This month the Minnesota Legislature passed legislation that explicitly bans same-sex marriage. Minnesota isn’t the first state to declare that marriage must be reserved for a man and woman. Last September, the federal government adopted the Defense of Marriage Act in a pre-emptive strike against a pending Hawaii Supreme Court ruling that may legalize gay marriage in that state. DOMA allows states to deny recognition of same-sex marriages that could legally ensue in Hawaii or other states. Utah, Illinois, South Dakota and at least 13 other states have already endorsed the legislation. Unfortunately, DOMA may prove to be a dysfunctional and inconsistent policy if any state chooses to oppose it.
Under the U.S. Constitution, states must give full faith and credit to contracts and court rulings that occur in other states, unless they express opposition in their laws. If Hawaii permits gay marriages, reluctant states may be forced to recognize them. Proponents of DOMA assert that no state should have the power to formulate marriage laws for the rest of America. Thus, the act protects states’ rights to establish their own marriage laws. But if it also permits states to accept or reject same-sex marriage, the legal status of gay partnerships will be in limbo. Homosexual couples would move in and out of wedlock as they cross state boundaries.
Most legislators defend states’ rights to determine their own position on same-sex marriage. But few address gays’ right to have their relationships legally sanctioned. DOMA supporters who argue that society isn’t ready for gay marriage fail to acknowledge the emotional and economic needs of gay men and women. Although many gay couples have commitment ceremonies, most are denied the tangible benefits of marriage, including family health coverage, life insurance, tax breaks and child custody rights.
Despite the rhetoric of President Clinton, Sen. Paul Wellstone and other legislators who champion gay rights, homosexual couples still face widespread discrimination by the government. Political leaders who claim to support gays must help to form a strong, uniform policy that grants same-sex couples the equal right to marry. It’s not yet certain if Hawaii will legalize same-sex marriage. Although the Hawaii Supreme Court is expected to rule in favor of gay marriages, the Hawaii Legislature might counter the decision with a bill that outlaws them. It plans to allow voters in the November 1998 elections to vote on an amendment to the state constitution that would reserve marriage for heterosexual couples.
In the event Hawaii or another state permits gay marriages while others do not, same-sex couples will struggle to define their legal status. Problems will arise when gay couples legally marry in one state but migrate to one that forbids gay marriages. The decision of whether to grant them spousal benefits will be a tricky problem for lawyers and legislators to solve. Although DOMA protects the state’s authority to form their own marriage laws, it doesn’t provide a consistent policy for gay couples who desire the rights and responsibilities of marriage.