The gay marriage issue continues to stir controversy in the weeks since San Francisco Mayor Gavin Newsom began issuing marriage licenses to same-sex couples. In response, President Bush proposed a constitutional amendment that would ban gay marriage and ordered the Social Security Administration not to accept any marriage licenses from San Francisco in the last two weeks as proof of identification.
Gay couples say same-sex marriage is, first and foremost, a civil rights issue in their effort to enjoy all the legal protections traditional marriage provides. Opponents argue that gay marriage undermines a religious institution and threatens the traditional "nuclear" family. This has led to an ongoing debate and comparisons being made between the civil rights movement of the 1960s and today's gay rights movement.
Until the late 1960s, the idea of interracial marriage was as controversial and unpopular as the idea of same-sex marriage is now: in a majority of American states, it was a criminal offense. But in 1958, Mildred Loving, a white woman, and her husband Richard, who was black, were awakened and arrested in their home in Virginia in the middle of the night. They sued the state in a case that went to the U.S. Supreme Court. 1967s "Loving vs. Virginia" made history as the ruling that declared marriage to be "one of the basic civil rights of man, basic to our very existence and survival." Today, people are examining the case once again as supporters and opponents of same-sex marriage debate the constitutionality of denying individuals the right to marry because of their sexual orientation.
"Thirty or 35 years ago in the U.S., gay people were almost universally treated with, not just open hostility but hatred and oftentimes physical violence," said David Garrow, a legal historian and Supreme Court scholar at Emory College in Oxford, Georgia. He says he believes it will take changes in American public opinion to force changes in the laws regarding same-sex marriage.
"So as time goes by, it seems inescapable that the popular acceptance of gay relationships and gay marriages ids gfoing to increase further. As a historian I'm pretty conservative and pretty hesitant about making predictions - what would Martin Luther King have said about this if he were still alive? But I think it's a safe bet that 15, 20 years from now in this country, same-sex marriage will probably exist everywhere."
But can the struggle for gay rights really be compared to the decades-long struggle for racial equality? Reverend Jesse Jackson, speaking before Harvard's Business school this year called the comparison "a stretch," while Coretta Scott King, wife of slain civil rights leader Martin Luther King, Jr. said in 2000 "My husband understood that all forms of discrimination and persecution were unjust and unacceptable for a great society." But Reverend Talbert Swan, II, a conservative minister in Springfield, Massachusetts, says he "has concern with homosexuals drawing a comparison with the black civil rights movement" and believes they are confusing a "moral issue" with a constitutional one.
"When you talk about civil rights among blacks, you're not talking about just marriage," he said. "You're talking about the basic right to be treated like a human being. We're talking about employment, we're talking about housing, we're talking about access to education. We're talking about the right to be free, free to ride a bus or go and vote. It's just so many differences between what gays are trying to gain today and what black people have been trying to gain since they stepped foot in America."
Jasmyne Cannick, a board member and media spokesperson for the National Black Justice Coalition in New York City, a coalition of black, gay, lesbian, bisexual and transgender leaders from all over the country, says the civil rights movement of the 1960s isn't exactly the same as the struggle for gay rights. "One of the things that I think is very threatening, especially within the African-American community is the term, 'gay marriage.' Traditionally, African-Americans have been, are very religious and are fundamentalists and take the bible literally" she said.
But she says there are enough similarities to warrant a common goal of fighting for and enforcing basic laws against discrimination. "No two groups experience prejudice exactly the same way," she said. "Women and blacks are not the same either, but our laws still protect women from discrimination. For me it doesn't matter if these two groups are identically oppressed, it matters that no group is oppressed."
Thirty-eight states currently prohibit same-sex marriage. But some city mayors are challenging those bans. On March 3, the city of Portland, Oregon became the third municipality to start issuing marriage licenses to same-sex couples, following the leads of San Francisco, California and New Paltz, New York. Other states support the idea of civil unions, which offer couples most but not all of the legal protections of marriage. Massachusetts Reverend Talbert Swan says he believes civil unions provide gay couples with a way to enjoy the same legal protections as heterosexual married couples.
"You can set up individuals to be executors of states, you can give power of attorney, you can enlist people as beneficiaries on health insurance policies and life insurance policies without there being necessarily any particular laws that have to be passed in order to make that happen," he said.
Jasmyne Cannick of the National Black Justice Coalition says that's not good enough. "Civil unions are not recognized from state to state. Unlike marriage rights, civil unions. I could get married in California and my partner and I would decide to move to New York and our union would not even be recognized," he said.
Legal historian David Garrow agrees that the inconsistency of states to recognize civil unions is the greatest problem for couples without a marriage license. "That is exactly where the litigation explosion all across the country is going to come. And in federal constitutional terms, what's going to happen in most sorts of cases is really almost completely new and unexplored untested legal ground," he said.
The prospect of broadening the definition of marriage, a tradition that is part of a foundation of modern society, will continue to spark both emotional and legal debate. And with President Bush proposing a constitutional amendment to ban gay marriage, the issue promises to figure in this year's U.S. presidential campaign, as well.