The Hawaii same-sex marriage case began in 1991, when the state clerk refused marriage licences to three same-sex couples. Two years later, the Hawaii Supreme Court ruled that this denial was unlawful sex discrimination and sent the case back to the lower court to provide a "compelling reason" for the discrimination. On December 3rd, the lower court ruled that denying same-sex couples a marriage license was unconstitutional under the state's Equal Rights Amendment. We are expecting the decision to be stayed as it makes its way through the appeal process. A final decision is not expected for at least two years.
What states have battled anti-marriage bills?
Anti-marriage bills have been introduced in 37 states. One is pending in New Jersey. 16 states enacted the bills into law: AK, AZ, DE, GA, ID, IL, KS, MI, MO, NC, OK, PA, SC, SD, TN, UT. 20 states rejected, vetoed or failed to advance the bills: AL, CA, CO, FL, HI, IA, KY, LA, ME, MD, MN, MS, NM, NY, RI, VA, WA, WV, WI, WY. The statewide struggles will continue when legislatures reconvene, and the radical right has promised to reintroduce anti-same-sex marriage bills in all states that have not already enacted them.
Isn't marriage the same as "domestic partnership"?
No. In a handful of cities, municipalities and companies, there is limited recognition of relationships between unmarried partners, including lesbian, gay and bisexual couples. Although important, the responsibilities and rights of such domestic partnerships vary considerably, ranging from registries to some taxable benefits. While of limited help to some unmarried couples, they are not a substitute for the freedom to marry.
What is the Defense of Marriage Act and what are the implications of the law?
With the recent passage of the so-called Defense of Marriage Act (DOMA), the federal government made a radical venture into marriage law for the first time in U.S. history. DOMA, which resoundingly passed the Senate and House and was promptly signed into law by President Clinton, attempts to give states the unconstitutional power to deny recognition of same-sex marriages performed in other states. It also defines marriage as the union between a man and a woman, thereby denying federal benefits to same-sex couples who may be granted the right to marry in certain states. Despite DOMA's passage, the same-sex marriage battle will continue to be fought in the state legislatures, in addition to court cases challenging DOMA's constitutionality.
Isn't DOMA unconstitutional under the Full Faith and Credit Clause?
Yes. States are bound, by the Full Faith and Credit Clause of the Constitution, to honor states' contracts and judicial proceedings, including marriage. Currently, same-sex marriage is illegal in all states, but if Hawaii eventually allows same-sex marriage, people legally married in Hawaii would not be considered married by the federal government or the 16 states that have enacted anti-marriage laws. The Constitution was designed to prevent this type of complex and unworkable situation.
Is marriage a civil institution or a religious institution or both?
In the U.S., marriage is both a civil and religious institution. Though some religious denominations do recognize and perform same-sex ceremonies, organizing for equal marriage rights is focused on the freedom to have a civil marriage license issued by the state, not religious recognition.
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