Volume 8 no. 5-6
Issues affecting the gay and lesbian community have become increasingly visible in public policy circles. In May, the Supreme Court ruled in Romer v. Evans et al. that a Colorado anti-gay constitutional amendment was prohibited by the U.S. Constitution. While the Supreme Court's decision was touted as a great victory for gay-rights activists, in many ways the Court's decision generated a back-lash against the gay and lesbian community. One repercussion of the Supreme Court's decision is the recent prominence of the issue of same-sex marriages before the United States Congress. Legal experts anticipate that Hawaii will be the first state to legitimize same-sex marriages. To try to ensure that other states are not forced by the Full Faith and Credit Clause of the U.S. Constitution to recognize such unions and to prevent same-sex partners from receiving certain federal benefits, legislation known as "The Defense of Marriage Act" has been introduced in Congress. The Act would define marriage in federal law as "a union between one man and one woman." The House recently passed that Act and companion legislation is pending before the Senate. President Clinton has stated that he would sign the legislation if it came to him without any changes, a move that has angered gay-rights advocates.
The MONITOR provides a review of the latest activity beginning with the Supreme Court's ruling in Romer v. Evans et al.
Giving gay-rights advocates their most sweeping legal victory in U.S. history, the Supreme Court on May 20, ruled 6-to-3 that an anti-gay amendment to Colorado's Constitution, known as Amendment 2, was prohibited by the U.S. Constitution. In delivering t he opinion of the Court, Justice Anthony M. Kennedy wrote, "We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else.... This Colorado cannot do. A State cannot so deem a c lass of persons a stranger to its laws." The opinion was, explicitly, grounded in the first Justice's Harlan's dissent in Plessey v. Ferguson, the 1896 decision in which the court gave its blessing to racial segregation.
In November, 1992, 53.4 percent of Colorado voters approved the anti-gay ballot initiative which became known as Amendment 2 from its placement on the ballot. The initiative amended the Colorado Constitution's Bill of Rights to read as follows:
No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation, Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of, or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.
Amendment 2 thus repealed existing ordinances and policies in Colorado that protected gay and lesbian persons from discrimination on the basis of sexual orientation or activity, and also prohibited the future passage of such anti-discrimination measures b y or within the state.
State Court Action in Colorado
Less than two weeks after the initiative passed, a legal team opposing Amendment 2, consisting of the ACLU of Colorado, the National ACLU Lesbian and Gay Rights Project, and the Lambda Legal Defense and Education Fund filed a complaint, Evans et al. v. R omer, in Denver District Court, claiming the amendment was unconstitutional. The plaintiffs in the case included nine Colorado residents, the cities of Boulder, Aspen and Denver and the Boulder Valley School District. The defendants were the official representatives of the State of Colorado, Gov. Roy Romer and Attorney General Gale Norton (Gov. Romer previously had denounced the initiative).
On January 15, 1993, the day Amendment 2 was to have gone into effect, District Court Judge Jeffrey Bayless granted an injunction against enforcement of the initiative until trial on its merits stating that Amendment 2 would likely be ruled unconstitution al on equal protection grounds as equal protection in the political process is a fundamental right. The Colorado Supreme Court subsequently upheld the injunction, 6-to-1. The State's appeal of the injunction to the U.S. Supreme Court was denied review.
A trial on the merits was held in October of 1993. District Court Judge Bayless ruled in December that there was no compelling state interest for such a law, and consequently, that the amendment was constitutional. The State appealed the ruling to the C olorado Supreme Court, which, after oral arguments, affirmed the lower court's decision, 6-to-1.
U.S. Supreme Court
The U.S. Supreme Court heard oral arguments on October 10, 1995 and handed down its 6-to-3 decision affirming the State Supreme Court's decision on May 20, 1996. While the Supreme Court affirmed the lower court's ruling, it did not adopt the Colorado Sup reme Court's application of a heightened scrutiny standard to determine that Amendment 2 was not narrowly tailored to serve a compelling state interest. Instead, the U.S. Supreme Court ruled that Amendment 2 was not rationally related to a legitimate government purpose and was facially discriminatory.
The opinion of the Court, written by Justice Kennedy, and joined by Justices Stevens, O'Connor, Souter, Ginsburg, and Breyer, rejected the State's principal argument that Amendment 2 puts gays and lesbians in the same position as all other persons by deny ing them special rights. Justice Kennedy went on to observe the "sweeping and comprehensive" changes in legal status effected by Amendment 2 that were noted by the State Supreme Court so that, "[h]omosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres." The opinion states that,
"...we cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are for bidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution or perhaps, on the State's view, by trying to p ass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civil life in a free society."
In a stinging dissent, Justice Antonin Scalia, joined by Chief Justice Rehnquist and Justice Thomas, noted his belief that Amendment 2 simply prohibited "special treatment of homosexuals, and nothing more." Referring to a 1986 Supreme Court ruling (Bower s v. Hardwick) in which the U.S. Supreme Court upheld a state's right to make homosexual conduct a crime, Justice Scalia wrote, "If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissib le for a State to enact other laws merely disfavoring homosexual conduct."
Stripped of its aspersions in the majority and its reasoning,the essence of Scalia's view of the case maybe found in his concluding paragraph:
"Today's opinion has no foundation in American constitutional law, and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them pref erential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Stri king it down is an act, not of judicial judgment, but of political will. I dissent."
Reactions
Gay-rights advocates were jubilant after the Court's decision. Elizabeth Birch, Executive Director of the Human Rights Campaign, the largest national lesbian and gay political organization in the nation, stated the Court's decision was "an outstanding mor al victory" that "merely ensures that Colorado -- and every other state -- cannot pass laws to deny gay and lesbian Americans equal access to the democratic process."
Supporters of Amendment 2, on the other hand, were dismayed by the decision. Will Perkins, Chairman of the Board of Colorado for Family Values, stated:
"Three years ago the citizens of Colorado voted to protect the liberties of those who hold traditional views of sexuality. They hated no one, but merely wanted to keep government out of the business of legislating private decisions and historic controvers ies. Today our nation's highest court ruled that citizens do not have the right to protect those freedoms. Those forces bent on forcing a deviant lifestyle down the throats of the American people have moved a long step forward in making government their pet bully."
Perkins added that, "the results of today's decision could so deeply impact our entire culture that there may actually be an outcry from the people for Congress to impeach some of these justices."
DEFENSE OF MARRIAGE ACT
Introduction
Following the Supreme Court's decision, some in and outside Congress moved to enact the Defense of Marriage Act, which would, for the first time in the nation's history, define marriage in federal law. Elizabeth Birch, Executive Director of the Human Rights Campaign pointed to the connection between the Supreme C ourt's ruling on Amendment 2 and the Defense of Marriage Act, stating:
"The religious political extremists have changed tactics. Instead of statewide anti-gay ballot initiatives like Amendment 2, they are pressing for bills in state legislatures and, most recently, in the U.S. Congress, that would outlaw same-sex marriage. What this new wave of hate demonstrates is that gay and lesbian Americans still have a long way to go toward winning equal rights."
The House overwhelmingly passed the Defense of Marriage Act on July 12th after a passionate debate and the bill is pending in the Senate where a bipartisan group of Senators has announced their intentions to link to the bill, as an amendment, a measure pr otecting gays and lesbians from public and private employment discrimination to the bill. President Clinton has suggested he would sign the legislation, according to a statement released by the White House, which explains that the President "has long op posed same-sex marriage."
Background
Currently no state in the union recognizes same-sex marriages. However, gay rights lawyers appear to be on the verge of winning the right of homosexuals to marry in Hawaii. Three gay couples have filed a lawsuit, Baehr v. Miike, contending that the state of Hawaii discriminated against them on the basis of sex when it denied them marriage licenses because they were not of the opposite sex. The Hawaiian Supreme Court ruled that the state may not deny same-sex couples marriage licenses without a "compelli ng" reason and the case has been remanded to the lower court for a trial which is to begin in September. If the lawyers are successful, other states would be compelled to recognize the legal marriage of another state through the Full Faith and Credit Cla use of the United States Constitution which provides:
"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the manner in which such Acts, Records, and Proceedings shall be proved, and th e Effect thereof."
The stated purpose of the Defense of Marriage Act is "to define and protect the institution of marriage." The legislation would define marriage as the "legal union between one man and one woman" and define "spouse" as "a person of the opposite sex who is a husband or a wife." The measure would allow states not to recognize a same-sex marriage licensed by another state by adding a section to the federal Full Faith and Credit statute (28 U.S.C. ***1738) that allows states not to recognize the public acts of another State if they relate to that State's recognition of a same-sex marriage. The bill would also deny partners in same-sex unions eligibility for a variety of federal benefits, such as survivor benefits under the federal veterans or social security programs or to file joint tax returns.
Opponents of the Defense of Marriage Act contend the legislation raises significant constitutional problems because the provision amending the Full Faith and Credit statute directly contradicts the first sentence in the Constitution's Article IV Sec 1. S upporters of the legislation, however, contend that this added provision is a constitutional "exercise of Congress' power" as permitted by the same section of the Constitution.
Professor Chai Feldblum of the Georgetown University Law Center notes that the first sentence says "every state is required to recognize the official public acts and proceedings of other States." She adds that "there is no way this second sentence could be read to mean: States have to recognize the official acts of other States, except when Congress passes a statute to say they don't have to. That would effectively allow any Congressional statute to amend the Full Faith and Credit clause of the Constitu tion -- without going through the bother of a constitutional amendment. That cannot be a correct reading of this sentence." (emphasis in original)
The correct interpretation of the second sentence, according to Professor Feldblum, is that "Congress may pass implementing legislation to carry out, for practical purposes, the logistics of the constitutional mandate. specifically, Congress may pass la ws to establish the manner is which the acts or proceedings of a State may be proved, and the specific effects in the States the recognition of such acts or proceedings will have as a practical matter." (emphasis in original).
House Action
The Defense of Marriage Act, H.R. 3396, was introduced on May 7th by Representative Bob Barr (R-GA) and was referred to the Constitution Subcommittee of the Judiciary Committee. A single hearing was held on the bill on May 15th. Testifying at the hearin g were various state legislators, academics, journalists, and civil rights advocates.
Terrence Tom, Hawaii State Representative, testified that the gay rights lawyers' strategy of using the Full Faith and Credit Clause to supersede the public policy of the other forty-nine states by forcing them to recognize Hawaii same-sex marriage licens es was undemocratic. He said:
"If inaction by the Congress runs the risk that a single judge in Hawaii may re-define the scope of legislation throughout the other forty-nine states, failure to act is a dereliction of the responsibilities you are invested with by the voters."
At both the subcommittee and the full committee mark-ups, there was tremendous debate as to how same-sex marriages pose a threat to "traditional marriages" between one man and one woman. Supporters of the bill argued that the legislation was needed to protect the institution of marriage from the "assault by the homosexual extremists." Rep. Barney Frank (D-MA), an opponent of the bill and an openly gay member of Congress, questioned supporters about whose marriage is threatened by a same-sex union, stating: "How does the fact that I love another man and live in a committed relationship with him threaten your marriage? Are your relationships with your spouses of such fragility that the fact that I have a committed, loving relationship with another man jeopardizes them?
Ironically, the Defense of Marriage Act was marked-up by the full Judiciary Committee the same day as the Church Arson Prevention Act of 1996, the legislation responding to the recent church burnings. During debate on the latter bill, several Democratic Committee members noted how government actions can help create an environment of hatred. Referring to the Defense of Marriage Act, Rep. Patricia Schroeder (D-CO) said, "If you think there's not hate in this country, you're going to love this bill."
House floor debate on the bill began on Thursday evening, July 11th and the bill was passed the following day by a vote of 342 to 67. Despite the lopsided outcome, the debate became rather intense at times as supporters of the bill quoted the Bible to su pport their notion that homosexuality is "perverse" and that marriage, "a God-given principle, is under attack." Rep. Tom Coburn (R-OK) was not afraid to admit the issue at hand was homosexuality, noting, "The real debate is about homosexuality and wheth er or not we sanction homosexuality in this country.... Homosexuality is immoral.... it is based on perversion and is based on lust."
Opponents of the measure, including Rep. Steve Gunderson (R-WI) the only openly gay Republican in Congress, spoke of fairness and election year politics. Rep. Gunderson stated, "Why are we so mean? Why must we attack one element of our society for some cheap political gain?" Added Representative John Lewis, a veteran of civil rights struggles, "I will not turn my back on another American. I will not oppress my fellow human being. I have fought too hard and too long against discrimination."
Two amendments were offered on the House floor by Representative Barney Frank (D-MA) that would have diluted the adverse effects of the bill; however, neither one passed. The first amendment sought to amend the portion of the bill which defines marriage for federal purposes as a legal union between a man and a woman. The second amendment would have voided the law in those instances where a state had approved same-sex marriage through such democratic means as state legislation or a ballot initiative.
Senate Action
The Defense of Marriage Act, S. 1740, was introduced by Senator Don Nickles (R-OK) on May 8th and was sent to the full Judiciary Committee for consideration. A hearing on the bill was held July 11th and Senator Edward Kennedy (D-MA) was successful in ext ending the scope of the hearing to include ENDA, the Employment Non-Discrimination Act which bars both private and public employers from firing or refusing to hire individuals solely on the basis of their sexual orientation. A bipartisan group of senators including, Sen. Kennedy, Sen. James Jeffords (R-VT), and Sen. Joseph I. Lieberman (D-CT), have announced they will introduce an amendment on the Senate floor to attach ENDA to the Defense of Marriage Act.
Among those who testified in support of the Defense of Marriage Act at the hearing were Sen. Don Nickles (R-OK), the chief sponsor of the bill, and Gary Bauer, President of Family Research Council. Mr. Bauer asserted that, "The decline of marriage has spawned America's most destructive social problems including sexually transmitted diseases, alcohol and drug abuse, educational failure, community decline, and ... a frightening epidemic of crime which has changed the way we live."
Mitzi Henderson, President of Parents, Family and Friends of Lesbians and Gays (P-FLAG) was among those who testified against the bill and suggested that forbidding same-sex unions would do nothing to strengthen the institution of marriage. Henderson noted:
"I appreciate honest attempts to strengthen the American family, but let's not cheapen the concerns of American families by pretending that passing a bill that does nothing will help a single family...My marriage does not need to be defended. My husband and I do not need your help to cherish one another, and to respect our vows of more than 40 years. What my family needs is a more tolerant America."
The Senate Judiciary Committee has yet to schedule a mark-up of the Defense of Marriage Act.
Public Opinion
A recent poll of 1,022 Americans conducted by the Mellman Group indicates that there is no clear consensus on the Defense of Marriage Act. Slightly more than one-third of those polled (37 percent) support the federal law and slightly less than one-third (29 percent) are opposed to the legislation. Roughly one-third (34 percent) remain undecided. Men are slightly more likely than women to support the legislation.
The polling data also demonstrates the lack of consensus when asked the question is framed, "Is the Defense of Marriage Act Necessary?" Thirty-nine percent of Americans think the legislation is unnecessary, 31 percent say its necessary and over 30 percent are not sure of the importance. Regardless of views as to the legislation's necessity, there is a consensus that this issue should not be a priority. Only 13 percent of those polled said that "passing this law should be an important priority" and only 17 percent said a candidate's vote against the Defense of Marriage Act would be "very convincing" reason to vote against that individual.
