Human & Constitutional Rights, Hot Topics

Home

Country Reports

International Links

Regional Links

National Links

Documents

Web Resources

Gay Rights Rulings in U.S.
and Canada Fuel Marriage Battle

The years 2003 and 2004 have seen important developments in homosexuals’ rights in the United States and Canada. Together these events have pushed marriage to the forefront of the gay civil rights movement, and also invigorated those opposed to legalizing gay marriage.

Supreme Court Strikes Down "Homosexual Conduct" Laws

On June 26th 2003, the U.S. Supreme Court struck down section 21.06 of the Texas penal code, which had criminalized "deviate sexual intercourse with another individual of the same sex." The Lawrence v. Texas opinion, issued by Justice Anthony Kennedy, struck down similar so-called anti-sodomy laws in the remaining 13 states that had them. It also overruled Bowers v. Hardwick, a 1986 U.S. Supreme Court opinion that cited moral disapproval as a legitimate reason for states to regulate intimate behavior.

Legal scholars think that the decision could have implications for other gay civil rights issues, including marriage. Jeffrey Rosen wrote in the New York Times that "by ruling out moral disapproval as a permissible basis for legislation, Kennedy, in the eyes of liberal activists and social conservatives alike, made it more likely that lower courts will come to recognize a constitutional right to gay marriage."

Canadian Provincial Courts Recognize Same-Sex Marriage
Also in 2003, two provinces in Canada legalized gay marriage. On June 10th, the Court of Appeal for Ontario ruled that defining marriage as strictly a male-female union was contrary to Canada's Charter of Rights. On July 8th, the British Columbia Court of Appeal followed suit, and proclaimed legal marriage for same-sex couples available immediately. The Canadian provinces became the third and fourth governments in the world, following the Netherlands and Belgium, to give gay and lesbian couples the right to full civil marriage. Numerous other countries recognize same-sex "domestic partnerships" or "civil unions" in law, though these arrangements do not generally carry the same legal and economic privileges as marriage. These countries include Croatia, Denmark, Finland, France, Germany, Hungary, Iceland, Norway, Portugal, and Sweden.

Battle Brews Over Same-Sex Marriage in United States
Most gay civil rights organizations in the United States, including the Human Rights Campaign, are seeking full civil marriage rights for homosexuals rather than a separate recognized status such as domestic partnership or civil union. The organizations say that a legally recognized, non-marriage status would be inferior because it would continue to deny certain rights to same-sex partners, such as the right to make decisions on a partner's behalf in a medical emergency and the right to petition for a partner to immigrate. For more information on efforts to achieve civil marriage rights for same-sex couples, see  the Partners Task Force for Gay and Lesbian Couples site.

In November 2003, the Supreme Judicial Court of Massachusetts ruled in Goodridge et al. v. Department of Public Health that same-sex couples must be given full civil marriage rights under the state constitution. Then in January 2004, in response to a query from the state’s senate about whether allowing gays to form civil unions would be sufficient, the court upheld its ruling and rejected civil unions. President Bush responded that the ruling was “deeply troubling."

The ruling allowing same-sex marriage will become Massachusetts law in May of 2004. Many predict that the state legislature will respond by trying to pass a constitutional amendment banning the recognition of same-sex marriage. Such an amendment would have to be ratified by both houses of the legislature as well as by voters. This kind of legislative response would follow a pattern that has occurred in many states. In1993, the Supreme Court of Hawaii became the first state supreme court to rule that it was unconstitutional to bar gay couples from marriage. State legislators quickly responded by passing a constitutional amendment banning the recognition of gay marriages. Since then, a total of 37 states have passed laws declaring that they would not recognize same-sex marriages. In 1996 the U.S. Congress passed the Defense of Marriage Act, which announced that those laws were constitutional and declared that "the word `marriage' means only a legal union between one man and one woman."

Aiming to bar marriage to homosexuals once and for all, on May 21st, 2003, members of the U.S. House of Representatives proposed an amendment to the constitution stating that "marriage in the United States shall consist only of the union of a man and a woman." Amending the Constitution is difficult, as it requires passage by two-thirds of the Senate and House and ratification by three-fourths, or 38, of the states. In his January 20, 2004 State of the Union speech President Bush stopped short of endorsing the constitutional amendment, but affirmed his support for the 1996 Defense of Marriage Act, and said that “if judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process."

DOCUMENTS
  • U.S. Supreme Court opinion in Lawrence v. Texas, decided June 26, 2003. The opinion is also available here.
  • Amicus brief filed by human rights organizations in Lawrence v. Texas.
  • Goodridge et al. v. Department of Public Health The decision is also available here.
  • The Defense of Marriage Act, passed in 1996.
  • The U.S. Supreme Court’s 1986 opinion in Bowers v. Hardwick.
  • The Federal Marriage Amendment proposed in May, 2003. It can also be found by searching Thomas for HJ.Res.56.
  • The Texas penal code. Section 21.06 said that "a person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex." It was struck down by the U.S. Supreme Court in Lawrence v. Texas.
  • The Ontario Court of Appeal’s June 10, 2003 decision in Halpern et al v. Attorney General of Canada et al, finding in favor of same-sex marriage.
  • Synopsis of Halpern et al v. Attorney General of Canada et al.
  • The British Columbia Court of Appeal’s July 8, 2003 decision in Barbeau v. British Columbia, finding in favor of same-sex marriage.
ARTICLES AND COMMENTARY
NON-GOVERNMENTAL ORGANIZATIONS.

Working for same-sex marriage:

Working against same-sex marriage:

OTHER RESOURCES

Written Dec 8, 2003. Updated Feb 5,  2008


Human and Constitutional Rights Resource Page.

Hot Topics