David Randolph Smith

Gay Marriage: A Misguided Call for a Constitutional Amendment
and the Case for Civil Unions

  • 4/4/05: Gay Couples File Suit After Michigan Denies Benefits
  • 3/16.05: Iowa Passes Proposal to Forbid Same-Sex Marriage.
  • 3/14/05: Calif. Judge Backs Same-Sex Marriage. Ban Ruled Unconstitutional; Appeal Likely
  • 3/6/05: Connecticut Ponders Civil Union Bill. The Los Angeles Times reports that lawmakers In Connecticut will soon take up a bill legalizing civil unions for same-sex couples. The measure would makeConnecticut the first state to sanction gay and lesbian unions through legislative action rather than court order.If enacted, it would extend all the rights and benefits of marriage to same-sex couples, except for the right to obtain a marriage license. The bill passed a key hurdle last month when it was approved,25-13, by the Legislature's Joint Judiciary Committee.
  • 3/2/05: According to the National Gay and Lesbian Task Force, 11 states passed anti-gay marriage amendments in November, and gay marriage opponents have taken steps to do the same in 17 other states. Rep. Tommie Brown, D-Chattanooga, one of the few dissenters on the 29-member Tennessee House Finance Committee, said the legislation against gays is bad public policy.'I want the record to show that this 70-year-old African-American woman cannot vote for something that will restrict the rights of anyone,'' she said." Gay Nuptials Amendment Advances (Tennessean).
  • 2/18/05: Law Prohibiting Gay Marriage Does Not Violate State Constitution (Indiana). Morrison v. Sadler (Lawyers Weekly USA No. 9930003) Indiana Court of Appeals No. 49A02-0305-CV-447. Jan. 20, 2005.
  • 2/13/05: Newsom Calls for Support of Gay Marriage. Marking the anniversary of his decision to sanction same-sex marriages, Mayor Gavin Newsom on Saturday urged gay couples to back politicians who support gay marriage, saying it is time "to hold our elected officials accountable."
  • 2/13/05: Massachusetts AG Supports Gay Marriage Ruling. One day after the Massachusetts Supreme Judicial Court announced it would hear arguments challenging its decision to legalize same-sex marriage, Massachusetts Attorney General Thomas F. Reilly told reporters Friday that he now supports the ruling. He had previously opposed the unions, and initially spoke out against the court's November 2003 ruling.
  • 2/2/05: New York judge strikes down same-sex marriage ban. New York State Supreme Court Justice Doris Ling-Cohan ruled that New York's law banning same-sex marriages violates the state constitution. If upheld on appeal, the decision would allow same-sex couples in the state to wed. Justice Ling-Cohan found in favor of five same-sex couples who were denied marriages licenses last year.

Interactive Map and State by State Comparison.

Analysis: When the United States Supreme Court struck down a Texas statute outlawing homosexual sodomy in Lawrence v. Texas, 123 S.Ct. 2472 (June 26, 2003), Tennessee Senator Bill Frist called for a constitutional amendment banning gay marriage. When the Massachusetts Supreme Court held in Goodridge v. Department of Public Health, 798 N.E.2d 941, Mass.,2003.(Nov. 18, 2003) that limiting the protections, benefits and obligations of civil marriage to individuals of opposite sexes lacked a rational basis and violated state constitutional equal protection principles, Senator Frist again called for a constitutional amendment banning "gay marriage." At a "Republican dinner" in Williamson County, Tennessee on Feb. 19, 2004, Senator Frist again called for a constitutional amendment banning gay marriage. Tennesseean, (2/20/04), p. 10A ("Frist Wants Constitutional Amendment to Ban Gay Marriages").

Then, on February 24, 2004 President Bush called for a Constitutional Amendment banning gay marriage but left open to states the right to sanction "civil unions."

Respectfully, a consitutional amendment outlawing "gay marriage" is a misguided polarizing effort to divide our country and citizens on religious and moral grounds and misses a very moderate and sensible solution: civil unions that provide same-sex partners with rights and legal interests of married couples.

Currently 37 states have laws that are "Defense of Marriage Acts." The constituitonality of these laws is uncertain given the Massachusetts Supreme Court's recent opinion that even "civil unions" that have all the rights and benefits of marriage relegate same-sex couples to "second class citizens" in violation of the Massachusetts state constitution. In re Opinions of the Justices to the Senate, 440 Mass. 1201, 802 N.E.2d 565, Mass., Feb 03, 2004, By contrast, the State of Alaska (Bush 59%; Gore 28%) enacted a constitutional amendment to the Alaska Constitution in 1999 that "To be valid or recognized in this State, a marriage may exist only between one man and one woman." AK CONST Art. 1, § 25. Congress has also passed, at the federal level, the Defense of Marriage Act, 1 U.S.C. § 7 (2000) defining "marriage" as "only a legal union between one man and one woman as husband and wife," and "spouse" as "a person of the opposite sex who is a husband or a wife". The specific language of this law is as follows:

  • " In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife."

The effect of this federal law is largely aspirational because by far and away most laws affecting marriage and families are state laws. About a month before the U.S. Supreme Court's decision in Lawrence, a constitutional amendment was proposed in the House of Representatives providing that "[m]arriage in the United States shall consist only of the union of a man and a woman." H.R.J. Res. 56, 108th Cong. (2003). This proposed amendment would amend the U.S. Constitution to state:

  • SECTION 1. Marriage in the United States shall consist only of the union of a man and a woman . Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups

A little more than a month after the Lawrence v. Texas decision, in response to "social conservatives" who were "seething" over Lawrence, President Bush stated that he was proposing official action, which might include a constitutional amendment, that would define marriage as a union between a man and a woman. Neil A. Lewis, Bush Backs Bid To Block Gays From Marrying, N.Y. Times, July 31, 2003, at A1.He has now done so.

Tenneessee's statutes contain hundreds of citations to "marriage" and, as personal injury lawyers are well aware, status as a spouse carries important legal rights including: the right to wrongful death damages as a surviving spouse; rights to inheritance as the immediate nexi-of kin; right to determine method of final disposition by burial or cremation; loss of consortium benefits; evidentintiary privileges; and protections against spousal abuse. The proposed amendment to the Constitution advocated by Rep. Musgarve (and endorsed by Bush) would prohibit any constitutional protections to same-sex couples relating to the "legal incidents of marriage." Most Americans, however, favor recognizing "the legal incidents of martriage" for same-sex couples as a "civil union." The moral or political overtones of "gay marriage" cloud the moderate view that same sex couples should have the same bundle of rights that married couples enjoy. The point was rather eloquently made by Vice-President Dick Cheney in his Oct. 2000 VP debate with Joe Lieberman:

  • "[P]eople should be free to enter into any kind of relationship they want to enter into. It's really no one else's business in terms of trying to regulate or prohibit behavior in that regard...The next step then, of course, is the question you ask of whether or not there ought to be some kind of official sanction, if you will, of the relationship, or if these relationships should be treated the same as a conventional marriage is. That's a tougher problem. That's not a slam dunk. I think the fact of the matter is that matter is regulated by the states. I think different states are likely to come to different conclusions, and that's appropriate. I don't think there should necessarily be a federal policy in this area. I try to be open minded about it as much as I can and tolerant of those relationships. And like Joe, I also wrestling with the extent to which there ought to be legal sanction of those relationships. I think we ought to do everything we can to tolerate and accommodate whatever kind of relationships people want to enter into."

What the law should do is recognize civil unions that carefully define what rights same-sex couples may enjoy. For example, the Eleventh Circuit has held that Florida may prevent same-sex couples from adoption, declining to extend the sexual privacy rationale to gay adoption. Lofton v. Secretary of Dept. of Children and Family Services, 2004 WL 161275, 17 Fla. L. Weekly Fed. C 201, 11th Cir.(Fla.), Jan 28, 2004. Cokie Roberts and Steven Roberts wrote an excellent op-ed article on just this issue. Escaping Extreme Views, Civil Unions Make Sense. The "gay marriage" label and the effort to Constitutionalize prohibitions aganist equal protection and due process for homosexuals obfuscates the real issue which is that discrimination against same-sex couples should not exist with respect to laws relating to inheritance, death, health, taxes, adoption and crimes.By invoking the "gay marriage" nomenclature and calling for a constitutional amendment for political purposes, Senator Frist (and President Bush) miss the issue and divide us further.