Tuesday, 11 February 2014


3: 2006 - Civil Unions

I have arrived in the midst of fall - and election campaigns.  I swear I have seen some of the election material before - the music, the posters and the issues all have an uncanny similarity to everything happening back in Australia.  But by the same token, everything is slightly different.  For example - there are Green-Rainbow candidates - but they are only polling 2% of the anticipated vote - a situation that might change as a result of a strange growing reconciliation between them and ultra-conservative Christian groups.

At the national level, in the Senate, against the background of the war and the gradual return of the reservists, voters are considering the retention of the tried and true.  In Massachusetts, voters are being asked to consider whether Senator Edward Kennedy should serve them another session.  Already the 3rd longest member of the US Senate, the Republicans have tried to portray him and the Democrats as a spent force, a puppet of those who would impose unreasonable regulation on the nation’s financial services, permit greater immigration or complete a secret homosexual agenda.  But the liberal press of Massachusetts have lauded Kennedy as a long time critic of the war (he opposed it from the start – one of only 23 senators voting against the use-of-force resolutions), a force for liberal change to pension and immigration law (there are a lot of illegal long term residents in the US) and a joint proponent of reforms to health insurance for children.   A long term survivor, and a master of sensible compromise, Kennedy has proven himself a adaptable politician – even working directly with President Bush to secure the passage of the “No Child Left Behind Act”. 

The elections are also running at a state level, with the Governors up for election in the New England states (“gubernatorial elections”).  Election issues have ranged across the predictable from the high rate of state taxes (in the US the states raise separate income and other taxes) to the poor state of the public infrastructure (potholes), through to the standardisation of education testing in the state. 

One conspicuous absence in the barrage of election material at the state level is the lack of political capital being made over the passage of gay marriage (as opposed to civil union) legislation in Massachusetts.  The Boston Globe recently pointed out that no one has been turned out of office in Massachusetts for voting on the legislation.

The Massachusetts legislation is widely seen as the culmination of the civil rights campaign on this issue – indeed, since the passage of the legislation, other “gay lobby” issues in the state have lost some of their momentum, probably because of a feeling that, at least in that State, the reform program has run its course.

The campaign itself gained most of its recent momentum from the 1999 decision of the Vermont Supreme Court which required that State to pass legislation on civil unions. Vermont approved a civil unions law in 2000 - allowing same-sex couples to enjoy many of the same 'state' benefits of marriage enjoyed by other citizens.  In April 2003, Connecticut became the second state to adopt civil unions. As in Canberra, California, Hawaii, Maine and New Jersey voluntarily approved domestic partnership laws that provide limited marriage rights to same-sex couples.  In California, Republican Governor Schwarzenegger has vetoed the measure pending a state Supreme Court decision on the issue.  Such challenges are pending in California – and four other states: Connecticut, Iowa, Maryland and Oklahoma.  (The United States Supreme Court itself has been fairly mute on the issue, although in June 2000 it rejected a long time ban on same-sex sodomy in Texas.)

A 2003 decision of the Massachusetts Supreme Judicial Court followed the Vermont precedent.  Chief Justice Margaret Marshall said: “Barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution… Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support. It brings stability to our society... For those who choose to marry, and for their children, marriage provides an abundance of legal, financial and social benefits. In return, it imposes weighty legal, financial, and social obligations." 

In its 4-3 decision the court gave the Massachusetts legislature 180 days to come up with a solution.  While an unusual course to Australian eyes, such a power probably exists within our own courts and perhaps we should be ready for the day it happens here.  In Massachusetts, the court simply stayed its order for 180 days, effectively compelling the legislature to act during the stay.

Unlike Vermont, Massachusetts chose to go beyond civil union legislation, and recognize gay marriages directly.  The resulting legislation has now been in force in Massachusetts for 29 months - Massachusetts began marrying same-sex couples on 17 May 2004.  The Massachusetts approach provides a marriage rather than simply a state-recognised union.  Unlike marriage, civil unions and domestic partnerships have limited or no effect outside the state in which they occur (the position we find ourselves in the ACT with our domestic relationships legislation).   Further, civil unions and domestic partnerships do not provide any federal marriage benefits (there are some 1,138 laws and policies that give benefits to marriages - including Social Security, family medical leave, federal taxation and immigration policy).

Most recently, on October 25 the New Jersey Supreme Court ruled that the state constitution guarantees same-sex couples all the legal benefits of marriage.  The state legislature has until 22 April 2007 to come up with a way to give same-sex couples equal access to the protections of marriage.  That state now has to choose between the Vermont and Massachusetts model.

There is significant political difference on the issue.  44 states have “Defense of Marriage laws”, which define marriage as solely a heterosexual union. These laws are based on the 1996 federal Defense of Marriage Act, which bars federal recognition of same-sex marriages and purports to permit states to ignore gay marriages performed elsewhere. 

Even in the liberal New England states, including Massachusetts the issue remains contentious (the democrats favor gay marriage, the republicans favor civil union).  However, no practical issues have arisen from the legislation – none of the concerns about the harmful effects of such marriages on the parties or their children have arisen. 

And none of the gubernatorial candidates seem keen to raise this as a political issue - at least at the state level.


Timeline (from Stateline.org):
May 1993: Hawaii Supreme Court rules that the state must show a compelling reason to ban same-sex marriage and orders a lower court to hear a case seeking the right of same-sex couples to marry.
March 1995: Utah Gov. Mike Leavitt (R) signs into law the first state Defense of Marriage statute, which stipulated that Utah did not have to recognize out-of-state marriages that violated state public policy.
September 1996: President Bill Clinton signs into law the federal Defense of Marriage Act (DOMA), which upholds states' rights to ban same-sex marriages and refuse to recognize such marriages performed elsewhere. (39 states adopt DOMA statutes between 1995 and 2004.)
December 1996: Hawaii Circuit Court judge rules that denying same-sex couples the right to marry violates the state Constitution. The ruling is appealed to the state Supreme Court.
February 1998: Alaska Superior Court judge rules that same-sex couples have a constitutional right to marry, but stays the decision pending appeals to the state Supreme Court.
November 1998: Hawaii voters approve state constitutional amendment reserving the right to define marriage to the Legislature.
November 1998: Alaska voters approve constitutional amendment banning same-sex marriage.
September 1999: Alaska Supreme Court rules that same-sex couples cannot seek the right to marry under the state Constitution in light of the 1998 constitutional amendment banning same-sex marriage.
December 1999: Hawaii Supreme Court reversed the 1996 circuit court ruling on the grounds that the 1998 constitutional amendment nullified the court's power to define marriage.
December 1999: Vermont Supreme Court rules that the state Constitution guarantees same-sex couples the same rights to marriage as heterosexual couples. However, the court left it up to the Legislature to decide how to provide marriage rights and benefits to same-sex couples.
May 2000: Vermont Legislature passes law allowing same-sex couples to receive state-level marriage benefits by entering into civil unions.
Nov. 18, 2003: Massachusetts Supreme Judicial Court rules state Constitution guarantees equal marriage rights for same-sex couples.
Feb. 12, 2004: San Francisco Mayor Gavin Newsom authorizes city officials to issue marriage licenses to same-sex couples.
Feb. 20, 2004: Sandoval, N.M., county clerks issue licenses to 26 same-sex couples before courts intervene.
Feb. 24, 2004: President Bush announces support for federal constitutional amendment banning same-sex marriage.
Feb. 27, 2004: New Paltz, N.Y., Mayor Jason West begins officiating same-sex marriages.
March 3, 2004: Multnomah County (Portland), Ore., commissioners begin issuing marriage licenses to same-sex couples.
March 5, 2004: New York judge bars New Paltz mayor from performing same-sex marriages.
March 11, 2004: California Supreme Court orders halt to San Francisco same-sex marriages.
March 29, 2004: Massachusetts' Legislature votes to amend the state Constitution to ban same-sex marriage but allow civil unions. (Legislature must approve the measure again by 2006 before amendment can go to statewide vote.)
April 20, 2004: Oregon circuit court judge orders halt to same-sex marriages in Multnomah County, saying a state Supreme Court ruling is needed on the issue, but orders the state to recognize the 3,000 same-sex marriages already performed there.
May 17, 2004: Same-sex couples begin marrying in Massachusetts.
Aug. 3, 2004: Missouri voters approve constitutional amendment banning same-sex marriage.
Aug. 4, 2004: Washington Superior Court judge in King County rules the state's ban on same sex-marriage unconstitutional.
Aug. 12, 2004: California Supreme Court voids San Francisco same-sex marriage licenses.
Sept. 7, 2004: Washington Superior Court judge in Thurston County rules state's ban on same sex marriage unconstitutional. (Case combined with King County ruling in appeal to state Supreme Court.)
Sept. 18, 2004: Louisiana voters approve constitutional amendment banning same-sex marriage.
Nov. 2, 2004: Voters in 11 states (Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon and Utah) approve constitutional amendments banning same-sex marriage.
Dec. 7, 2004: New York judge in Albany rules that limiting marriage to unions of a man and a woman is constitutional.
Jan. 20, 2005:  Indiana Court of Appeals rules limiting marriage to unions of one man and one woman is constitutional.
Feb. 4, 2005: New York, N.Y., judge rules state law prohibiting same-sex marriage violates state Constitution, concluding the right to marry the person of one's choosing is both a privacy right and a liberty right.
Feb. 23, 2005:  New York state judge in Ithaca rules same-sex couples are not entitled to marriage licenses.
March 8, 2005: Washington Supreme Court heard oral arguments in an appeal of two lower-court rulings outlawing discrimination against gay couples who want to marry. (A decision by the high court is expected before the end of 2006.)
March 14, 2005: California Superior Court judge rules ban on same sex marriage is unconstitutional. (Case has been appealed to state Supreme Court.)
April 5, 2005: Kansas voters approve constitutional amendment banning same-sex marriage.
April 14, 2005: Oregon's Supreme Court nullifies nearly 3,000 marriage licenses issued to same-sex couples in violation of state law in 2004.
May 12, 2005: Federal judge in Lincoln, Neb., strikes down Nebraska's state constitutional amendment banning same-sex marriage.
June 17, 2005: Federal judge in Orange County, Calif., ruled that the federal Defense of Marriage Act does not violate the U.S. Constitution.
June 29, 2005: California Supreme Court let stand new law creating domestic partners' registry for same-sex couples.
Aug. 22, 2005: California Supreme Court issued first-of-its kind ruling recognizing the co-parenting rights of same-sex couples.
Sept. 6, 2005: California state Assembly approves Senate-passed bill to legalize same-sex marriage and sends it to Gov. Arnold Schwarzenegger.
Sept. 14, 2005: Massachusetts' Legislature defeats proposal at second constitutional convention to amend the state Constitution to ban same-sex marriage but allow civil unions.
Sept. 14, 2005: California Gov. Arnold Schwazenegger vetoes bill to legalize same-sex marriage.
Oct. 28, 2005: Alaska Supreme Court ruled that state and local governments must offer the same benefits to same-sex employees' partners that they do to spouses.
Nov. 3, 2005: Washington state Supreme Court recognized co-parenting rights of same-sex couples.
Nov. 4, 2005: A district court judge in Oregon rejected a lawsuit challenging Oregon's constitutional same-sex marriage ban.
Nov. 8, 2005: Texas voters approved constitutional amendment banning same-sex marriage.
Nov. 8, 2005: Maine voters rejected attempt to repeal a state law prohibiting discrimination based on sexual orientation.
March 30, 2006: Massachusetts Supreme Judicial Court upheld a 1913 state law banning out-of-state couples from marrying in Massachusetts if the marriage is illegal in their home state.
May 31, 2006: New York Court of Appeals heard oral arguments in a case filed by 44 same-sex couples seeking the right to marry.
June 6, 2006: Alabama voters approve constitutional amendment banning same-sex marriage.
July 6, 2006: New York Court of Appeals, the state's highest court, rules that the state Constitution does not guarantee same-sex couples equal access to the rights and privileges of marriage.
July 6, 2006: Georgia Supreme Court reinstates constitutional ban against same-sex marriage that had been thrown out by a lower court.
July 12, 2006: Connecticut judge rules that banning same-sex marriage doesn not violate same-sex couples' constitutional rights because the state's new civil union law provides similar protections.
July 14, 2006: The 8th U.S. Circuit Court of Appeals reinstates Nebraska's state constitutional same-sex marriage ban.
July 26, 2006: Washington state Supreme Court rules that the state Constitution does not guarantee same-sex couples equal access to the rights and privileges of marriage.
Oct. 25, 2006: New Jersey state Supreme Court rules that the state Constitution guarantees same-sex couples all the legal benefits of marriage, but stopped short of legalizing same-sex marriage.


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