By Matthew Romano, Contributing Writer
The legalization of same-sex marriage is heading for the United States Supreme Court and will have an impact on the November Congressional elections. When the Massachusetts State Supreme Court recognized the legality of same-sex marriage on Nov. 18, 2003, same-sex advocates have focused their attention to seek justice through the courts, rather than the legislature. By 2010, Iowa, Connecticut and California state supreme courts had legalized same-sex marriage.
Appeals in the California case, along with a recent decision in Massachusetts to award federal benefits to same-sex married couples, are moving the issues of legalizing same-sex marriage and annulling the DOMA (Defense of Marriage Act) to the nation’s highest court. The arguments used in Massachusetts and Iowa, which brought success in Connecticut and California, will undoubtedly be used in Washington and for that reason warrant examination.
There are court documents available for each of these cases, which permit an analysis of the arguments presented by both sides of the issue. Among the principal issues contested were equality, the traditional view of marriage, morality concerns, procreation as a rationale for heterosexual marriage, stability of same-sex marriage and child rearing. Both courts agreed that their constitutions guaranteed equality for all before the law, and that the state did not have the right to prevent a person from choosing a partner for a civil marriage.
On July 18, 2010, the same-sex marriage issue again came to the forefront in Massachusetts in the cases of Gill v. Office of Personnel Management and Massachusetts v. United States Department of Health and Human Services. Judge Joseph Tauro of the District Court of Massachusetts issued decisions that the part of the federal Defense of Marriage Act that defined marriage “as a legal union exclusively between one man and one woman,” remained unconstitutional. The importance of this decision is that it would make federal rights and benefits available to legally married same-sex couples.
This is the first time the Defense of Marriage Act has been revoked and will only affect residents within Massachusetts. The decisions were automatically stayed for two weeks by federal court rules and are likely to be stayed further if the Department of Justice appeals go to the US Supreme Court. On Aug.18th, Tauro entered his final judgment and granted a stay for the duration of the appeals process. The Department of Justice has 60 days to decide whether to appeal. The plaintiffs, Gay & Lesbian Advocates & Defenders (GLAD), did not oppose the stay, explaining, “the chance to argue in front of a higher court with a broader reach…[and] an opportunity to address the harms DOMA Section 3 causes to already married couples across the country.” An attorney for the plaintiffs has estimated that arguments on appeal will take place approximately a year after the expected appeal is filed.
Meanwhile in California, on Aug. 4, 2010, California’s United States District Judge Vaughn Walker ruled that the state’s ban on same-sex marriage was unconstitutional. However, anticipating another appeal, Walker stayed his decision permitting the case to continue to the United States Supreme Court. On Aug. 16th, the United States Court of Appeals for the Ninth Circuit issued an emergency stay in Perry v. Schwarzenegger without explanation. Same-sex marriages had been set to resume Aug. 18 under Judge Vaughn’s ruling. However, the court scheduled expedited arguments for the week of Dec. 6.
These recent developments have brought the issue of same-sex marriage once again onto the national stage. It will be of concern for many voters in November, and certainly the country if the United States Supreme Court agrees to hear the cases.
