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History of Marriage Equality ’93-’08
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Baehr v. Lewin, (Hawai’i, 1993)
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First State Supreme Court to rule “traditional marriage
laws” unconstitutional (plurality decision)
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Sex discrimination (yes)
Sexual orientation discrimination (no)
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Federal Defense of Marriage Act
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Dependent on Immutability of Homosexuality
Sec 1: No state has to recognize same-sex marriages
Sec 2: Federal government prohibited from recognizing SSM
(Signed into law by Pres. Clinton Sep. 21, 1996)
Baehr v. Miike, (Hawai’i, 1997)
Repealed in Nov. 1998 by Amendment 2
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“The Legislature shall have the power to regulate
marriage.”
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History of Marriage Equality ’93-’08
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Baker v. State (Vermont, 1999)
 Ruled the State of Vermont must treat same-sex couples
similarly to opposite-sex couples
 Vermont Legislature enacted and Gov. Howard Dean signed
the nation’s first Civil Unions bill which went into effect July 1,
2000
Electoral Backlash Accelerates
 1998 (HI, AK)
 2000 (NE, CA)
 California’s Proposition 22 passes March 7, 2000
62%-38% “Only marriage between a man and a
woman shall be valid or recognized in California”
 2002 (NV)
 2004 (13 states!)
 2005 (KS, TX)
 2006 (8 states, AZ becomes first and only state to defeat
an anti-gay marriage ballot measure)
 2008 (CA, FL, AZ)
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History of Marriage Equality ’93-’08
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Goodridge v. Dept. of Public Health (Massachusetts, 2003)
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Ruled the State’s denial of civil marriage was not “rationally
related to a legitimate state interest” and violated due process
(fundamental right to marry) and equal protection (creation of
second class citizens)
Delayed the decision 180 days to go into effect on May 17, 2004
(50th Anniversary of Brown v. Board of Education)
MA constitution requires amendments approved by state
legislature in two consecutive sessions (earliest The People would
be able to vote on the question would be November 2006)
February 12 to March 11, 2004 San Francisco City Clerk
issues marriage licenses to same-sex couples
Federal Marriage Amendment (FAILED 227 Yes, 186 No Sep.
30, 2004 in U.S. House)
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“Marriage in the United States shall consist solely of the union of
a man and a woman. Neither this Constitution, nor the
constitution of any State, shall be construed to require that
marriage or the legal incidents thereof be conferred upon any
union other than the union of a man and a woman”
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History of Marriage Equality ’93-’08
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Do Justices read election returns? George W. Bush
defeats John Kerry in 2004 election
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2005-2008 mostly state court losses
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Legislative actions: California passes marriage bills in
2005 and 2007, vetoed both times by Governator
Washington (2006)
New York (2006)
Maryland (2007)
Lewis v. Harris (New Jersey, 2006)
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In Re Marriage Cases (California, 2008)
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State must treat same-sex couples equally
Proposition 22 and state’s marriage law are
unconstitutional
sexual orientation is a suspect classification
Kerrigan v. Commissioner of Public Health
(Connecticut, Oct. 28, 2008)
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Civil Unions are not equivalent to marriage!
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The Future!?
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Blogger Nate Silver
(fivethirtyeight.com) has
looked at the 30 states that
have voted to amend their
constitution and done a
regression analysis which
shows that the most
important factors are
1. The year in which the
amendment was voted
upon;
2. The percentage of adults in
2008 Gallup tracking
surveys who said that
religion was an important
part of their daily lives;
3. The percentage of white
evangelicals in the state.
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When extrapolated into the
future it shows the year in
which a similar vote to ban
gay marriage would fail in
each state
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