After a clerk refused to give them marriage licenses, the couples hired a straight local attorney, Dan Foley, to file a lawsuit against the state. Lambda allowed Wolfson, the New York attorney who wanted to take the case, only to file a friend-of-the-court brief in support of the lawsuit.
When the court dismissed their claim, they appealed to the Hawaii Supreme Court. And on May 5, , the court ruled that the trial court was wrong to dismiss the claim: refusing to let same-sex couples marry was discriminatory, it said, and if the state wanted to discriminate, it would have to prove there was a good reason for doing so. The first time their audacious idea had not been laughed out of court. Wolfson and others believed a national triumph might be near at hand.
Bonauto, the Massachusetts lawyer, held a meeting with legal advocates from throughout New England to strategize how to move forward. Wolfson pestered his bosses to let him get more involved in the case, and they relented, allowing him to join Foley as co-counsel. A trial was held in In a result that astonished the world, they won: The judge, Kevin Chang, concluded that the state failed to prove that the public interest was served by denying marriage to same-sex couples.
But the court case provoked a national uproar. In September , Congress overwhelmingly passed the Defense of Marriage Act, a law defining marriage as between a man and woman for purposes of federal law, and President Bill Clinton signed it.
In November , 69 percent of Hawaii voters supported the amendment. The state supreme court, which had waited to rule on the case until the vote could occur, ruled that there was no longer an issue to decide. The brief insanity was over—gay marriage was illegal in Hawaii. Much as Americans like to imagine judges, particularly Supreme Court justices, as ahistorical applicators of a timeless code, the court is inevitably influenced by the world around it.
Wade came before America was ready for such a step, and that it helped unleash an anti-abortion backlash that continues today. Wolfson always believed that only the court could legalize gay marriage: Regardless of public opinion, he firmly believed the Constitution required it, and jurists would eventually have to recognize that fact. But seeing what happened in Hawaii, he realized that until the country was ready, the court was unlikely to consider gay marriage.
He realized, too, that while there were plenty of clever lawyers working for gay rights, the movement was politically weak.
Wolfson became determined to fill that role. Gay marriage supporters gather outside the Massachusetts statehouse in Boston in What would it mean for the country to be ready? Wolfson studied Loving v. Virginia , the decision on interracial marriage from At the time it was decided, public opinion was still staunchly opposed: 70 percent of Americans did not believe people of different races should marry.
But 34 states had already enacted anti-miscegenation laws. Wolfson decided some combination of these two measures—state-level wins and public support—would be necessary to get the Supreme Court to weigh in on gay marriage. For Baehr and Dancel, the backlash was painful. In the years they spent waiting for a ruling on their case, they had become activists, speaking at high schools and colleges, traveling the country to raise money.
They tried to send him a check every month. They watched their cause become a political wedge for both parties. Before they filed their lawsuit, some gay-rights advocates had advised against it, saying it would set the movement back. For a long time—two decades—it looked as if they were right. President Clinton had cited the Hawaii case in signing the law. You have to trust that things are going to work out, because if I gave up, what was the point?
That felt really bad. Meanwhile, the pressure of the spotlight took a toll on the couple's relationship. By , they had separated. Hodges , declaring that the Constitution required that same-sex couples must have equal access to the right to marry.
Right after that ruling came down, there was resistance in some states, where officials argued that the ruling was confined to the six states directly involved in the Obergefell decision. Gradually over the year, however, most lower courts have required states to obey the ruling.
The right is now generally recognized to exist nationwide. The decision, though, also set off a wide-ranging national debate that seeks to define a fundamental right of religious freedom, when many people object as a matter of faith to the newly declared constitutional right.
That debate has focused, in the main, on when individuals who work in government, or in businesses offering private services, may refuse to help implement the marriage right because of their religious belief that marriage should occur only between one man and one woman. After a year, the sorting out of this controversy still remains in its early stages, but there have been significant developments.
Of symbolic importance is the case of a Kentucky county clerk, Kim Davis, who gained national prominence for refusing — as a matter of faith — to put her name on marriage licenses for gay and lesbian couples. These constitutional changes were aimed at taking the issue out of the hands of judges. Amid widespread efforts in many states to prevent same-sex marriage, there was at least one notable victory for gay-rights advocates during this period.
In , the Vermont Supreme Court ruled that gay and lesbian couples are entitled to all of the rights and protections associated with marriage. However, the court left it up to the state legislature to determine how to grant these rights to same-sex couples. The following year, the Vermont legislature approved a bill granting gay and lesbian couples the right to form civil unions.
Massachusetts Department of Public Health , left the legislature no options, requiring it to pass a law granting full marriage rights to same-sex couples. In the days and weeks following the Massachusetts decision, some cities and localities — including San Francisco, CA; Portland, Ore. Television images of long lines of same-sex couples waiting for marriage licenses outside of government offices led some social conservatives and others to predict that same-sex marriage would soon be a reality in many parts of the country.
But these predictions proved premature. To begin with, all the marriage licenses issued to gay couples outside of Massachusetts were later nullified since none of the mayors and other officials involved had the authority to grant marriage licenses to same-sex couples.
More significantly, the Massachusetts decision led to another major backlash at the federal and state level. In the U. Congress, conservative lawmakers, with support from President Bush, attempted to pass an amendment to the U.
Constitution that would have banned same-sex marriage nationwide. But efforts to obtain the two-thirds majority needed in both houses to pass the amendment fell short in and again in Gay-marriage opponents had better luck at the state level, where voters in 13 states passed referenda in amending their constitutions to prohibit same-sex marriage.
Ten more states took the same step in and , bringing the total number of states with amendments prohibiting gay marriage to So far, voters in only one state — Arizona in — have rejected a constitutional ban on same-sex marriage. The same-sex marriage debate may have had an impact on the outcome of the presidential election. Ohio, which in was holding a referendum on a constitutional ban on gay marriage, was the state that ultimately gave President Bush the electoral votes he needed to beat Sen.
Does that mean Bowers has gotten more attention than it deserves? Why or why not? If the Constitution does protect privacy, shouldn't it protect--if anything--consensual sex in a private home, raising as it does both issues of decisional and spatial privacy?
The Court in Bowers seemed very concerned about the slippery slope. Could the Court protect homosexual sodomy between consenting adults without also protecting polygamy, adultery, incest, or bestiality? What about sodomy in a public restroom? How might lines be drawn? What is the state interest in preventing sodomy? How strong do you think it is? Does concern about sexually transmitted disease have a place in the Court's analysis?
Should homosexuals be treated as a suspect or quasi-suspect class for purposes of equal protection analysis? Is "Don't Ask, Don't Tell" constitutional? In Romer, is it reasonable to interpret Amendment 2 as leaving no recourse against a police department that adopted a policy of not investigating incidents of gay-bashing? Does the interest in protecting landlords with fundamentalist beliefs, who might find it religiously objectionable to rent to homosexuals, provide a rational basis for Amendment 2?
Does Lawrence suggest that laws prohibiting homosexual marriage are unconstitutional?
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