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The Same-Sex Future

Just four years ago, political pundits were blaming gay rights activists and the Massachusetts Supreme Court for costing Democrats the 2004 presidential election. In 2003, the Massachusetts court had declared, in Goodridge v. Department of Public Health, that denying marriage to same-sex couples violated that state’s constitution, marking the first time a state supreme court recognized the right of same-sex couples to marry.1 The decision touched off a widespread backlash; in 2004, eleven states passed referendums amending their constitutions to outlaw same-sex marriage. In 2006, another seven states followed suit. Nor was this a short-term phenomenon. During the last decade, forty-one states have passed statutes banning recognition of same-sex marriages, and twenty-six have amended their constitutions to that effect.

Yet in the last eight months, the tide appears to have dramatically turned. In October 2008, the Connecticut Supreme Court declared that denying marriage licenses to same-sex couples was unconstitutional discrimination on the basis of sexual orientation, even though Connecticut law already granted same-sex couples all the legal benefits and rights of marriage under the label of “civil unions.”2 In April 2009, the Iowa Supreme Court unanimously ruled that Iowa’s state ban on same-sex marriage denied equal protection of the law to gays and lesbians.3 The same month, the Vermont legislature enacted a law to make same-sex marriages legal, overriding the governor’s veto. Maine enacted a same-sex marriage law on May 6, 2009. On June 3, New Hampshire followed suit. In New Jersey, the Supreme Court has required the state to extend to same-sex couples all the benefits and rights enjoyed by married couples, and the legislature is considering extending marriage itself to such couples.4 And the New York State Assembly has passed a bill to make marriage available to same-sex couples. The bill has the support of Governor David Paterson, though its chances of passage in the Senate remain uncertain.

A similar pattern is evident in Scandinavia and other parts of Europe. In 1989, Denmark became the first country in the world to grant official recognition to gay and lesbian couples as domestic partners. In 2001, the Netherlands became the first country to extend marriage to same-sex couples. Today, same-sex couples can be married in the Netherlands, Belgium, Spain, Norway, and Sweden, and can register their partnerships and obtain many of the benefits granted to married couples in the Czech Republic, Denmark, Finland, France, Germany, Hungary, Iceland, Luxembourg, Slovenia, Switzerland, and the United Kingdom.

Despite the dramatic recent progress in the United States, however, there remains substantial and heated public opposition. When the California Supreme Court declared in May 2008 that the state’s constitution required recognition of same-sex marriages, the voters promptly amended the state’s constitution via referendum to ban same-sex marriage. On May 26, 2009, the California Supreme Court upheld that amendment as a legitimate exercise of the people’s referendum power, but preserved the 18,000 gay marriages that had been entered into during the interim. (Gay marriage proponents say that they hope to repeal the prohibition by referendum in the next election.) In Maine, opponents of same-sex marriage have vowed that they will seek to overturn the actions of their state representatives by popular referendum. Polls regularly report that a majority of the country is committed to the view that marriage should be limited to the union of a man and a woman, though support for same-sex marriage has increased in recent years. Perhaps reflecting the polls, both Barack Obama and Hillary Clinton opposed gay marriage in the 2008 election (though each supported civil unions).


What explains the apparent trend toward legal recognition of same-sex marriage or civil unions? And how should we understand the sharp discrepancy between the law and the politics of same-sex marriage? Not so long ago, there was no discrepancy. As a legal and political matter, same-sex marriage was an oxymoron, or as some opponents have put it, a “moral impossibility.” Hostility to the concept was widespread and blatant. In 1971, when Michael Wetherbee of the Minnesota ACLU argued that a gay couple had the right to marry under that state’s constitution, one judge on the Minnesota Supreme Court actually turned his chair around and refused to face Wetherbee as he delivered his argument. Not a single judge asked a question. The court’s unanimous decision denying the claim cited the book of Genesis to support its conclusion that marriage is properly limited to the union of a man and a woman.

A decade later, a federal judge ruled that a same-sex couple granted a license to marry by a county clerk in Boulder, Colorado, could not seek immigration benefits accorded to spouses. He reasoned that the definition of marriage had its origins in canon law, and “canon law in both Judaism and Christianity could not possibly sanction any marriage between persons of the same sex because of the vehement condemnation in the scriptures of both religions of all homosexual relationships.” When a circuit court in Hawaii declared a state ban on same-sex marriage unconstitutional in 1996, the voters of Hawaii responded by amending their constitution to overturn the ruling. The same year, the United States Congress passed the Defense of Marriage Act, designed to ensure that same-sex marriages recognized by individual states would not be entitled to any federal marriage benefits, and could be disregarded by other states.

In 1999, however, the Vermont Supreme Court ruled that the state’s refusal to grant the benefits associated with marriage to same-sex couples violated the clause of its state constitution that prohibits discrimination in the allocation of state benefits. The court left the precise form of remedy to the Vermont legislature, which responded with a compromise of sorts—it reserved marriage for opposite-sex couples, but created a new category, “civil union,” that gave same-sex couples the same rights and benefits that married couples enjoyed.

Gay rights advocates have recorded an impressive string of court victories since then in New Jersey, Massa-chusetts, California, Connecticut, and Iowa. These decisions break important new ground, but what is most striking about them is how weak the arguments against gay marriage are; so much so that it is difficult to see how courts could ever have ruled otherwise. Three arguments predominate: (1) the state is responsible for preserving the traditional conception of marriage; (2) limiting marriage to heterosexual couples furthers the state’s interests in promoting procreation and/or healthy childrearing; and (3) the state has a legitimate interest in refusing to condone homosexual behavior that it deems immoral.

The first argument, based on preserving tradition, is circular: it seeks to justify the limitation of marriage to unions between a man and a woman on the ground that marriage always has been limited to unions between a man and a woman. As Judge Judith Kaye of the New York Court of Appeals has written, “The justification of ‘tradition’ does not explain the classi- fication; it merely repeats it.” In its gay marriage decision, the Connecticut Supreme Court explained that courts must look behind tradition to “determine whether the reasons underlying the tradition are sufficient.” Tradition itself is not a justification for discrimination. After all, women were traditionally excluded from jury service and many professions, and blacks were traditionally denied the vote and relegated to segregation.

The fact that the tradition of marriage has been shaped by religious doctrine does not strengthen the objection. In fact, religious views on this question, like on so many others, are deeply divided. Some religions hold that marriage must be limited to the union of a man and a woman. But other religions, such as Buddhism, Unitarianism, and Reform Judaism, hold just as deeply that individuals should be free to marry those of their own sex. Under our Constitution, the state has no legitimate interest in endorsing one religious view over the other.5

A variant of the tradition argument maintains that the state has a legitimate interest in preserving the institution of marriage. But how exactly would extending the right to marry to same-sex couples undermine marriage? It would certainly change the institution, in the sense of including couples that were traditionally excluded. But the institution of marriage has already changed dramatically over the years. As Andrew Sullivan has argued:

If marriage were the same today as it has been for 2,000 years, it would be possible to marry a twelve-year-old you had never met, to own a wife as property and dispose of her at will, or to imprison a person who married someone of a different race. And it would be impossible to get a divorce.6

Certainly there is reason to be concerned about the state of marriage today. Marriage rates are down, and the numbers of single-parent households and out-of-wedlock births are up. But as Yale law professor William Eskridge and Darren Spedale argue in Gay Marriage: For Better or for Worse?, this is more likely attributable to changes demanded by heterosexual couples than to any threat posed by same-sex marriages. The diminishing importance of marriage may well be connected to the fact that it is both legal and socially acceptable to live together outside of marriage, to have sex and bear and raise children outside of marriage, and to end a marriage through no-fault divorce.

But there is no reason to believe that granting marriage to same-sex couples who commit themselves to long-term relationships has in any way caused, or will do anything to accelerate, these trends. As Eskridge and Spedale remark, opposing same-sex marriage on this ground “would be like France’s maintaining a Maginot Line against Luxembourg while the Nazis sip champagne in Paris.”

Indeed, if one were truly committed to preserving the institution of marriage, it would make more sense to include same-sex couples who seek to become part of the institution. Opposing same-sex marriage is likely to lead to the proliferation of alternatives, such as civil unions and domestic partnerships, and those “marriage-lite” alternatives might then prove attractive to heterosexual couples, further reducing the centrality of marriage.


When states are pressed to articulate the reasons underlying their interest in preserving “traditional” marriage, they most often claim that they seek to promote procreation and/or the welfare of children. Unlike preserving a discriminatory tradition for its own sake, these are unquestionably legitimate interests. The problem is that they seem wholly unrelated to a law that allows virtually any opposite-sex couple and no same-sex couple to marry.

As to procreation, no state limits marriage to couples who intend to have children, or denies marriage to couples who are infertile. Moreover, same-sex couples can and increasingly do have and raise children, through such means as in vitro fertilization, sperm donors, surrogate mothers, and adoption. Census data suggest that nearly 40 percent of same-sex couples were raising children in 2000. There is no reliable evidence that children of same-sex couples are worse off than children of opposite-sex couples. Indeed, many states that bar same-sex marriage permit same-sex couples to adopt and to take in foster children. Thus, denying the benefits of marriage to same-sex couples is not likely to advance procreation or children’s well-being in any rational way.

  1. 1

    Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003).

  2. 2

    Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. 2008).

  3. 3

    Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009).

  4. 4

    Lewis v. Harris, 908 A.2d 196 (N.J. 2006).

  5. 5

    Indeed, Ronald Dworkin has argued that because marriage, like religion, is an institution shaped by history but continually subject to reshaping by those who take part in it, we should be as intolerant of state laws freez- ing the meaning of marriage as we would be of state laws freezing the meaning of religion. See Ronald Dworkin, Is Democracy Possible Here? (Princeton University Press, 2006), pp. 87–89.

  6. 6

    Andrew Sullivan, “State of the Union,” The New Republic, May 8, 2000.

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