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Gay Marriage: From Stonewall to Albany
Posted on Jun 27, 2011
By Larry Gross
Through the 1980s and into the 1990s the religious right wing of the Republican Party fought to repeal the gains of the GLBT movement, labeling them as “special rights” rather than basic civil rights. At the same time, the Democrats, always fearful of being accused of capitulating to “special interests” such as minorities and women, did as little as they could get away with, while still raising money from gay people. After all, the argument always went, the political alternative to the Democrats was worse.
In 1992 an amendment was passed in Colorado that outlawed local anti-discrimination ordinances protecting gay citizens. This was challenged in state courts and ultimately in the U.S. Supreme Court, where the Romer v. Evans decision was the first important victory for GLBT rights in the highest court. This was followed ultimately in 2003 by the landmark Lawrence v. Texas decision (written, like Romer v. Evans, by Justice Anthony Kennedy), which abolished all “sodomy laws” and reversed the odious 1986 Bowers v. Hardwick, which upheld laws criminalizing homosexual acts.
By the early 1990s, the stage was set for campaigns to open some of the most central precincts of society to openly gay people. The 1992 Republican National Convention had been seen by many as excessive in its hostility to gay people, and the election of Bill Clinton as president was seen as heralding a new era of social progress. The GLBT movement pressed its apparent advantage, demanding that gay men and gay women be allowed to serve openly in the military. But GLBT folk, like other progressive groups, were soon to learn how shallow President Clinton’s commitment was, and how weak his resolve in the face of opposition. Thus we entered into the nearly two decades of the farcical and destructive “don’t ask, don’t tell” policy.
The question of same-sex marriage was raised almost at the start of the post-Stonewall era, in 1970, when two Minnesota law students, Richard Baker and James McConnell, applied for a marriage license. They appealed the denial of the license and their appeal went all the way to the U.S. Supreme Court, which refused to hear the case. This case received little attention, and while the issue of marriage equality surfaced from time to time in the next two decades, it was never on the front burner of the movement or the public agenda. Things changed, however, in 1993, on the heels of the “gays in the military” fracas, when the Hawaii Supreme Court ruled that the legislature needed to show why same-sex marriage should not be permitted under the state constitution. This decision, presumptively approving same-sex marriage, set off a political and legal struggle. In 1998 a constitutional amendment outlawing same-sex marriage in Hawaii was passed by voters after a campaign heavily financed by the Mormon Church.
The Hawaii decision ignited a fire storm on the religious right, as the issue was ideally designed to alarm its constituents. In the next few years, state after state passed constitutional amendments and referendums outlawing same-sex marriage. Referendums against same-sex marriage proved to be a valuable political organizing tool, bringing out the conservative vote in election after election, as the technique spread across the country.
In 1996, at a time when no state permitted same-sex marriage, Republicans in Congress proposed the Defense of Marriage Act (DOMA). This act, passed that same year, enshrines opposition to same-sex marriage in federal law, prohibits the federal government from recognizing such marriages and, in effect, suspends the Constitution’s “full faith and credit” clause that would require states to recognize marriages enacted in other states. Although possibly intended to trap the Democrats in the 1996 elections, the bill passed by a large bipartisan majority and was signed by President Clinton, who made it clear that he did not support marriage equality.
George W. Bush’s presidential victory in 2000 did not put an end to GOP enthusiasm for proposing measures against same-sex marriage, especially as Republicans noted that a lack of political zeal on the religious right had contributed to Bush’s popular vote loss to Al Gore. In 2004, as part of an effort to arouse the party’s religious-right base, the Republican platform included a call for a constitutional amendment outlawing same-sex marriage. At the same time, similar amendments were on the ballot in 11 states (Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon and Utah), and all passed.
However, there was progress on the marriage equality front, notably the enactment of same-sex marriage in Massachusetts in 2004, followed by Connecticut, Iowa, New Hampshire, Vermont and Washington, D.C. Same-sex marriage was enacted in California in June 2008 but repealed by Proposition 8 that November. A similar pattern occurred in Maine in 2009.
On the legal front, a challenge to California’s Proposition 8 was successful in federal court and the case was expected to go to the Supreme Court, but its progress has been stalled because neither the governor nor the attorney general is willing to defend Prop. 8 in the courts.
In 1996, then Illinois state Sen. Barack Obama answered a question from a Chicago gay paper, writing that “I favor legalizing same-sex marriages, and would fight efforts to prohibit such marriages.” Twelve years later, however, presidential candidate Obama, speaking at conservative evangelist Rick Warren’s Southern California church, said, “I believe that marriage is the union between a man and a woman. For me as a Christian, it is a sacred union. You know, God is in the mix.”
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