Gay Marriage Bans Reflect Desire for Security in Unstable Times; Domestic Benefits Prohibition May be Challenged, Duke Professors Say

The resounding rejection of gay marriage by voters in 11 states Tuesday is, in part, a reflection of the vulnerability that many Americans continue to feel since Sept. 11, 2001, says a Duke University expert on U.S. legal history and social protest.

"This is a time of political instability. People feel vulnerable because of terrorism," said Felicia Kornbluh, a Duke history professor who teaches a course on the law and American society. "There's a deep desire for security -- and that is reflected in people's attitudes toward marriage and government."

Meanwhile, two Duke law professors say the denial of domestic partnership benefits in the Georgia and Ohio bills are much easier to attack constitutionally than are the bans on gay marriage.

"I would be pretty surprised to find courts saying there's a constitutional right of same gender couples to marry, but it wouldn't surprise me at all if the denial of domestic partners benefits was held to be in violation of the 14th Amendment," said William Reppy Jr., the Charles L. B. Lowndes Emeritus Professor of Law at Duke Law School.

Kornbluh said Tuesday's vote against gay issues was reminiscent of the response in the U.S. to global Cold War and the threat of nuclear bombs after World War II. That period ushered in an age of neo-domesticity, she said. Marriage and fertility rates had been falling -- and divorce rates rising -- in prior years. But perceived threats from abroad prompted an idealized view of marriage and childrearing after 1945.

"Marriage has always been a political institution and been politically defined," Kornbluh said. "When people think of marriage, they're also thinking about their government, and vice versa.

"It's about defining who is in and who is out in the distribution of public and private benefits. What we're really talking about is defining who receives social benefits, such as health care, pensions or visitation in the hospital."

The often huge margins approving anti-gay marriage amendments in Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Oklahoma, Ohio, Utah and Oregon "represent a high point of anti-gay sentiment in America," Kornbluh said.

"The history of other civil rights struggles tells us that we're quite likely to recede from this point," she added. "I don't think it is an end to this issue."

Constitutional law expert Erwin Chemerinsky also expects this issue to live on.

"I think that the prohibition of domestic partner benefits can be challenged on constitutional grounds," said Chemerinsky, the Alston & Bird Professor of Law at Duke. "In 1996, in Romer v. Evans, the Supreme Court declared unconstitutional a Colorado initiative that repealed all laws in the state, and prohibited the enactment of any new laws, protecting gays and lesbians from discrimination. The Supreme Court said that it was impermissible to keep gays and lesbians from being able to use the political process in the way all other groups can. The Court said that the law was based on animus against gays and lesbians.

"The same can be said for initiatives that prohibit benefits for domestic partners."

Reppy agrees with Chemerinsky.

"Marriage as between a man and a woman has a history about as long as any other rule of law. You are able to make the argument that when the constitution was passed originally, and when the 14th Amendment -- the equal protection clause --became part of our constitution in 1868, that's the way it was. The ratifiers couldn't have intended to allow people of the same gender to marry.

"But none of these arguments apply to domestic partners. The employment practice then just wasn't like it is now, with a lot of side benefits. There was no tradition [of domestic partnerships] -- it just wasn't thought about. Companies and [governments] now have a pretty long tradition of expanding domestic partner benefits to attract good employees."

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