Diverse Panel Leads Discussion on Same Sex Marriage in the U.S.

Author: Woodrow Wilson School of Public and International Affairs
Publication: Woodrow Wilson School of Public and International Affairs
Publication Date: March 21st, 2011

On February 17, the Woodrow Wilson School brought together a historian, a leading NGO advocate, a lawyer, and a Catholic priest for a student-generated panel discussion titled, "Same Sex Marriage in the United States: Where We Are As A Nation."
PJ Berg, a graduate student at the WWS who initiated the idea for the topical discussion with WWS’ Assistant Dean of Graduate Education Karen McGuinness, told the audience in his introductions of the panel that “as aspiring policy makers, we felt it was important to get a better understanding of these issues and their policy ramifications outside of what we read in the New York Times.”

With that context Professor Hendrik Hartog, the Class of 1921 Bicentennial Professor in the History of American Law and Liberty and Director of the Program in American Studies at Princeton, who served as moderator, laid the foundation for the discussion by giving a historical perspective of marriage in the United States, and the changing dynamic underway in the court of public opinion that is influencing the decisions of the courts and state legislatures on the same sex marriage question.

Hartog also spoke of the ebbs and flows of optimism that he has seen in the past seven years and the policy implications that were to be discussed by the panel. “The fact that change depends so often on judicial decision and on novel interpretations of obscure and sometimes forgotten provisions in state constitutions, remains both unsettled and controversial, Hartog disclosed. “Yet political habits and the political culture are changing quite dramatically. There seems to be a massive generational shift, with younger people and among various religious communities, who are caring less or not at all about sustaining the heterosexual monopoly over marriage.”

With that introduction, Hartog turned the discussion over to Sean Eldridge, who serves as the Political Director for the same sex marriage advocacy group “Freedom to Marry.” Eldridge opened his remarks by talking about the state of the same sex marriage movement since Barack Obama became president. In the beginning of 2009 only two states – Connecticut and Massachusetts – had legalized gay marriage laws on the books. Yet during that year, the number of states legalizing gay marriage either through legislation or court actions increased three-fold with New Hampshire, Vermont, Iowa, and the District of Columbia allowing same sex couples to marry.

“This provided tremendous momentum for 2010,” said Eldridge, momentum which was reinforced by two national polls that showed nationwide majority support for the legalization of same sex marriages, and additional positive actions by courts in California, Massachusetts, and the District of Columbia.

Entering 2011 and a changing environment, Eldridge announced his organization has launched a “Why Marriage Matters” campaign. At its roots is Freedom to Marry’s “roadmap to victory” effort which will provide resources towards winning more states; growing the percentage of majority supporters for same sex marriage, and ending federal marriage discrimination. 
Attorney and Columbia faculty member, Suzanne Goldberg, who directs Columbia University’s Sexuality and Gender Law Clinic, briefly outlined the history of advocacy for same sex marriage rights over the past 40 years, noting that while the first challenge to these laws was almost 40 years ago, many of the arguments used by both the defendants and the courts today are as similar to those used in the 1970s.

Specifically, Goldberg talked about the two legal arguments based on both the US Constitution and various state laws. First, there is the “privacy clause” of the US Constitution. While the Constitution does not specifically mention privacy, it is a concept based on the Constitution’s Due Process Clause that has been used to protect intimate acts and relationships. Under the Due Process Clause, the government must have a compelling justification to limit rights if a fundamental right is at stake. Past cases have found the freedom to marry to be such a fundamental right.

 Second, there is the equal protection guarantee, which is explicitly stated in both the US Constitution and many state Constitutions. Goldberg laid out the argument for same sex marriage based on this Constitutional provision: whenever a state “draws a line” and puts one group of people on one side of the line and one on the other, it has to have either a rational basis or a “compelling justification” to do so, based on the class of people being discriminated against. In her opinion, “there is no legitimate reason by the government to separate same sex couples and heterosexual couples.” Goldberg believes that there will be more challenges to the laws brought to the courts in the near term with growing popular sentiment on the side of overturning those laws banning same sex marriage.

Father Joseph Palacios is a sociologist and Adjunct Professor at Georgetown University who in 2010 founded “Catholics for Equality” to support, educate, and mobilize Catholics on issues relating to freedom and equality for the LGBT community.

Palacios talked of members of the Catholic faith who are perceived to be members of the “moveable middle” in the same sex marriage debate – those who could help increase the percentage of Americans who support full marriage equality. Using survey data, he pointed to two key groups he felt should be targeted as part of this “moveable middle,” – Catholic youth in the age range of 18-29, who are not likely to vote, but are supporters of same sex marriage, and the Latino Catholic population in the United States, where his polling data indicated that 57% of Latino Catholics are for full rights for gays in marriage.

Father Palacios also said that he believes that marriage equality should be framed as a “pro-life” issue for Catholics. This he believes is a social justice issue that goes to the heart of the Catholic religion in “caring for the whole person.” One should look at pro-life as being pro-gay, pro-family, and pro-child – including prevention of suicide among gay youth, HIV and AIDS, school bullying, and drug and alcohol addiction. His group is working to incorporate these issues into the debate for the “moveable middle.”

Since the WWS discussion on February 17, the Maryland State Senate has approved same-sex marriage legislation, where the measure now goes to that states’ House of Delegates, and the Obama Administration has directed the Department of Justice to stop defending the 1996 Defense of Marriage Act (DOMA) against lawsuits challenging it as unconstitutional. And in Hawaii, the Governor signed same-sex civil unions legislation into law, while not constituting marriage could also be subject to a court challenge in the future on the equal protections clause.