B.C. & Ontario Legal Marriage] They join the Netherlands [Netherlands Legal Marriage] and Belgium [Belgium Legal Marriage] in granting same-sex couples the full spectrum of rights and benefits that accompany a marriage license.


Much at Stake

Same-sex couples across the country are denied more than 1,000 federal protections and rights. [Please see our article: U.S. Laws for Married] Most states deny committed lesbian and gay couples hundreds of additional benefits. These rights range from the ability to file joint tax returns to the crucial responsibility of making decisions on a partner’s behalf in a medical emergency.

The inability to marry has both emotional and financial consequences. Same-sex couples are not allowed to share Social Security, Medicare, Family and Medical Leave, health care, disability, military and other benefits. They cannot inherit 401(k)s and other property from their life partner without a will. According to Lambda Legal, same-sex couples can lose more than $10,000 per year upon retirement due to a lack of Social Security benefits that would be bestowed upon opposite-sex married couples in identical situations.

This discrimination also affects the children of same-sex couples. Lesbian and gay parents are unable to assume parenting rights and responsibilities when children are brought into a family through birth, adoption, surrogacy or other means. In most states, there is no law guaranteeing a non-custodial, biological or adoptive parent’s visitation rights or requiring child support from such a parent.


Opposition Hides Behind Religion

Once the Supreme Court announced its decision to strike down the country’s remaining anti-sodomy laws in the landmark Lawrence v. Texas case, the topic of same-sex marriage jumped into the spotlight. Following the ruling, right-wing extremists from Rev. Jerry Falwell to Pat Robertson spoke out against the Court’s decision and its implications for lesbian and gay rights.

President Bush joined the critics, commenting during a July 30 news conference, “I believe in the sanctity of marriage. I believe a marriage is between a man and a woman. And I think we ought to codify that one way or the other.”

In addition to the Bush administration’s assault on same-sex marriage, conservative members of the House of Representatives are currently pushing for a constitutional amendment that would define marriage as a “union of a man and a woman.” The resolution, introduced by Rep. Marilyn Musgrave, D-Colo., has many supporters, including Senate Majority Leader Bill Frist, R-Tenn.

The struggle for same-sex marriage rights demands that our government treat lesbian and gay couples the same as opposite-sex couples; it does not contend that churches must perform same-sex marriage ceremonies. That’s not stopping right-wing leaders, however, from lacing their condemnation of same-sex civil marriage with religious rhetoric.

“I very much feel that marriage is a sacrament, and that sacrament should extend, and can extend, to that legal entity of a union between what has traditionally in our Western values been defined as between a man and a woman,” Frist told Alan Murry on CNBC’s Capitol Report show. Despite the constitutional separation between church and state, conservative extremists have drawn the same-sex marriage battle lines along religious grounds.

It is up to lesbian and gay advocates to keep the issue clear. “Marriage is a legal issue, plain and simple. It’s not about personal religious beliefs — this is about what is fair and just,” said NOW Action Vice President Olga Vives. “We need to educate the people of this country — they need to know that the denial of same-sex marriage is discrimination. The civil rights movement of the 1960’s fought for interracial couples to be able to marry — and they won. We’re fighting for marriage rights again, this time for same-sex couples. And we, too, will win.”


© 2003, National Organization for Women
Reprinted with permission from the National NOW Times, Fall 2003


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