The question of just how to handle same-sex unions has been a zit on our nation's face for years, and President Bush finally popped it with his recent call to Congress for a constitutional amendment "protecting" marriage.
The pressure has been mounting for some time now. Recent polls show that although people are fairly evenly split when it comes to supporting rights for gay couples, people's opinions change significantly when the word "marriage" enters the equation. In a recent USA Today/Gallup poll, two-thirds of respondents opposed legally recognizing same-sex marriage. But a recent MTV Choose or Lose poll shows that a majority of people age 17-24 support gay marriage, and 40 percent strongly support it. And when it comes to an amendment, 50 percent strongly disagree with changing the Constitution.
With Bush's announcement on Tuesday, all of that growing tension hit national headlines. The president asked for an amendment "defining and protecting marriage as a union of a man and a woman as husband and wife." But there was a second — and potentially more complicated — sentence that many people missed amid all the hype. "The amendment should fully protect marriage," he continued, "while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage."
And it's that little addition that could pose a huge challenge to legislators, judges and citizens from the bottom of our country's political food chain all the way up to its highest offices. The president isn't advocating putting the federal kibosh on equal rights for gay couples, at least from his perspective. Instead, he's drawing the line at calling gay couples "married," and leaving everything else — from offering other options, like civil unions, to doing nothing at all — up to the states.
"I do believe ... that states ought to be able to determine the status of same-sex unions according to those states' desires," Republican Senator John McCain of Arizona told MTV's John Norris recently. "In Massachusetts, it's apparent that the majority of people ... approve of and want same-sex marriages to be treated on the same basis as heterosexual marriages. In my state of Arizona, that would not be the case. So the people who live in Arizona ought to be able to make that decision just as the people in Massachusetts made that decision."
Obviously, some states had already taken the lead on addressing these issues long before the president stepped in with his recommendation. In fact, all that activity on the state level likely had a lot to do with his decision to urge Congress to take an official stance.
In Vermont, the only state with existing civil-union legislation, and the first state to succeed in establishing laws of this kind, lawmakers had already decided that to call gay couples married would be taking things too far. But they recognized the need to create a system of benefits and protections for same-sex couples.
In Massachusetts, on the other hand, where the State Supreme Court ruled in early February that there was no constitutional reason to deny gays the right to marry, couples will be able to legally marry starting in May.
The vast majority of states, however, already have or are in the process of creating state Defense of Marriage Acts, based on federal legislation of the same name, defining marriage in heterosexual terms. This doesn't prevent these states from creating civil-union legislation for their gay populations. California, for example, which adopted a DOMA in 2000, plans to debut comprehensive domestic partnership laws in 2005 that may address some of the holes in existing civil-union legislation.
But what happens when a couple moves from a state where their union is recognized to one where it isn't? While states are generally compelled to recognize each other's laws, same-sex union is one arena where the rules simply don't apply. The language of 1996's federal DOMA releases the states from any obligation to honor each other's civil-union laws.
And for those who thought getting hitched was a huge hassle, divorce might present an even bigger headache. Massachusetts and Vermont are the only states with provisions for dissolving same-sex unions, but both states have one-year residency requirements, meaning that at least one member of the couple has to have been a resident of the state for a year before the state will officiate in any of these issues. The upcoming California legislation, arguably the most advanced in tackling all these concerns, ups the ante a bit, giving the state the power to divide a couple's assets and decide custody.
But that's just the beginning. With states able to individually determine their stances on same-sex union, the possible variations on the law are endless. Not to mention the inevitable chaos of translating all of that into federal terms — for tax returns, immigration, Social Security and a host of other arenas where the federal government has jurisdiction.
With the situation at the state level looking more and more complicated by the minute, some cities have also tried to take a stand. More than 3,000 marriage licenses have been issued to gay couples in San Francisco since February 12.
But the fact remains that, no matter what cities do, they're still only agents of the state when it comes to marrying couples, as Stanford law professor Richard Thompson Ford pointed out on Slate recently, so the licenses they issue probably aren't even valid within city limits. And though San Francisco Mayor Gavin Newsom has justified the city's decision by citing anti-discrimination language in the state constitution, it won't be long before he'll be forced to prove his case in court.
Others have already started to follow suit. In Chicago, Mayor Richard Daley has said that if Cook County clerk David Orr decides to take San Francisco's lead, he'll support the move. But in Bernalillo, New Mexico, a county clerk trying a similar tack only managed to issue 26 licenses before State Attorney General Patricia Madrid stepped in and declared them invalid.
No matter what happens, it'll be a long time before it's all sorted out. Amending the Constitution requires two-thirds' approval from both the House and Senate, and then it must be ratified by three-fourths of the states. That could take years, particularly with an issue as contentious as this one, which is why even as popular attitudes change, the law is often slow to catch up.
We asked some young people for their opinions about Bush's decision to call for a constitutional amendment, and here's what they had to say:
- Aaron Harris of Northwestern University, who agrees an amendment is needed
- Genevieve Wong of Northwestern University, who disagrees with Bush's move
For more political news, insight into the 2004 presidential election and information on registering to vote, check out ChooseorLose.com.