By Tom Curry National affairs writer
updated 7/14/2004 1:54:10 PM ET 2004-07-14T17:54:10

The Senate this week failed to advance a proposed constitutional amendment that says, "Marriage in the United States shall consist only of the union of a man and a woman." The status of marriage has become a major issue in this year's presidential and congressional races.

Here is a guide to the current controversy.

Q. Where are marriages between gay couples legal?
They are legal in Massachusetts where they became legal as of May 17, when a ruling by the Supreme Judicial Court of Massachusetts took effect.

A four-judge majority of that court ruled last November that under the state constitution’s guarantee of equal treatment of citizens, the state could not deny the protections of civil marriage to two people of the same sex who wished to marry.

The four judges struck down the state's marriage law because, they said, it was a form of "invidious" discrimination and "deprives individuals of access to an institution of fundamental legal, personal, and social significance — the institution of marriage — because of a single trait...sexual orientation."

In a followup ruling the court made it clear that it would accept only marriage and not civil unions as sufficient to meet its reading of the state constitution.

Those two rulings spurred state lawmakers to act. On March 29, the legislature voted to ban same-sex marriages, but to allow civil unions with most of the benefits of marriage instead.

The measure needs to win approval from the 2005-2006 legislature before going to the voters as a ballot question in 2006.

Q. Can same-sex couples from other states go to Massachusetts and get married there?
Some have already done so, but state law prevents out-of-state residents from getting married in Massachusetts if they are not eligible for marriage in their home state. And in no other state but Massachusetts is same-sex marriage legal.

Same-sex couples from outside Massachusetts filed suit in June to seek to have the Massachusetts limit on out-of-staters declared unconstitutional.

Q. Must marriages between gays and lesbians that are performed in one state, be recognized as valid if the same-sex couple moves to another state, where such marriages are illegal?
There is no definitive answer to this yet.

Yale Law School Professor Lea Brilmayer, an expert on the conflict between laws of different states, testified in March to a Senate Judiciary Committee panel that more than 100 years of precedents show that states have in some cases refused to recognize marriages performed in other states, if those marriages were deemed to violate local public policy.

The "public policy" doctrine, she said, "frees a state from having to recognize decisions by other states that offend deeply held local values."

For example, she cited cases in which states refused to recognize out-of-state marriages between cousins, between uncles and nieces, between two women and one man, and even between a man and a woman who had been married within one year of one of them getting a divorce.

The 1996 Defense of Marriage Act (DOMA) says no state shall be required to give legal recognition to any same-sex marriage performed in another state.

It also says that for the purposes of interpreting federal law, including the rules on who can receive benefits under federal programs, “the word `marriage' means only a legal union between one man and one woman as husband and wife.”

Q. What prompted the Congress to pass DOMA?
A state court in Hawaii was considering a lawsuit by same-sex couples who had been denied marriage licenses. Hawaii's Supreme Court had ruled in 1993 that denial of marriage licenses to same-sex couples was impermissible discrimination unless there was a compelling state interest to deny them.

In 1998 Hawaii amended its constitution to ban same-sex marriages.

Q. Will gay rights activists seek to have DOMA overturned?
Some gay rights activists and legal scholars have indicated they will take steps to challenge the constitutionality of DOMA.

Professor William Eskridge of Yale Law School said last year, “DOMA’s unconstitutionality is an enterprise that we’ve got to work on state by state ... by having state laboratories that produce data and evidence which suggest that when marriages are recognized, God did not send the locusts.”

Q. What indication has the U.S. Supreme Court given that it might decide that marriage between homosexuals is a right protected by the U.S. Constitution?
In their ruling last June in Lawrence vs. Texas, a five-justice majority of the court struck down state anti-sodomy laws, deeming them a violation of the Due Process Clause of the Fourteenth Amendment.

The language of the decision implied that the liberty protected by the Due Process Clause included the liberty for gay couples to get married.

Although the question of marriage itself was not squarely before the court, the majority opinion, written by Justice Anthony Kennedy, said, “Our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education."

The Constitution, Kennedy added, demands respect “for the autonomy of the person in making these choices.” Then he added, “Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”

Q. What constitutional amendment has been proposed to address this issue?
Sen. Wayne Allard, R-Colo., along with 18 co-sponsors, offered a constitutional amendment that said: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman."

Q. Would the Allard amendment permit states to recognize same-sex civil unions which gave some of the benefits of marriage?
Its proponents, such as Senate Majority Leader Bill Frist, R-Tenn., say the Allard amendment would permit civil unions; its opponents, such as Sen. Ted Kennedy, D-Mass., say it would not. Ultimately federal judges might have to decide this, if the amendment ever become part of the Constitution. But a procedural vote to keep it alive in the Senate failed Wednesday. It appears to be dead for the current term but could resurface nexty year.

Q. What are the possible outcomes of this battle?
If the Supreme Court ruled same-sex marriage is a fundamental constitutional right, then same-sex marriage would be legal in every state, despite what any state law or state constitution said on the matter.

But if, on the other hand, Congress and the state legislatures passed and ratified the Allard amendment, then same-sex marriage would not be legal anywhere in the United States, despite what the Supreme Court, state courts or state law might have previously said.

Another possibility is that the Supreme Court could decide there is no constitutional right for same-sex couples to marry, allowing states to refuse to recognize same-sex marriages performed in other states.

Q. Where do the two major presidential candidates stand?
Democrat Sen. John Kerry of Massachusetts voted against DOMA in 1996, saying “this bill is not necessary. No State has adopted same-sex marriage.... It is fundamentally unconstitutional...."

But in February Kerry said, "I was incorrect in that statement. I think, in fact, that no state has to recognize something that is against their public policy." And he indicated he did not think there was enough support in Congress to repeal DOMA.

Kerry also supports an amendment to the Massachusetts constitution that would ban same-sex marriages but permit civil unions with some of the benefits of marriage.

President Bush supports the Allard amendment or a similar amendment. "Changing the definition of traditional marriage will undermine the family structure," he said last week. "When judges insist on imposing their arbitrary will on the people, the only alternative left to the people is an amendment to the Constitution."

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