By an act of the state legislature late Friday evening, New York joined several other states in the United States in legalizing same-sex marriage; currently, Massachusetts, Connecticut, Vermont, New Hampshire, and Iowa, as well as the District of Columbia.
California and Maine had legal same-sex marriage for a limited time. As detailed in IntLawGrrls posts available here, California's Proposition 8 limiting marriage to opposite sex couples was declared unconstitutional by a federal judge, but that ruling was stayed and the case is presently on appeal.
Although in the United States marriage is within the province of state rather than federal law, the federal Defense of Marriage Act, passed in 1996, continues to define marriage as limited to opposite sex couples. DOMA is under serious challenge in the courts, including bankruptcy courts, and in the Obama Administration, which stated earlier this year it will not defend DOMA in court. Nevertheless, same-sex couples in New York who marry will not be married under federal law -- a confusing situation when it comes to immigration, taxes, and federal benefits such as Social Security.
“Marriage Equality,” as the New York statute is entitled, has been a hard fought battle.
New York’s highest court held that there was no state constitutional right to same-sex marriage in Hernandez v. Robles (2006), an opinion stunning in its contortions, as Seattle University Law Professor John Mitchell’s article demonstrates. The New York state Senate failed to pass a law in 2009, despite support of the bill from the then-Governor.
The new Marriage Equality statute has religious exemptions, which were also hard-fought, and several otherwise conservative state senators who voted for the bill specifically referenced the “protections” for religious entities contained in the law, and absent from the previous bill. These exemptions, however, reference solemnization and celebration rather than the status of marriage. In other words, the law articulates protections for religious officials should they decline to perform a same-sex marriage. Given the broad protections for religious officials to decline to perform any sort of marriage (or officiate at funerals for that matter), most speculate that this provision is more cosmetic than substantive.
There has been much jubilation amongst LGBT supporters in New York, especially because the bill - - - quickly signed into law by New York Governor Andrew Cuomo -- came only a few days before the LGBT Pride celebrations of June 26-27, which mark the anniversary of the Stonewall Riots in 1969. Indeed, on the evening that the law was passed, the Stonewall Inn in New York City was crowded.
Even LGBT people who do not support the institution of marriage, same-sex or otherwise, found themselves in a celebratory mood. Phrased as “equality,” support for same-sex marriage has become co-extensive with LGBT rights. Moreover, rhetoric against same-sex marriage, in the legislature and elsewhere, is often demeaning and at times virulently homophobic.
Yet critiques of same-sex marriage need not be conservative.
I’ve wondered whether marriage will now become essentially mandatory. Adapting Adrienne Rich’s critique of “compulsory heterosexuality,” I've argued that "compulsory matrimony" could be just as damaging. Contemplating the passing of the New York law, Columbia Law Professor Katherine Franke voiced similar worries:
'[W]e shouldn’t be forced to marry to keep the benefits we now have, to earn and keep the respect of our friends and family, and to be seen as good citizens.'
Indeed, some of the valorization of marriage is politically problematical. It is deeply troubling to read arguments in favor of same-sex marriage that rest upon marriage as indicating “maturity” or making an “honest woman” out of a woman who was merely “living with” a partner. Does that mean people who live together -- or alone -- are somehow immature or dishonest? Certainly, we can’t be saying that about LGBT people, especially women.
In the United States, “marriage” is freighted with a great deal of religious, social, and political meanings. It’s also, of course, an economic relationship. And it may be a boon to the local economy, with New York same-sex couples no longer having weddings -- and receptions -- in the neighboring states of Connecticut, Massachusetts, and Vermont.