Some consider last week to have been a possible tipping point in the struggle over the definition of marriage in America. Gay advocates cheered Feb. 23 when the Obama Administration announced it would no longer go to court to defend the constitutionality of the Defense of Marriage Act. Though the decision did not immediately affect any part of American life except the way four cases — two in Massachusetts, one in New York and one in Connecticut — are being litigated, speculation about the long-term fallout is anybody’s guess. What is clear is that the president’s decision was rare and that it sent traditional marriage advocates scrambling for a response. Here are 10 areas of American life, or American institutions, where the struggle to define marriage is most notable.
In 2006, USA Today reported that gay spending was forecast to reach $641 billion, though many companies still feared a backlash if they advertised to gays. Gay spending rose to an estimated $743 billion in 2010 and now, many companies advertise directly to gays.
The 2010 GLAAD Media Awards in Advertising honored American Airlines, Progressive Insurance, K-Y Brand, Levi’s, Wells Fargo. Progressive’s ad campaign used the tagline, “To us, Progressive is more than just a name.”
On the other side, when Chick-Fil-A agreed last month to donate lunch to a marriage seminar sponsored by the Pennsylvania Family Institute in January, some gays organized a boycott of the restaurant chain, and gay students proposed that Chick-Fil-A be removed from college campuses.
Perception, goes the old saying, is reality.
On the big screen and on TV, gays have lobbied actively and effectively for acceptance for themselves and same-sex marriage. For example, a gay men’s website called afterelton.com has employed the tagline, “Because visibility matters.”
How much does it matter?
Writing for Catholic.net in a 2008 article, longtime film critic and pro-marriage proponent Michael Medved took a look back at a 1984 piece in a gay magazine that was titled, “Waging Peace: A Gay Battle Plan to Persuade Straight America.” Medved described the article as a strategy he broke down into three basic parts: One, desensitize and normalize. Two, emphasize gay victim status. Three, demonize defenders of the family.
“I would say,” Medved wrote, “Mission accomplished.”
The 1984 gay strategy piece included this statement: “The average American household watches over seven hours of television daily. Those hours open up a gateway into the private world of straights, through which a Trojan horse might be passed. As far as desensitization is concerned, the medium is the message of normalcy.”
The Gay & Lesbian Alliance Against Defamation (GLAAD) has tracked the visibility of gay characters on TV shows for 15 years. The study shows portrayals of gays accounted for 1.3 percent of all scripted-series regular characters in 2006 and then fell to 1.1 percent in 2007 before a series of sharp increases, to 2.6 percent in 2008, to 3 percent in 2009 and to 3.9 percent in the 2010-11 broadcast TV schedule. GLAAD described the increasing numbers as a sign of gay acceptance.
The group reported that ABC led all broadcast networks with gays representing 7.2 percent of regular characters in its 152 shows this year.
Obama’s decision on DOMA came 10 days after the New York Times published a house editorial — representing the position of the paper’s editorial board — that called DOMA “indefensible” and asked why Obama’s government lawyers at the Justice Department continued to defend it.
The editorial called on Obama to do just what he did 10 days later: Stop defending DOMA in court.
The Times’ first public editor, or ombudsman, Daniel Okrent, famously took the paper to task in 2004 not for one-sided editorials on gay rights, but for one-sided reporting in an essay titled, “Is the New York Times a Liberal Newspaper?”
He answered the titular question in his first line: “Of course it is,” then went on to write, “These are the social issues: gay rights, gun control, abortion and environmental regulation, among others. And if you think The Times plays it down the middle on any of them, you’ve been reading the paper with your eyes closed. ... On a topic (gay rights) that has produced one of the defining debates of our time, Times editors have failed to provide the three-dimensional perspective balanced journalism requires.”
A quick review of conservative web sites shows that many conservatives who support traditional marriage believe the news media is complicit in providing a sense that it is inevitable that same-sex marriage will become the norm across the nation even as the vast majority of states ban it.
The Boy Scouts of America is an iconic American institution that reached its 100th anniversary last year. Some have attempted to force the scouts to accept gay leaders and boys.
The U.S. Supreme Court ruled in 2000 that the Constitution gives the Boy Scouts of America, as a private group, the right to legally decide who can be a Scout leader.
Scouts remain a flashpoint in the debate over gay rights, however. News media outlets regularly run stories with criticism of the Boy Scout policy.
The campaign trail, such as it is now, has been mostly quiet on the DOMA announcement so far.
Potential 2012 GOP candidates Newt Gingrich, Mike Huckabee, Rep. Ron Paul, R-Texas and Rep. Michelle Bachman, R-Minn., criticized President Obama’s decision.
The relative quiet doesn’t mean DOMA, gay rights and same-sex marriage won’t become large issues in the presidential race, especially if House Republicans become involved in defending DOMA in court, if a court decision comes before the election and if more state legislatures pass related bills.
Some of the most-radicalized debate over gay marriage takes place around churches. On one side, gays complain that some Americans who profess faith-based beliefs against same-sex marriages exhibit bigotry and hate speech. On the other side, churches and their members have been targeted by some in the gay community who want to silence them on this issue.
Both sides have been in court, with gay groups seeking lists of those who gave money to traditional-marriage causes and backers of traditional marriage seeking to keep such lists private because of retribution they have experienced.
Many churches, including the LDS Church, insist the U.S. Constitution gives them the right to free exercise of their religion and to freedom of speech in the public square.
Elder Dallin H. Oaks, a former member of the Utah Supreme Court who now is a member of the Quorum of the Twelve of The Church of Jesus Christ of Latter-day Saints, said in a recent speech, “Along with many others, I see a serious threat to the freedom of religion in the current assertion of a ‘civil right’ of homosexuals to be free from religious preaching against their relationships. Religious leaders of various denominations affirm and preach that sexual relations should only occur between a man and a woman joined together in marriage. One would think that the preaching of such a doctrinal belief would be protected by the constitutional guarantee of the free exercise of religion, to say nothing of the guarantee of free speech.”
Black churches and Catholic clergy spoke out strongly against Obama’s decision to back out on the defense of DOMA.
The Jewish community is divided.
The definition of marriage is pretty simple when it comes to state legislatures: The vast majority consider marriage to be between one man and one woman.
A full 30 states have passed amendments to their constitutions to define marriage as between one man and one woman. Many others have a legal ban against same-sex marriages.
Five states — Connecticut, Iowa, Massachusetts, New Hampshire and Vermont — allow same-sex marriages, but they got there in various ways.
Connecticut’s Legislature passed a civil union law, but the state supreme court overturned it and created same-sex marriage in the state.
Iowa’s supreme court overturned a defense of marriage law passed by the Legislature.
Massachusetts also has same-sex marriage because of its state supreme court. The state Legislature has rebuffed efforts to pass a DOMA since.
Vermont was the first state to recognize same-sex marriage through legislative action. In 2009, the Legislature passed a gay marriage bill and then overturned the governor’s veto.
The New Hampshire Legislature passed a same-sex marriage bill in 2009 that went into effect in 2010.
Elsewhere, Maine voters overturned a same-sex marriage law in a referendum after the law was passed in 2009 by the Legislature and signed by the governor.
California allowed same-sex marriages for nearly five months in 2008 before voters passed Prop 8 to ban gay marriage in the state.
Some states have both traditional marriage amendments and allow civil unions. For example, on Feb. 23 in Hawaii, where the state constitution bans same-sex marriage, Gov. Neil Abercrombie, a Democrat, signed same-sex civil unions into law.
Utah’s state constitution bans not only same-sex marriage but also civil unions.
Multiple state legislatures are considering civil union or same-sex marriage bills.
Various courts have both upheld and struck down the constitutionality of DOMA and state laws defining marriage as between a man and a woman, but none of the cases has reached the U.S. Supreme Court. Yet.
Two DOMA cases pending in federal court motivated the president’s announcement. The Justice Department will now inform the two courts that it believes DOMA is unconstitutional.
One case is Windsor v. United States, being contested in New York. In that case, Edie Windsor and Thea Spyer lived together in New York City for 44 years. They married in Canada in 2007, and New York recognized the marriage. When Spyer died in 2009, Windsor received her inheritance but the federal government, under DOMA, didn’t recognize them as married. The estate was taxed $350,000 that wouldn’t have applied to a married couple.
Windsor seeks a refund of the estate tax.
The other case is Pedersen et al. v. Office of Personnel Management et al. In this action in Connecticut, five same-sex couples and a man whose same-sex partner has died petitioned for relief because their home state allowed them to marry, but under DOMA the federal government has refused them access to federal marriage-related benefits regarding family medical leave, pension plans, social security benefits and employment benefits for federal employees.
The U.S. Office of Personnel Management oversees 1.9 million federal employees. Its director, John Berry, an Obama appointee, is the highest-ranking openly gay official in history. Because of his position, in which he determines the benefits for federal employees, Berry has been named a defendant in some lawsuits filed by gays.
Before the cases even begin, it will be interesting to see how the courts react to the cues from the Justice Department and to requests from other parties, including Congress, to take up the defense of DOMA abdicated by the Justice Department.
The U.S. Senate passed the Federal Defense of Marriage Act in 1996 by a vote of 85-14, with Utah senators Orrin Hatch and Bob Bennett voting for passage. The U.S. House voted in favor, 342-67, and Utah representatives Enid Green, Jim Hansen and Bill Orton voted “yea.” President Clinton signed the bill into law.
Many see the Defense of Marriage Act (DOMA) as a critical tool maintaining the traditional definition of marriage. One section of the law bolsters states’ rights to not recognize same-sex marriages peformed in other states. But some believe the Constitution already offers stalwart protection for each state’s right to define marriage and that DOMA only prohibits the extension of federal benefits to same-sex couples.
Obama’s decision this week puts Congress right in the crosshairs of the debate. Bills are expected in the House and Senate seeking to repeal DOMA. Meanwhile, with Obama’s Justice Department bowing out of court defenses of the law, many expect Congressional conservatives to take up the torch and organize that defense. The Speaker of the House, John Boehner, announced late last week that he has asked a legal advisory group to prepare to defend DOMA in court, but nobody is sure what that will look like.
On Feb. 23, President Obama’s attorney general, Eric Holder, announced that he and the president had decided the Defense of Marriage Act (DOMA) is unconstitutional and that they and Justice Department would not uphold the traditional duty of the president to defend in court the laws made by Congress.
The next day, President Obama’s press secretary reiterated the president’s support for the repeal of DOMA, which was passed with bipartisan support in 1996 and signed by President Clinton. DOMA defines marriage for federal purposes as only between a man and a woman.
Traditional marriage supporters largely criticized Obama, first for not defending DOMA well in the courts in the first place, then for refusing to defend DOMA from now on. But a few voices felt Obama’s move will help protect DOMA. One was Robbie George, a Princeton professor and member of the Deseret News editorial advisory board, who felt the Obama administration had been sabotaging DOMA in court when it was supposed to be defending it. Another was Peter Wolfgang, executive director of the Family Institute of Connecticut, who told the Daily Beast “The Obama policy now is now much more honest...” and paves the way for his organization and others to defend DOMA in the case pending in Connecticut and elsewhere.