Washington Week: Student Voices (O)

Column: Prop 8 and the transformative problem of gay marriage
By Diana Nielsen
Daily Northwestern, Northwestern U.
May 26, 2009

As this paper goes to print, the California Supreme Court will be in its final hours leading up to the announcement of its decision whether or not it will overturn Proposition 8. The bill, passed during the November elections, prohibits gay couples from marrying under California law. The case under consideration at present - filed by gay couples and local governments - alleges that Proposition 8 was passed illegally.

They assert that since the prohibition of gay marriage takes away the fundamental rights of a particular group of people, it should be treated as a constitution revision rather than an amendment. Under California law, revisions are considered more serious and require that in order to pass, it must garner more than the majority vote earned by Proposition 8. That same-sex marriage, which a decade ago was considered a special-interest issue or one reserved for the most liberal democrats, is now not only a mainstream political issue but also that an increasing amount of people consider same sex-marriage a fundamental right is a testament to how far the struggle for equal marriage rights has come.

The fight that began as an ideological debate to decide whether marriage should be retained in its original form, between a man and a woman, will fittingly now be decided based on whether or not proper legal procedure was followed and the constitutionality of such bills. At the very least, our legal system seems to have overcome its tendency to view same-sex civil marriage as a 'special right' and to conflate the religious rite of marriage with civil marriage. That isn't to say that all courts will agree that civil marriage should be available to all people, but rather that same-sex marriage is an issue increasingly fought on grounds of procedure and political strategizing rather than combating blatant homophobia.

Though Vermont and Iowa have recently passed bills that grant same-sex couples the right to marry, the recent failure of a bill in New Hampshire shows that this political struggle is not yet over.

Certainly the fight for same-sex marriage has gained substantial ground since it first became a topic of the national political consciousness. In 1993, the Hawaiian court found that there must be a compelling reason found in the state constitution to deny gay couples the right to marry. Shortly thereafter, Congress pushed through the Defense of Marriage Act in 1996 explicitly denying same-sex couples rights traditionally conferred on married couples.

This decision led individual states to consider their own positions on civil unions, domestic partnerships, and their general positions on granting marriage-like benefits to same-sex couples. Moreover, the law catapulted the contentious issue of same-sex marriage into the national consciousness.

In 2003 the Massachusetts State Supreme Court ruled that gays should be granted equal marriage rights without much of a fuss - despite the significance of the precedent this would set.

Following this decision, 13 states passed laws prohibiting same-sex couples from marrying.

Nonetheless, in November of 2008, Connecticut expanded its previously existing law, which allowed same-sex couples to enter into civil unions, to include the right to marry. Since then, Iowa, Maine, and Vermont have followed suit in adopting similar bills.

Policy makers in New Hampshire have commented that the recently failed bill, which would have allowed same-sex couples to marry, had been approved by Gov. Lynch in previous versions. The governor subsequently made additions to the bill, which the state legislature objected to.

So, regardless of the decision that comes from the California Supreme Court today, it's important to remember the progress that has been made. In the last decade the problem of gay marriage has transformed from being seen as an ideological issue to one of human and political rights.

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