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Vol. 7, No. 2




The Emergence of Same-Sex Marriage

By Charles P. Kindregan, Jr.

Throughout the late twentieth century, a number of lawsuits attempting to secure the right of same-gendered persons to marry were met with quick rejection by courts in the United States. However, the change in rejectionist attitudes toward same-sex marriage is (and continues to be) remarkable as we near the end of the first decade of the twenty-first century. While there were intimations of this late in the last century, through court decisions in Hawaii and Vermont, it is only more recently that the idea of a full right of same-gendered persons to marry has found acceptance in a number of American courts and legislatures. In the sense that Americans have been increasingly accepting of principles of true equality in our civil life, this development should not be too surprising. But for many, this is a revolutionary development that has created great debate.

A basic premise of the historical development underlying the same-gender marriage movement is that for many, marriage is a religious institution, but from a legal viewpoint, marriage is a state-created civil institution subject to changing social needs. I have noted in previous writings that marriage evolved in part from religious concepts, but over centuries, the law defined so many benefits attributed to married persons that it took on a civil cast. In response to this new view of marriage came demands for equal access by those who were for centuries excluded from the right to marry. See Bonauto, “Ending Marriage Discrimination,” 40 Suff. U. L. Rev. (2007).

Federal law and the laws of every state confer hundreds of specific benefits that flow from marriage; examples include the economic protections of domestic relations law, tax benefits, land titles, descent and distribution of property, family leave benefits, protection of marital communications, homestead rights, workers’ compensation and personal injury claims, and numerous other benefits. Clearly, modern marriage is a civil institution (notwithstanding that for many it continues to have private religious meaning), for which principles of equality require that its civil benefits be nondiscriminatory.

In 2003, Massachusetts became the first state by judicial decision to recognize a state constitutional right of same-gendered persons to marry. Goodridge v. Dep’t of Public Health, 798 N.E.2d 941 (Mass. 2003). The governor of the state responded by complaining that the court had overturned “3000 years of recorded history.” This statement was premised on the proposition that heterosexual marriage is forever fixed in history and time. In reality, my research and that of others has demonstrated that marriage has assumed various forms throughout history; see Kindregan, “Same-Sex Marriage: The Cultural Wars and the Lessons of Legal History,” 38 Fam. L. Q. 427 (2004).

Family law practitioners are familiar with various changes that have affected our understanding of family life in the not very distant past, including recognition of nonmarital cohabitation contracts, equitable property division, assisted reproduction, abortion, no-fault divorce, covenant marriage, civil unions, domestic partnerships, etc. These significant developments show that historically family law is in a state of constant flux to meet the demands of modern life.

The argument that the law of marriage and the family is immutable has played a significant role in the debate over same-sex marriage. However, the history of modern family law suggests that the argument is not justified by experience. I suspect that efforts to legislate absolute prohibitions on same-gender marriage will fail in the long run. That, I predict, will ultimately be the fate of the federal attempt to restrict marriage by laws, such as the Defense of Marriage Act (DOMA). In Massachusetts v. U.S., 698 F. Supp. 2d 234 (D. Mass.), a federal court ruled that DOMA interfered with a state’s 10th Amendment right to regulate marriage and family; in Perry v. Schwarzengger, 704 F. Supp. 2d 921 (N.D. Cal.), a federal court ruled that a state’s bar on same-sex marriage created by a referendum had no rational basis. In 2011 the U.S. Department of Justice announced that while it would enforce DOMA, it would not defend the statute in court cases.
An example is found in our neighbor Canada. In 1999, the Canadian House of Commons defined marriage as “the union of one man and one woman,” but less than a decade later, Canada recognized the right of two persons to marry, regardless of gender. Canadian Civil Marriage Act, 2005 S.C. ch. 33.

The Procreation Argument

The first courts to consider marriage license applications for same-gender couples focused considerable attention on the proposition that the purpose of marriage is procreation and that same-sex couples are not capable of producing children. The legislative history of the Defense of Marriage Act suggested that the procreation argument had considerable influence in the enactment of that Act. (H.R. Rep. No. 104-664, pt. V. at 12–14). Although it is true that infertility or postreproduction age has never been a bar to legal marriage, the prevailing argument in this analysis was that by restricting marriage to different-gender couples, the law reaffirmed the potential for procreation as a purpose of marriage.

By the start of the twenty-first century, the procreation argument was annulled by advances in reproductive medicine, which made it possible for same-sex couples to produce children through assisted reproductive technologies. Both all-female and all-male unions have used this technology to have children, and though the law is not uniform everywhere, courts have increasingly recognized the parental legal status of children conceived by its use.

The American Bar Association Section of Family Law has taken the lead in developing law affecting this medical science by drafting and approving the Model Act Governing Assisted Reproductive Technology (2008). Although some states have insurance or other regulations that restrict recognition of assisted reproduction, its use by same-gender couples is nowhere different legally than is its use by heterosexual couples.

The Changing Legal Landscape

After Massachusetts became the first to rule that its state constitution protected the right of same-gender couples to obtain a marriage license, other states followed the lead of Vermont and enacted statutes creating civil unions or domestic partnerships. However, until recently, efforts to legalize same-sex marriage did not meet with success, other than in Massachusetts. In 2008, Connecticut recognized the right of same-gender couples to marry in Kerrigan v. Comm’r of Public Health, 957 A.2d 407 (Conn. 2008). In 2009, Iowa, by court decision, did the same in Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009).

Then three more states enacted legislation allowing same-sex marriage—Vermont, Maine, and New Hampshire—although the Maine law was overturned by voter referendum. A referendum in California (Prop. 8) amended the state constitution and effectively annulled a California decision authorizing same-sex marriage. The court later ruled that the referendum only applied prospectively and that same-gender marriages that took place before its enactment were valid. Strauss v. Horton, 207 P.3d 48 (Cal. 2009).

It is impossible to predict with certainty where recent acceptance of same-sex marriage will lead in the future. However, it is clear that American society’s increasing acceptance of principles of equality for previously excluded groups has found greater acceptance in the law governing marriage, at least in some states. It is likely that over the next decade, efforts in still more states will build on recent developments that have marked some legal acceptance of same-sex marriage.

Charles P. Kindregan, Jr., is Professor of Family Law at Suffolk University Law School. He is the coauthor (with Judith Crittenden) of Alabama Family Law and of Massachusetts Family Law (3rd edition) and other books and articles.

Published in Family Advocate, Vol. 32, No. 3, (Winter 2010) p. 8–9. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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