fresh politicization of gay marriage

The question of whether a pair of homosexual adults ought to be able to enter a federally recognized marriage has been under debate for twenty years or so. Hawaii appears to have forced the issue in the early 90s with the interesting case of Baehr v. Miike. The Hawaii Supreme Court remanded a trial court dismissal of a suit alleging Hawaii’s ban on same-sex marriages was illegal. The Court found in 1993 that, because the ban was discriminatory based on sex, it was subject to “strict scrutiny” and hence the burden of proof that the law was sound rested with the state “by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights.” This led to a remarkably childish legislative and judicial back-and-forth which culminated in the People of Hawaii enacting, by a vote greater than two thirds, a constitutional ban in 1998.

At around the same time there had also been federal wrangling over the legal status of homosexuals. Bill Clinton campaigned in 1992 on ending fifty years of refusing to allow gays in the military, which was derailed in part by then-Joint Chiefs Chairman Colin Powell, leaving us with the widely reviled Don’t Ask, Don’t Tell (DADT) policy. In 1996, Congress enacted the dubious Defense of Marriage Act (DOMA), which federally codified marriage as being only between a single heterosexual couple on fears that the US would be forced to recognize Hawaiian gay marriages due to the Full Faith and Credit clause in its Constitution. Many states followed suit in the intervening years; at present, 42 states ban gay marriage, 31 of them through Constitutional provision.

Continue reading