Vol. 74/No. 35      September 20, 2010

Five states and the District of Columbia now allow same-sex marriages. Thirty-nine states have laws that prohibit them.

At the federal level, the Defense of Marriage Act, signed into law by William Clinton in 1996, defines marriage as a union of a man and a woman. In July, a federal judge in Massachusetts ruled that this law is unconstitutional. The federal government has not indicated whether it will appeal.

A recent CNN poll found that a majority of U.S. residents support same-sex marriage by a narrow margin.

On August 4 Federal District Court Judge Vaughn Walker struck down Proposition 8, California’s law banning gay marriage. The measure was adopted by referendum in 2008, winning by a slim 52 percent margin. It reads, “Only marriage between a man and a woman is valid or recognized in California.” Two couples challenged Proposition 8 because it violates their rights by barring them from marrying.

“For me this decision means equal protection under the law. It means equal opportunity to marry the person that I love,” said Sandra Stier, one of the four plaintiffs.

The ruling is the first in a federal court to declare that a state law banning same-sex marriage is illegal on constitutional grounds. Walker cited the due process clause of the 14th Amendment—no state shall “deprive any person of life, liberty, or property, without due process of law”—and the amendment’s equal protection clause—which says no state shall “deny to any person within its jurisdiction the equal protection of the laws.”

Despite the ruling, gay couples are still being blocked from marrying in California by decision of a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit. No same-sex marriages can take place during the appeal of this decision, the judges ruled.

Walker said his decision in the case was affected by changes in U.S. marriage laws over the past century and a half. These are connected to the struggles of African Americans and women for equal treatment. African slaves, Walker noted, were considered someone’s property and thus had no legal right to marry. Many U.S. states had laws barring people of two different races from marrying. These were finally ruled unconstitutional in 1967.

“Marriage between a man and a woman was traditionally organized based on presumptions of a division of labor along gender lines,” Walker wrote in his decision. “Women were seen as suited to raise children and men were seen as suited to provide for the family.” No-fault divorce has further broken down these distinctions, Walker said.

At the trial the defenders of Proposition 8 argued that the state has an interest in promoting marriages that can lead to the birth of children and that these children will have a more “stable” life if raised by their biological parents.

Witnesses called by the plaintiffs argued that there is no evidence that having two parents of the same sex is harmful to children.

Witnesses for both sides argued that the state has an interest in strengthening the family and marriage. The main witness in favor of Proposition 8, David Blankenhorn, founder of the Institute for American Values, said that making gay marriage legal would weaken marriage as an institution, increase the numbers of unmarried people living together, and raise the divorce rate.

One of the witnesses for the plaintiffs, marriage historian Nancy Cott, argued that same-sex marriage would provide “another resource for stability and social order.” She said that in place of men being the main providers, couples now “join in an economic partnership and support one another and any dependents.” She argued that gay marriage was a good thing in part because it meant assigning more individuals “to care for one another,” thus helping to limit “the public’s liability to care for the vulnerable.”

Cott’s line of argument echoes support for the anti-working-class course of the ruling class, which in the name of “family values” is cutting social services while seeking to put the blame on single mothers and working people for the capitalist economic crisis.
 
 
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