This article from NYTimes.com
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An EDITORIAL-OP/ED on gay marriage recognition. It's a two page article.
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The Road to Gay Marriage
March 7, 2004
When Massachusetts' highest court ruled that gays have a
right to marry, it opened a floodgate. From San Francisco
to New Paltz, N.Y., thousands of gay couples have wed, and
the movement shows no sign of slowing. There has been
opposition, from the White House down, but support has come
from across the nation and the political spectrum. Arnold
Schwarzenegger, the Republican governor of the most
populous state, said it would be "fine" with him if
California allowed gay marriage. The student newspaper at
Baylor, the world's largest Baptist university, ran a
At an anti-gay-marriage meeting in Washington last week,
Senator Bill Frist, the majority leader, warned that the
"wildfire" of same-sex marriages will spread unless
opponents mobilize. But even if they do, it is unlikely gay
marriage can or will be halted. Opponents are pinning their
hopes on a federal constitutional amendment, but even many
Americans who are skittish about gay marriage do not want
to enshrine intolerance as one of the nation's fundamental
principles. The founders made it extremely hard to amend
the Constitution, and it is unlikely this effort will
With allies in the White House and both houses of Congress,
gay marriage opponents want the issue decided in
Washington. But it appears we are embarking on 50 national
conversations, not one. Following the lead of Vermont,
which has civil unions, and Massachusetts, other states
will weigh what rights to accord same-sex couples, and how
to treat marriages and unions from other states. When the
federal government does act, it is likely that, as with the
Supreme Court's 1967 ruling on interracial marriage, it
will be to lift up those states that failed to give all
their citizens equal rights.
The idea of marriage between two people of the same sex is
still very new, and for some unsettling, but we have been
down this road before. This debate follows the same
narrative arc as women's liberation, racial integration,
disability rights and every other march of marginalized
Americans into the mainstream. Same-sex marriage seems
destined to have the same trajectory: from being too
outlandish to be taken seriously, to being branded
offensive and lawless, to eventual acceptance.
The Flood of Gay Marriages
The television images from San
Francisco brought gay marriage into America's living rooms
in a way no court decision could. Mayor Gavin Newsom's
critics called his actions lawless, but the law was, and
still is, murky. When California's attorney general asked
the State Supreme Court to address same-sex marriage, it
declined to stop the city from performing the ceremonies
right away, or to invalidate those already performed. When
New Paltz's mayor began performing same-sex marriages, New
York law seemed similarly uncertain.
The rebellious mayors have so far acted honorably. Testing
the law is a civil rights tradition: Jim Crow laws were
undone by blacks who refused to obey them. Visible protests
of questionable laws can, as the Rev. Dr. Martin Luther
King Jr. wrote in "Letter From Birmingham Jail,"
"dramatize" an issue so "it can no longer be ignored." The
mayors have succeeded in dramatizing the issue. But for
them to defy court orders requires a far greater crisis
than is present here. If courts direct officials not to
perform gay marriages, they should not.
The Role of `Activist Judges'
Opponents of gay marriage
have tried to place all of the blame for recent events on
"activist judges." Senator John Cornyn, a Texas Republican,
has called for a Congressional investigation of "judicial
invalidation of traditional marriage laws." The judiciary,
however, is only one part of a much larger story. Gay
rights and gay marriages are being driven by an array of
social forces and institutions. In California, the driving
force has been an elected mayor, with the support of his
constituents. In that case, it is gay marriage opponents
who are asking judges to step in.
To the extent that the courts do have a leading role, it is
perfectly natural. Gay marriage opponents like to portray
judges as alien beings, but state court judges are an
integral part of state government. They were elected, or
appointed by someone who was. The founders created three
equal branches, and a Constitution setting out broad
principles, at both the national and state levels. Courts
are supposed to give life to phrases like "equal
protection" and "due process." Much of the nation's
progress, from integration to religious freedom, has been
won just this way.
The Emerging Legal Patchwork
As more courts and legislatures take up the issue, the
rules for gay civil unions and marriages will most likely
vary considerably across the nation. More states can be
expected to follow Vermont's lead and allow civil unions
that carry most of the rights of marriage. Others may allow
gay marriage. This is hardly unusual, since states have
historically made their own marriage and divorce rules.
Currently, some people, such as first cousins, can marry in
some states but not others.
The last great constitutional transformation of marriage in
this country, the invalidation of laws against interracial
marriage, moved slowly. In 1948, California became the
first state in the nation to strike down its laws against
interracial marriages. It was not until 1967 that the
Supreme Court held Virginia's law unconstitutional, and
created a rule that applied nationally.
The Battle for Interstate Recognition
Popular attention is
now on wedding ceremonies for people of the same sex, but a
no less important issue is whether states will recognize
gay marriages and unions performed in other states. In
1996, Congress passed the Defense of Marriage Act, which
says no state can be forced to recognize gay marriages. But
the law has not been tested, and it should eventually be
found to violate the constitutional requirement that states
respect each other's legal acts. As a practical matter, the
nation is too tightly bound today for people's marriages to
dissolve, and child custody arrangements to change, merely
because they move to another state.
Whether or not they have to recognize other states' civil
unions and gay marriages, states clearly have the option
to. Whether they will is likely to be the next important
chapter of the gay marriage story. Couples who are married
or who have civil unions will return to their home states,
or move to new ones, and seek to have their status
recognized. Attorney General Eliot Spitzer of New York, in
an opinion last week, strongly suggested New York's law
requires it to recognize gay marriages and civil unions
entered into elsewhere. At least one New York court has
already reached this conclusion.
The controversy over same-sex weddings has obscured the
remarkable transformation in opinion over civil unions.
Less than 20 years ago, the United States Supreme Court
enthusiastically upheld a Georgia law making gay sex a
crime. Last year, the court reversed itself, and a national
consensus seems to be forming that gay couples have a right
to, at the least, enter into civil unions that carry the
same rights as marriage. Even President Bush, who has
endorsed a constitutional amendment to prohibit gay
marriage, has suggested he had no problem with states'
recognizing civil unions.
Civil unions, with rights similar to marriage, are a major
step, but ultimately only an interim one. As both sides in
the debate agree, marriage is something more than a mere
bundle of legal rights. Whatever else the state is handing
out when it issues a marriage license, whatever approval or
endorsement it is providing, will ultimately have to be
made available to all Americans equally.
To the Virginia judge who ruled that Mildred Jeter, a black
woman, and Richard Loving, a white man, could not marry,
the reason was self-evident. "Almighty God created the
races white, black, yellow, malay and red, and he placed
them on separate continents," he wrote. "And but for the
interference with his arrangement there would be no cause
for such marriages." Calling marriage one of the "basic
civil rights of man," the Supreme Court ruled in 1967 that
Virginia had to let interracial couples marry. Thirty-seven
years from now, the reasons for opposing gay marriage will
no doubt feel just as archaic, and the right to enter into
it will be just as widely accepted.