Gay-marriage foes try to stop 'activist courts'
USA Today
February 25, 2004

A: One day after launching a more aggressive stage in his re-election campaign, the president backed a constitutional amendment that would ban gay marriage.

Bush said the move was needed to stop "activist courts" from changing the definition of the "most enduring human institution" and to end "confusion on an issue that requires clarity."

Q: Is there a gay-marriage amendment before Congress?

A: Yes. Rep. Marilyn Musgrave, a first-term Republican from Colorado, introduced a measure nearly a year ago. Bush did not specifically endorse Musgrave's amendment.

Q: Why do opponents of gay marriage want a constitutional amendment?

A: They fear that judges at the state and federal level will rule that laws against gay marriage are unconstitutional.

Opponents also cite actions by local officials who have condoned gay marriages in San Francisco and New Mexico. A constitutional amendment would become the law of the land.

Q: Bush said the amendment would "fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage." Does that make the measure less controversial?

A: It's not clear. Some interpret Bush's words as meaning that states could adopt civil unions and offer other protections to gay couples. But individual state laws could vary, meaning gay couples that relocate could lose or gain rights depending on where they live. Also, the word "marriage" has powerful connotations. Many see marriage as a key part of their religious faith.

Gay activists say anything less than marriage is discriminatory. And the American Civil Liberties Union says the Musgrave amendment could lead to challenges of state laws that offer domestic partnership benefits, joint adoption rights and other rights to same-sex couples.

Marriage laws around world Same-sex marriage is legal in two countries and in some Canadian provinces. Several countries permit same-sex couples to register their partnership or cohabitation. Like heterosexual couples, same-sex couples who register are granted specific rights, responsibilities and legal recognition. Some countries also automatically grant unregistered same-sex couples rights and responsibilities after a specified period of living together. In some cases, the rights only cover some of a country's territories or states. Countries that permit marriage between same-sex couples: The Netherlands (since April 2001) Belgium (June 2003) Canada (only Ontario-June 2003 and British Columbia-July 2003) Countries with registered partnership and registered cohabitation: Canada (Manitoba, Nova Scotia and Ontario) Denmark Finland France Germany Iceland Norway Spain Sweden Switzerland Countries with rights for unregistered cohabitation: Argentina Australia Canada (British Columbia, New Brunswick, Newfoundland, Northwest Territories, Saskatchewan, Yukon Territory) Croatia Hungary New Zealand Portugal Scotland South Africa Switzerland Sources: The International Gay and Lesbian Association, Stonewall.org.uk

Q: How does the public feel?

A: National polls show a majority of Americans oppose gay marriage. The University of Pennsylvania's National Annenberg Election Survey reported Tuesday that 48% oppose a constitutional amendment to prohibit states from enacting same-sex marriage laws, while 41% support it. The survey also found that 64% oppose laws that would allow gay marriage in their states, while 30% support such laws.

A Gallup Poll this month found that 53% favor an amendment and 44% oppose it. People were most evenly divided over who should determine laws on gay marriage: 48% say the federal government should, and 46% would leave it to states.

Q: Aren't there state and federal laws forbidding gay marriage?

A: Congress and 38 states have passed "Defense of Marriage" acts that define marriage as the union between one man and one woman and that permit states to reject gay marriages from other states. But these laws may be challenged. Opponents of gay marriage fear these laws won't survive a challenge in the U.S. Supreme Court.

Q: Why would the Defense of Marriage laws be overturned?

A: Two clauses in the U.S. Constitution could be used to challenge state laws banning gay marriage. The so-called "contract clause" requires states to recognize legal contracts from other states. A gay-marriage license from Massachusetts, for example, would have to be considered a legal contract in, say, Louisiana.

The other constitutional challenge could come under the "full faith and credit" clause, which requires states to recognize similar laws in other states. This is why the word "marriage" is so important to both sides of the issue. If a state allows gay marriage, it opens up the marriage laws in other states to the full faith and credit clause.

Q: What reasons do gay-marriage advocates give for the need for same-sex marriage?

A: Gay couples want the same protections and rights given married couples. These include inheritance and property rights, medical coverage and decisions, child custody, insurance and divorce.

Civil unions offer most of those protections but are not transferable to other states. Texas, Connecticut and Georgia courts have turned down requests to grant divorces to same-sex couples who received civil unions in Vermont.

Also, state civil unions do not entitle gay couples to Social Security benefits and protection under federal pension laws. That means that no matter how long a gay couple is together or whether they have children, they are not automatically entitled to pension and death benefits when one partner retires or dies.

Q: Do any U.S. states recognize gay marriages?

A: No. The Massachusetts Supreme Judicial Court, the state's highest court, ruled in November that it was unconstitutional to deny marriage licenses to gay couples. The order takes effect May 17.

The Vermont Supreme Court issued a similar ruling in 1999, but it allowed the Legislature to establish civil unions, a legal equivalent of marriage for same-sex couples.

California has a domestic partnership registry that will extend many of the same rights of marriage to same-sex couples when it goes into effect next year.

Q: But didn't I see gay couples in San Francisco getting married?

A: More than 3,200 same-sex couples have been married in San Francisco since Feb. 12. State Attorney General Bill Lockyer says he will ask the California Supreme Court on Friday whether the city has violated state law by issuing the licenses. City officials have filed their own lawsuit with the state Supreme Court. They argue that the state's prohibition on same-sex marriage is unconstitutional.

Q: Isn't the Massachusetts Legislature considering its own constitutional amendment that would prohibit gay marriages?

A: Yes, but the Legislature has been unable to reach an agreement on the wording of an amendment. Even if it does, the rules to amend the state constitution set guidelines that would mean state voters must approve any amendment. Under that process, the earliest they could vote on an amendment would be November 2006. That means the state is likely to begin issuing marriage licenses to same-sex couples in May.

Q: Have other states amended their constitutions to ban same-sex marriage?

A: Hawaii, Alaska, Nebraska and Nevada have amended their constitutions. Several other states, including Ohio and New Hampshire, are considering amendments.

Q: What is the difference between gay marriage, civil unions and domestic partnerships?

A: It varies from state to state. Measures short of "marriage" are largely compromises that sidestep the legal implications of using the actual word. Civil unions in Vermont extend all the rights, responsibilities and protections of marriage to same-sex couples wed in that state. Those include issues of inheritance, medical coverage, child custody and divorce.

Q: What does Bush's endorsement of an amendment mean to states such as Massachusetts and California?

A: Nothing now. It takes years for a federal constitutional amendment to make its way through Congress and the state legislatures.