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Formal Recognition of Gay and Lesbian Relationships

By Mark Johnson

Perhaps no social issue has impassioned more sustained debate among Americans in the last decade than the question of marriage rights for same-sex couples. Gay couples sought such protections for their relationships as early as 1971, Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810 (1972), but the issue did not really impinge on the public consciousness until some 20 years later. In 1993, the Hawaii Supreme Court decided in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), that denying the right of marriage to same-sex couples amounted to sex discrimination. On remand, the trial court rejected the state's attempt to show a compelling state interest and held the marriage statute unconstitutional. The Hawaii Supreme Court affirmed. Baehr v. Miike, 1996 WL 694235 (Haw. Cir. Ct. 1996), aff'd, 950 P.2d 1234 (Haw. 1997).

Although an amendment to the Hawaii constitution later superseded the Baehr holding, the Rubicon was crossed. Congress enacted the Defense of Marriage Act (DOMA), 110 Stat. 2419 (1996), which limited federal recognition of marriage to opposite-sex couples, and further provided that no state need recognize 'a relationship between persons of the same sex that is treated as a marriage' by any other state. Thus began a complex patchwork of relationship recognition policies undertaken by each of the individual states and territories in the United States. The result for a family headed by a gay or lesbian couple is that the family members' legal relationships remain constantly in flux, changing according to their state of residence, the law of each state or territory to which they may travel, and whether the particular rights in question find their source in state or federal law.

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