ACLU ANSWERS Gay Marriage: Should Lesbian and Gay Couples be Allowed to Marry?

June 1998

Civil marriage is the primary institution in our society for recognizing our most intimate, committed relationships. It is also the device our society uses to identify our partners for a range of rights and responsibilities -- everything from retirement programs to hospital visitations.

For years, lesbians and gay men across the country have been fighting for the freedom to marry in order to secure those same rights and recognition. But recently, spurred by a court case in Hawaii, the battle has moved center stage to become one of the burning issues of our time.

In December 1996, a trial court in Hawaii ruled that the state's ban on same-sex marriages violates the equal protection clause of the Hawaii constitution. The case was brought by two lesbian couples and one gay male couple who were denied marriage licenses in 1991.

The trial court ruling -- the first of its kind in the nation's history -- held that Hawaii had failed to meet its burden under a Hawaii Supreme Court decision to offer a "compelling" reason to maintain a discriminatory practice. That earlier decision by the Hawaii Supreme Court had held that the state's refusal to honor same-sex marriages may violate the Hawaii constitution's ban on sex discrimination, just as laws banning marriages between people of different races would violate race anti-discrimination laws.

The trial court ruling was appealed was appealed to the Hawaii Supreme Court, which has not yet rendered its final desicion. Meanwhile, in November 1998, Hawaii's citizens will vote on whther the legislature should be instructed to amend the state's constitution to prohibit same sex marriage.

There is a strong possibility that the lawsuit will compel Hawaii to begin allowing lesbians and gay men to marry. If that happens, other states will have to decide how to treat those legally married couples if they move to another state, or visit another state. The issue will also arise if a couple from another state goes to Hawaii to get married. 

But opponents are not waiting for Hawaii to actually permit same sex marriage. In the past couple of years, bills banning same-sex marriage were introduced in most states. Although many of these bills have been defeated, more than half the states have enacted discriminatory laws.

In addition, the federal government has stepped in and passed the so-called "Defense of Marriage Act" designed to ban federal recognition of lesbian and gay couples, and allow state governments to ignore same-sex marriages performed in other states.

Gays and lesbians are currently denied the opportunity to marry in all 50 states. Yet, marriage is a basic human right that should not be denied to anyone. If a lesbian or gay couple wants to marry and commit themselves to each other, why should anyone interfere?

Marriage is also the device our society uses to identify our partners for an enormous range of practical situations. But because the committed relationships of lesbians and gay men are not recognized by law, they are denied the basic rights and protections that married couples enjoy. A gay couple who has been together for decades should have the right to visit a partner in a hospital, designate an heir, or take bereavement or sick leave.

Marriage is a personal decision that belongs to the two consenting adults in a relationship, not the government. The state should not be in the position of arranging our marriages.

"The ACLU supports legal recognition of lesbian and gay relationships, including the right to marry. Such recognition is imperative for the complete legal equality of lesbian and gay individuals." ACLU Policy No. 264.

The ACLU has also endorsed the "marriage resolution" developed by a coalition of groups working for the right of lesbians and gay men to marry. It states:

Because marriage is a basic human right and an individual personal choice, RESOLVED, the State should not interfere with same-gender couples who choose to marry and share fully and equally in the rights, responsibilities, and commitment of civil marriage. 

FACTS & QUOTES

Rights Denied to Gay Americans

Denying lesbians and gay men the right to marry denies them simple, basic dignity and has serious practical costs as well. Among the practical consequences unique to marriage are the rights to:

• visit a partner or a partner's child in a hospital; 
• inherit from your partner if she or he doesn't have a valid will; 
• obtain joint health, home and auto insurance policies;  
• enter joint rental agreements;  
• make medical decisions on a partner's behalf in event of illness;  
• take bereavement or sick leave to care for a partner or a partner's child;  
• choose a final resting place for a deceased partner;  
• obtain wrongful death benefits for a surviving partner and children;  
• get an equitable division of property in a divorce;  
• have joint child custody, visitation, adoption and foster care;  
• determine child custody and support in a divorce;  
• have a spouse covered under Social Security and Medicare;  
• file joint tax returns;  
• obtain veterans' discounts on medical care, education and home loans;  
• apply for immigration and residency for partners from other countries; and  
• obtain domestic violence protective orders. 

"Marriage is a basic human right. You cannot tell people they cannot fall in love. Dr. Martin Luther King, Jr. used to say when people talked about interracial marriage, and I quote, "Races do not fall in love and get married. Individuals fall in love and get married."

(Testimony of Rep. John Lewis of Georgia before Congress on the Defense of Marriage Act, 7/1/96)

"It will be up to each church to determine whether or not to conduct these marriages. This is a very different question than whether or not there are civil or State sponsored same-gender marriages. Regardless of the outcome of the court case, no church or clergy will be forced to perform or to recognize same-gender marriages."

(Clergy Coalition and the Coalition for Equality and Diversity, Christianity and Same-Gender Marriage, 8/96)

Marriage is not premised on procreation. (1965 U.S. Supreme Court ruling in Griswold v. Connecticut). Besides, many married couples do not or cannot have children, and many lesbian and gay couples do have and raise children.

ACLU Lesbian & Gay Rights Project 

125 Broad Street
New York, New York 10004
212-549-2627
lgbthiv@aclu.org 

  

Lambda Legal Defense and Education Fund 

The Marriage Project
120 Wall Street, Suite 1500
New York, New York 10005
212-809-8585