April is Same-Sex Marriage Month in the USA!!!

April 2009 turned out to be "same-sex marriage month" in the United States...
with the Iowa Supreme Court decision coming early in the month, then the Vermont legislature becoming the first in the nation effectively to enact a same-sex marriage bill into law over a governor’s veto, and then days later Governor Jodi Rell of Connecticut becoming the first state chief executive to sign a same-sex marriage bill into law.
In the waning days of the month, the New Hampshire Senate approved a same-sex marriage bill, a different version of which was approved earlier in the year by the House, although Governor John Lynch’s cooperation was not immediately assured, since he had previously stated his opposition to same-sex marriage. However, in the space of just a few weeks, two new states were added to the list of those offering same-sex marriage, another, Connecticut, had solidified its position through legislative codification of last fall’s state supreme court decision, and yet another, New Hampshire, seemed poised to act. And, there was widespread anticipation that the Maine legislature might fall into line early in May, as a joint Judiciary Committee vote late in April showed overwhelming support for a same-sex marriage bill after thousands had attended a public hearing in the state’s capitol a few days earlier.

Vermont was in certain respects a cliffhanger, and long overdue. At the end of 1999, the Vermont Supreme Court ruled in Baker v. State that the state’s failure to provide access to all the state-law rights and benefits of marriage to same-sex couples violated the state constitution’s equal benefits clause. The court was unanimous in finding the violation, but sharply divided over the remedy, with a majority concluding that the question how to extend those rights and benefits should be posed in the first instance to the legislature. The legislature responded by enacting the nation’s first Civil Union Act in 2000, establishing a separate (and, the truth be told, unequal) status for same-sex couples. The plaintiffs in Baker (local attorneys collaborating with Gay & Lesbian Advocates & Defenders) agreed to accept this instead of pressing the court to reconsider the remedy, and the Civil Union Act went into effect. In the meantime, neighboring Massachusetts achieved same-sex marriage through a decision by the Supreme Judicial Court in 2003, followed by the California Supreme Court in 2008, and Vermont was beginning to look behind the times.

By 2008 the pressure had been building for the legislature to "upgrade" the state’s law, and the Connecticut Supreme Court’s 2008 decision for same-sex marriage provided an additional spark. What California and Connecticut added were two articulate opinions explaining why domestic partnership (California) and civil unions (Connecticut) were not sufficient to create true equality. Further enforcement on this point came from New Jersey, where a state commission established to examine the operation of that state’s Civil Union Act issued a report finding that the law had not provided true equality for New Jersey same-sex couples. Legislative majorities for same-sex marriage emerged in Vermont, where both legislative houses had Democratic majorities, but the main question was whether they would be veto-proof majorities, since Governor Jim Douglas, a Republican, had repeatedly stated his opposition. After the measure had passed the House by a veto-proof majority, Douglas announced that he would veto it if it passed the Senate. It did pass the Senate, with slightly less than a veto-proof majority, and the veto quickly followed. But supporters of the measure, both inside and outside the legislature, worked hard on lobbying the Senate, and in the final voting the measure was enacted over the governor’s veto, with no votes to spare. That sounds close, of course, but in actuality it meant that a super-majority of each house had ultimately voted in support of same-sex marriage. And thus Vermont became the first state in the union to legislate same-sex marriage.

The bill, S.115, states the legislature’s purpose "to recognize legal equality in the civil marriage laws and to protect the religious freedom of clergy and religious societies authorized to solemnize civil marriages." It achieves these aims by adopting a new definition of marriage as "the legally recognized union of two people," but by providing that whenever the term "marriage" is used anywhere in the state’s laws, it shall mean "civil marriage." The law also supplements existing incest bans by providing, "No person shall marry his or her parent, grandparent, child, grandchild, sibling, sibling’s child, or parent’s sibling." The law makes clear that clergy are not required to perform marriages that would violate their religious beliefs, that their refusal to perform any particular marriage does not give rise to a cause of action, and that religiously-affiliated societies that are otherwise subject to the state’s public accommodations law are not required to provide goods or services for any marriage to which they object. Various provisions of the Civil Union Act are repealed, so that no more civil unions can be contracted when the bill goes into effect, but existing civil unions will continue to be recognized, although civil union partners may also marry without dissolving their civil union. The whole thing goes into effect on September 1. The statute does not expressly address the issue of recognition by Vermont of same-sex marriages, civil unions or domestic partnerships formed out-of-state, but by continuing to recognize the civil unions contracted within the state under its 2000 Civil Union Act, Vermont may have set up a situation where its courts will find that both out-of-state civil unions and out-of state same-sex marriages should be recognized in Vermont.

Just days later, the Connecticut legislature finished work on a measure intended to codify the state Supreme Court’s 2008 decision in Kerrigan, make suitable adjustments in existing marriage law, and address some of the policy questions raised by the advent of same-sex marriage in the state. Governor Rell signed S.B.899 into law on April 23.

The law enacts the following definition of marriage for Connecticut, as Sec. 46b-20(4) of the Connecticut General Statutes: "’Marriage’ means the legal union of two persons." The new specifications for eligibility to marry provides that somebody who is a party to a relationship that provides substantially the same rights, benefits and responsibilities as marriage is not eligible to marry anybody except the other party of that relationship. Thus, a couple that was civilly united in New Hampshire or New Jersey could marry in Connecticut. Interestingly, however, the new law also provides that such a relationship will be recognized as a marriage in Connecticut, without the need to go through a marriage ceremony. Additionally, and unusually, the statute gives permission for other states that have civil unions or domestic partnerships by not same-sex marriages to treat married same-sex couples from Connecticut as being in a civil union or domestic partnership, as the case may be. The utility of this provision is open to some question, since it seems unlikely that Connecticut would have any say in the matter of what other states do.

The Connecticut law takes essentially the same approach as the Vermont law in dealing with the religious issue, exempting clergy from having to perform same-sex marriages and exempting religious and religiously-controlled associations from having to "participate in a ceremony solemnizing a marriage in violation of the religious beliefs of that church or qualified church-controlled organization.". The legislature had rejected attempts by religious advocates to create a broader "conscience" exemption to the state’s public accommodations law in favor of any business owner with religious objections to same-sex marriages, so the exemption is restricted to a "church or church-controlled organization." Presumably the term "church" is being used generically to describe religious organizations regardless of denomination, but the statute does not make this clear.

Connecticut takes a somewhat different approach to the issue of its existing civil union law from Vermont. In Connecticut, civil union partners can apply for marriage licenses, but they don’t have to, because as of October 1, 2010, their civil union will be treated as a marriage, unless it has been legally dissolved or a dissolution proceeding has been commenced.

Connecticut and Vermont are the first states to have addressed legislatively the transition from a civil union regime to a same-sex marriage regime, so these bills are unique and unprecedented, and may provide a template for other civil union or domestic partnership states where the legislature seeks to provide full equality for same-sex couples by amending the marriage laws to allow for same-sex marriages.

The New Hampshire bill was still a work in progress as this is being written, because of differences between the versions approved by the House and the Senate. In both cases, approval was by relatively narrow votes, and the governor, John Lynch, has stated in the past that he thought the state’s Civil Union Act had sufficiently addressed the issue. A bill can become law in New Hampshire without the governor’s signature, but he can veto it, and it looks doubtful that the legislature would muster large enough majorities to overturn it, unless the Republicans were to throw their political convictions to the wind and decide that this would be a great way to embarrass the Democratic governor...

Read the original article at Leonard Link


Comments (0)Add Comment

Write comment
You must be logged in to post a comment. Please register if you do not have an account yet.