Vote iQ Hot Topics: Gay Marriage

For much of recorded history, marriage varied widely throughout cultures and historical periods.  In the Old Testament and historical ancient Near East, polygamy was frequently practiced.  Some scholars believe same-sex marriage was practiced in Greece, Rome, and pre-modern Europe at various times.  In the West, for the most part marriage principally involved a contractual relationship between two people providing for the  transfer of property to offspring.   Among the nobility it was also a common tool in diplomacy.  Historian Stephanie Coontz points out that marriage did not become a sacrament in the Catholic Church until 1215, and notes that formal ceremonies requiring a priest and witnesses were not mandated until 1563.

In the United States, many marriages in the 18th and 19th centuries were unlicensed, essentially private compacts between two individuals.  Marriage law became more uniform over the 19th century but wide disparities existed between the states.  Currently, some states permit marriage at ages as young as 13 (with parental consent) and others as old as 21 (without it).  Twenty-six states currently allow marriage between first cousins, and common law marriages are recognized in 11 states and the District of Columbia.

Gay rights did not emerge on the national stage until the 1980s—partially with attention drawn by the AIDS epidemic—and substantial efforts by gay rights groups to push for legal marriage did not begin until the early 1990s.  The Clinton era was one of increased public tolerance but legal setbacks, as Bill Clinton, who pledged in 1992 to end the military’s ban on gays, disappointed gay rights activists with the compromised “Don’t Ask Don’t Tell” policy in 1993 and his signing of the conservative Defense of Marriage Act of 1996, which limited federal recognition of marriage to heterosexual couples.

Consequently, much of the struggle for the recognition of same-sex marriage took place at the state level.  In 1993, a Hawaii court ruled that the state was required to prove that a law limiting marriage to opposite-sex couples involved a compelling state interest.  Before this case could be decided by the Hawaii Supreme Court, the voters passed a constitutional amendment effectively restricting the definition of marriage to heterosexual couples. 

In 2003, the Massachusetts Supreme Court ruled that prohibition of marriage to same-sex couples was unconstitutional and ordered the legislature to authorize gay marriage.  In 2004, Massachusetts began recognizing legal gay marriages.  That same year, San Francisco Mayor Gavin Newsom ordered the city to issue marriage licenses to same-sex couples, but shortly after the California Supreme Court ruled those marriages invalid. 

Republicans nationwide used unease over gay marriage legalization to drive turnout among their socially conservative base, contributing, some observers claim, to George Bush’s re-election victory in the fall of 2004. Despite growing public support for legalization, every major candidate vying for the Democratic presidential nomination in 2008 came out in opposition to gay marriage, though most supported legal benefits that closely match marriage.

In 2008, the California Supreme Court overturned the state’s law banning same sex marriage, prompting a voter initiative to amend the constitution re-instituting the ban.  That initiative, Proposition 8, passed narrowly in a year of high Democratic turnout.  In 2009, the Iowa Supreme Court struck down state laws banning same-sex marriage.  In Vermont, Connecticut, New Hampshire, and Maine, the state legislatures passed laws legalizing same-sex marriage, though the Maine law was overturned by a popular referendum before taking effect.  A similar effort in the state of New York died in the state senate.  By 2010, 27 states had constitutional bans on gay marriage, including some that otherwise granted civil union benefits.

In 2010, two major federal court rulings dramatically reshaped the landscape of the gay marriage issue.  In July of 2010 a federal district judge in Massachusetts ruled that the federal Defense of Marriage Act of 1996, which banned federal recognition of same-sex marriage, was unconstitutional.  He ruled that the law violated the 10th amendment, which invests rights which are not specifically prescribed to the federal government to the states.  This amendment is most commonly a favorite among conservatives because of the limits it places on federal power.

In August 2010 a federal district judge overturned California’s ban on gay marriage, Proposition 8, on the grounds that it violated the 14th Amendment.  The case is under appeal.  Many expect it to be heard by the Supreme Court.  The decision cannot be implemented until the appeals process is complete.

While the two rulings could prove very consequential and have garnered much media attention, in the midst of a recession few voters consider the debate over gay marriage to be among the critical issues facing the country.  In August of 2010, in a first for a major poll, a majority of Americans indicated they support legalizing gay marriage.