Speaking Up for Marriage

In a weekly radio address in 2004, President George W. Bush said: courts create their own arbitrary definition of marriage as a mere legal contract and cut marriage off from its cultural, religious, and natural roots, then the meaning of marriage is lost and the institution is weakened. (1) Although fewer and fewer politicians are willing to speak up so forthrightly for the traditional understanding of marriage, President Bush was right to do so. Ultimately, his steadfast defense of marriage as the union of a man and a woman may be among the Administration's most important contributions. I. MARRIAGE IN 2000 The legal definition of marriage became an issue for President Bush even before his election. (2) On the ballot for the March 2000 election in California was Proposition 22, a citizen initiative to add to California's Family Code a provision stating, Only marriage between a man and a woman is valid or recognized in California. (3) As the issue gained national prominence, the legal definition of marriage arose in debates and commentary during the 2000 presidential campaign. (4) Although the first lawsuit challenging a state's definition of marriage as the union of a man and a woman had been raised decades before, resulting in a United States Supreme Court decision (5) the issue assumed truly national stature in 1993. That year, the Hawaii Supreme Court issued a plurality opinion narrowly deciding that the state's marriage law was presumptively unconstitutional as a form of sex discrimination. (6) The court remanded the case to the circuit court for a hearing on whether the state had a compelling interest in maintaining its marriage law. The circuit court, predictably, found that it did not. (7) The passage of a state constitutional amendment, however, rendered the decision moot and reserved to the legislature the ability to define marriage as the union of a man and a woman. (8) But before the amendment passed, the Hawaii courts' decisions raised a major national issue: If Hawaii began to issue marriage licenses to same-sex couples, would other states be obligated to recognize these marriages? This question spawned a wave of law journal articles arguing in the affirmative, (9) a series of state laws (thirty-seven in total) enacted to prevent such a result, (10) and ultimately the federal Defense of Marriage Act (DOMA). (11) Overwhelming margins in both the House (342 to 67) and the Senate (84 to 14) approved the Act, and President Bill Clinton signed it into law on September 21, 1996. (12) DOMA defined marriage for federal purposes as the union of a man and a woman and asserted Congress's authority to give parameters to the Constitution's Full Faith and Credit Clause by allowing states to refuse to recognize same-sex marriages contracted in other states. (13) In the wake of DOMA, activist groups in New England sued to invalidate Vermont's marriage law. The Vermont Supreme Court ultimately decided the case in 1999. (14) Although the court rejected the plaintiffs' invitation to redefine marriage, it did interpret the Vermont Constitution as requiring the state to extend the benefits of marriage to same-sex couples. (15) In response, the Vermont legislature created a legal status, union, for same-sex couples. Now, wherever the state statutes referred to marriage or spouses, the statutes would include partners in a civil union. (16) II. MARRIAGE 2001-2008 A few months after President Bush's inauguration, the group responsible for the Vermont litigation launched a carefully planned marriage lawsuit in Massachusetts, Goodridge v. Department of Public Health. (17) Although the plaintiffs failed at the trial court level in 2003 the Massachusetts Supreme Judicial Court ruled 4-3 that the Massachusetts Constitution mandated a redefinition of marriage. (18) Coming on the heels of, and generously citing, Lawrence v. Texas, (19) the United States Supreme Court's ruling invalidating state sodomy laws, the Goodridge litigation dramatically returned same-sex marriage to the national stage. …