Gay and Lesbian Rights

Gay and lesbian activists have pressed for legal recognition of homosexual relationships. Under current law, a gay couple is treated differently

Rev. Kevin Coffey looks on as Joe and Michael Galluccio exchange wedding vows at an Episcopal Church in New Jersey. Following the U.S. Supreme Court's decision in Lawrence v. Texas (2003), attention turned to the legal recognition of such unions.
AP/WIDE WORLD PHOTOS

than a married heterosexual couple. Thus, the benefits of probate and tax law are denied same-sex couples. For example, if a partner in a same-sex relationship dies, under law, the surviving partner is not entitled to any of the deceased's property, unless the deceased provided for such an entitlement in a will.

With the appearance of ACQUIRED IMMUNE DEFICIENCY SYNDROME (AIDS), health benefits became particularly important to gay couples. Unless a company or government unit makes specific provisions for same-sex couples, an employee's same-sex partner who is not employed by the organization will not be allowed to join the employee's health plan.

Faced with these disparities, gay and lesbian activists first focused their attention on "domestic partnership" laws that would allow unmarried couples to register their relationship with a municipality. Attempts to implement domestic partnership failed in several cities, but New York City; Madison, Wisconsin; Takoma Park, Maryland; and Berkeley, San Francisco, Santa Cruz, and West Hollywood, California, have enacted this type of ordinance.

A more radical attempt to redefine the family and domestic relationships occurred in Hawaii, where gay and lesbian couples filed a lawsuit when they were refused a marriage license. The issue of same-sex marriage reached the Hawaii Supreme Court in Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993). The court ruled that prohibiting same-sex couples from marrying was a violation of Hawaii's constitutional ban on SEX DISCRIMINATION. The court remanded the case for a determination of whether the state had a compelling interest to preclude the granting of licenses.

Subsequently in Baehr v. Mike, 1196 WL 694235 (1996), the Hawaii trial court ruled that prohibiting same-sex couples from marrying was not justified for any reason, much less a compelling reason as specified by the Supreme Court. The court further ruled that these couples should therefore be allowed to marry. As the case was heading to the Hawaii Supreme Court, a REFERENDUM was passed by the voters of Hawaii to amend the constitution to allow the state Legislature to restrict marriage to men and women only. As a result, Hawaii's couples lawsuit was ended and the state restricted marriage solely to that of men and women.

Similar lawsuits have been filed in other jurisdictions, as well. In Brause v. Bureau of Vital Statistics, 1998 WL 88 743 (1998), an Alaskan trial court ruled that choosing a marital partner is a fundamental right and cannot be interfered with by the state absent a compelling reason. Later that year, the voters amended the Alaska Constitution to require that all marriages be between a man and a woman which, like Hawaii, ended the Alaskan couples lawsuit. In Massachusetts, in Goodridge v. Dept. of Health, Mass.L. Rptr. 591, 2002 WL 1299135, gay and lesbian couples filed a state court lawsuit seeking the right to marry. The suit was dismissed by the trial court and as of late 2003 is on appeal.

The issue of same-sex marriage is of national interest because states traditionally accord FULL FAITH AND CREDIT (full legal recognition) to marriages performed in other states. Faced with the prospect of gay and lesbian couples flying to Hawaii to marry and then demanding legal recognition of their union in their home states, several state legislatures passed laws that forbid recognition. Congress responded by enacting the Defense of Marriage Act, 1 U.S.C.A. 7. The act denies certain federal benefits and entitlements to same-sex marriage partners by defining marriage as a legal union between a man and a woman. It also allows states to ban same-sex marriages within their borders and to not recognize such marriages performed in other states.

In contrast to the national focus on issues such as same-sex marriage, local gay and lesbian groups have spent their energies helping defend lesbian mothers and gay fathers faced with the loss of their children in custody cases. In the Virginia case of Bottoms v. Bottoms, 18 Va. App. 481, 444 S.E.2d 276 (1994), a trial judge awarded custody of Sharon Bottoms's son to her mother, solely because Bottoms is a lesbian. The Virginia Court of Appeals reversed the decision as an abuse of the court's discretion and returned custody to the mother. This case indicates the problems gay men and lesbians have in court. The National Center for Lesbian Rights estimates that only approximately one hundred homosexuals gained parental rights through the courts between 1985 and 1994.

Despite the efforts of these local groups, several courts have continued to uphold legislation and judicial rulings that disfavor homosexuals as parents. For example, in 2001, the U.S. District Court for the Southern District of Florida upheld a 1977 Florida law that prohibits homosexuals from adopting children. Lofton v. Kearney, 157 F. Supp. 2d 1327 (S.D. Fla. 2001). Similarly, in 2002, the Alabama Supreme Court ruled unanimously to award custody of three teenagers to their father instead of to their lesbian mother. Ex parte H.H., 830 So. 2d 21 (Ala. 2002).