News - June 1996

Marriage: Facts about Hawaii Case and Federal Bill

NEW YORK (May 24, 1996) Lambda Legal Defense and Education Fund, the country's leading gay and lesbian legal rights organization, detailed May 24 numerous constitutional barriers to federal anti-marriage bills, saying they are really attacks against lesbians and gay men.

"The anti-marriage bills now before Congress are gratuitous, vicious, and unconstitutional," said Evan Wolfson, director of Lambda's Marriage Project, noting that no state in the country recognizes civil marriages by gay couples. "Pretending to give discretionary power to the states, the bills really would grab new powers for the federal government," he added.

Wolfson, who is co-counsel on Baehr v. Miike, the Hawaii case seeking the freedom to marry for gay people, said this week's Supreme Court ruling in Romer v. Evans bolsters constitutional arguments against the proposed federal legislation, which would invent an unprecedented federal definition of marriage and exclude any lawfully married gay couples from the protections of civil marriage.

"With this week's historic decision, the Supreme Court made clear that laws aimed at withdrawing legal rights from a targeted group here, lesbians and gay men are unconstitutional on equal protection grounds," Wolfson said. "The anti-gay effort to create two classes of lawful marriages is precisely what the Court calls a classification of persons undertaken for its own sake...to make them unequal to everyone else'," Wolfson said, quoting Monday's decision. "Congress just cannot do that."

Wolfson summarized several legal objections to the federal anti-marriage bills:

  1. Violating the Tenth Amendment, which reserves powers for the states, the bills would insert the federal government for the first time in history into the definition of marriage. The bills give Congress the power to dictate what are "good" marriages and "bad" marriages, punishing the latter by denying federal protections and benefits such as social security, federal pensions for surviving spouses, and "family unification" in immigration.

  2. The bills would violate the Constitution s Full Faith and Credit clause, which requires that official acts and proceedings of each state be recognized by sister states. Congress does not have the constitutional power to decide when a state act gets interstate respect or when people are stripped of those rates as they travel through the country.

  3. The bills would violate constitutional protections that forbid the Government from discriminating by creating a disfavored, second-class of citizens or marriages.

  4. The bills would make America a "house divided" for the couples who would be unsure whether they remained married whenever they moved or traveled from state to state. This also would create an untenable situation for these couples' children, their employers, creditors, businesses, government agencies, and others.

  5. These unconstitutional election-year bills appeal to anti-gay disapproval, dislike, or discomfort the very animus rejected by the Supreme Court as a basis for government discrimination.

"Regardless of how people feel right now about civil marriage for lesbians and gay men, these bills are bad law. People are just beginning to talk about equal marriage rights, and Congress should not choke off public debate to indulge in election-year attacks against lesbians and gay men," Wolfson said, adding, "Committed lesbian and gay relationships are a reality. Allowing our relationships to share in civil marriage would not destabilize or detract from non-gay marriages."

Lambda created the Marriage Project in 1994 to promote and coordinate efforts nationwide to win and keep the freedom to marry for lesbians and gay men. The Marriage Project has published a range of materials on the Freedom to Marry, and has this year assisted non-gay and gay people in the thirty-five states where religious-political extremist groups are pushing anti-marriage bills. Seventeen states have rejected the measures; ten have adopted them; eight are still pending.

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