Same-sex marriage creates uncertainties decade after Massachusetts implementation
Elise Amendola, Associated Press
Ten years after Massachusetts became the first state to legalize same-sex marriage, supporters are praising a new definition of marriage equality and opponents are dreading a further erosion of the institution's traditional definition and a raft of unknown consequences.
It was May 17, 2004, that the first marriage licenses for same-sex couples were issued in the United States following landmark legal decision by the Bay State's high court. The event began a gradual movement toward legalizing same-sex marriage nationwide, either through legislation or court rulings.
While 33 states still have bans against gay marriage — many of which are under legal challenges — legalizing same-sex unions has occurred through court rulings in five states, by statute in eight states and the District of Columbia, and by voter referendum in three states. Ten of those states legalized same-sex marriage in the past two years.
At the same time some prominent public opinion polls show a majority of Americans now express support for same-sex marriage, a marked shift in public opinion from 2001, when the Pew Research Center found 57 percent of Americans opposed to same-sex marriage and 35 percent were in favor.
All this is cause for celebration for longtime advocates such as Evan Wolfson, president of Freedom to Marry, an organization that supports same-sex marriage.
"We are now celebrating 10 years of families helped and no one hurt," he said. "The gays have not used up all the marriage licenses; there's enough marriage to share."
But for opponents the damage of legalizing gay marriage is more than a paper shortage or legal procedure. Unless lawmakers carve out broad protections for those who oppose same-sex marriage on religious grounds, they see the trend of current court ruling favoring gay marriage as an erosion of freedom of expression and conscience rights.
"If same-sex marriage is established in law, it will be increasingly difficult for anyone who holds to the traditional view of conjugal marriage to maintain a witness to that truth under such a decision," said Matthew Franck, director of the Witherspoon Institute's Simon Center on Religion and the Constitution in Princeton, New Jersey. "Church-run schools, employers, adoption agencies, child-service agencies run by religious organizations — all of these institutions and private concerns will be adversely affected."
Bay State revolution
The same-sex marriage tide first turned in Massachusetts, the state that gave birth to the American Revolution more than 200 years earlier. On Nov. 18, 2003, Massachusetts' Supreme Judicial Court decided in favor of same-sex marriage in Goodridge v. Department of Public Health, saying that "barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution."
The justices gave legislators 180 days to change the law, and when the solons didn't, same-sex marriage was permitted. At 12:01 a.m. May 18, 2004, the city of Cambridge, Massachusetts, became the first in the state and the nation, to issue marriage licenses to same-sex couples.
According to the Cambridge Chronicle & Tab newspaper, 10,000 people "looking to be a part of history" lined Massachusetts Avenue there to witness the event.
"It was a massive mistake and a betrayal when the Supreme Judicial Court foisted same-sex marriage on the people of Massachusetts, and it remains so today," lamented Brian J. Brown, head of the National Organization for Marriage, which supports the traditional definition of marriage as being between one man and one woman.
The Massachusetts decision "started the same sort of lawlessness that we've seen with judges (elsewhere) saying they have the right to define marriage for a state, subverting the democratic process."
Brown said the "redefinition of marriage has had consequences" beyond what proponents concluded. In Massachusetts, the state has "deconstructed gender" by referring to mothers and fathers solely by the word "parent" in official proceedings, he claimed, and in schools, "kids are now taught their parents are bigots if they support the traditional definition of marriage."
The traditional marriage advocate said when the Massachusetts Senate refused to consider a voter-signed petition calling for a constitutional amendment defining marriage as between a man and a woman, it started a trend of elected officials in other states refusing to defend marriage laws and amendments passed by voters and/or legislatures.
In Oregon, state Attorney General Ellen Rosenbaum declared three months ago there was "no rational basis" for the 2004 voter-approved constitutional amendment defining marriage as being between one man and one woman, according to the Oregonian newspaper. On Wednesday, U.S. District Judge Michael McShane ruled Brown's group "had no (legal) standing" to defend the measure in that state.
The Oregon case is among dozens now wending their way through the federal and state courts. Out of the 10 federal cases on appeal, nine are rulings favoring same-sex marriage, most recently in Idaho, according to Freedom to Marry's database.
And if, as supporters hope and opponents fear, the Supreme Court of the United States weighs in and sets a national standard approving same-sex marriage, Franck and others fear the rippling consequences.
"Just look at what happened to Catholic Charities, which ceased adoption services in Massachusetts in the aftermath" of the 2003 ruling, he said. The Roman Catholic social-service agency shut down after the state required the agency to place children with same-sex married couples.
And other religiously linked institutions with admission, employment, housing or other policies prohibiting same-sex couples may face challenges, said attorney Nicholas Miller, director of the International Religious Liberty Institute at Andrews University in Berrien Springs, Michigan, which is owned by the Seventh-day Adventist Church.
"States may not have as strong a religious rights lobby as there is at the federal level," Miller said. Despite the fact that the Seventh-day Adventist Church does not endorse same-sex marriage, Miller said Adventist- and Catholic-owned hospitals in California are being required to provide employee benefits to same-sex couples.
Greg Scott, a spokesman for the Alliance Defending Freedom, which is litigating in several states to support traditional marriage, said the group hopes the U.S. Supreme Court will continue its view that marriage should be defined by the states, as it expressed in its 2013 ruling, U.S. vs. Windsor, which struck down the prohibition against same-sex marriage in federal law.
"We hope the Supreme Court stays consistent," Scott said. "Marriage is worth fighting for and there are a lot of people that do believe that. Perhaps a wrong decision at the Supreme Court will inspire millions of Americans to rebuild a culture of strong marriages and understand again what marriage is about."
Picking up the pieces
Meantime, legislators, attorneys and judges may be left to pick through the pieces of court rulings and state statutes to determine who must — and who may not — accommodate same-sex marriage.
Lawmakers could pass exemptions protecting a quasi-religious social organization such as the Catholic-based Knights of Columbus from having to rent its banquet facilities for a same-sex marriage reception, said Robin Fretwell Wilson, a law professor at the University of Illinois and an advocate for religious exemptions to same-sex marriage laws.
"To some extent the Knights of Columbus is a religious group (and) if you say we're going to treat every kind of membership hall as a public accommodation, you're putting them at risk (in) that if they won't yield on their religious conviction, they'd have to celebrate something they can't endorse," Wilson said.
She said it should be up to the legislatures to determine where to carve out protections for individuals, businesses and faith-based institutions that adhere to religious beliefs that prevent them from recognizing same-sex marriages.
The "worst (case) is to have to sue each other to define this," she said.
Some states have granted limited protections such as in Illinois, where religious-based schools like Wheaton College are exempt from equal housing for same-sex couples. Other states have shielded religious groups, like the Knights of Columbus, and sitting judges from performing gay marriages.
But same-sex marriage proponents vow to fight any exceptions for public facilities or services, whether owned by a religious institution or not.
"There is a problem when organizations want to have it both ways — open to the public for a revenue stream, but asserted to be private (religiously private or otherwise) when it comes to rules that regulate commercial activity," said Jennifer C. Pizer, senior counsel and director of the Law and Policy Project at Lambda Legal in Los Angeles.
That goes for religiously affiliated social service agencies as well.
"Those services are offered pursuant to state licensure and professional ethics rules for protection of the public," she said. "If the state and/or profession includes nondiscrimination rules within the standards for those services, the religious organization has a choice: either offer licensed services to the public for a fee in conformity with the applicable standards, or don’t offer them to the public."
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