Since Election Day in 2004, on which 11 states, by wide margins, enacted constitutional bans on same-sex marriage, the gay community in the U.S. has felt decidedly on the defensive in the struggle for equality. According to the Human Rights Campaign, 38 states have explicit legislative bans on gay marriage, another three define marriage as the union of a man and a woman, and 18 states have imposed constitutional bars on marriage between two men or two women. Only one state of course, Massachusetts, has legal same-sex marriage, and the District of Columbia and four states, New York and New Jersey included, have no explicit legislative or constitutional impediments to gays marrying.
Despite the setbacks, the public education, legislative, and legal efforts to move toward marriage equality continue—by necessity, too often in a reactive fashion through expensive, energy-consuming efforts to guard against right-wing drives to further enshrine inequality in constitutions and public policy. Yet, there are also more affirmative efforts, with a marriage ruling due from the Washington State Supreme Court any day now, and cases working their way up the court systems in New York and New Jerseys, among other places, where victories at the highest courts are not out of the question.
In four jurisdictions worldwide this year, there were clear victories for gay marriage. Closest to home, Massachusetts marriage activists beat back an effort to have a constitutional amendment placed on the 2006 state ballot replacing same-sex marriage with civil unions. The Bay State still faces the risk of a setback—in the form of a different ballot question in 2008—but by then gay and lesbian couples will have been marrying there for four years.
In Canada, two years after the nation’s largest provinces moved toward marriage equality, the Liberal government of Prime Minister Paul Martin finally enacted a federal gay marriage statute. As Canada faces a national election in January, that advance is very much a part of the political debate.
In Spain, the Socialist government of José Luis Rodríguez Zapatero, swept into office in the wake of the former prime minister’s mishandling of the May 2004 terrorist attacks, made good on its promise to enact a gay marriage law—in a sharp rebuke to political muscle-flexing by Pope Benedict XVI in Rome. In South Africa, the Constitutional Court, that nation’s highest, ruled that the constitutional ban on government sexual orientation discrimination and its equality requirement meant that gay and lesbian couples must be allowed to marry. Parliament was given one year to conform South African law.
Important legal principles of equality—enunciated in a February New York City ruling since overturned on intermediate appeal, in Massachusetts, in numerous Canadian provinces, and in South Africa—establish no direct precedents for American and New York State courts. But that is not to say that they have no impact. As the highest courts in democracies around the world articulate similar theories based in a common principle of equal protection of the laws, it becomes harder and harder for judges to cling, with any degree of intellectual integrity, to outdated notions of what marriage means in civil society.
The victories in Massachusetts, Canada, Spain, and South Africa are milestones for all of us.