Gay Marriage: In States, A Hodgepodge Lies Ahead
The Supreme Court’s landmark rulings on same-sex marriage have energized activists and politicians on both sides of the debate. Efforts to impose bans, and to repeal them, have taken on new intensity, as have lawsuits by gays demanding the right to marry.
The court, in two 5-4 decisions Wednesday, opened the way for California to become the 13th state to legalize gay marriage, and it directed the federal government to recognize legally married same-sex couples. A federal appeals court on Friday lifted its freeze on same-sex marriages in California, saying the state is required to issue licenses to gay couples starting immediately.
But the rulings, while hailed by gay-rights activists, did not declare a nationwide right for gays to marry. Instead, they set the stage for state-by-state battles over one of America’s most contentious social issues. Already, some of those battles are heating up.
In Pennsylvania, the only Northeast state that doesn’t legally recognize same-sex couples, gay state Rep. Brian Sims, a Philadelphia Democrat, says he will introduce a bill to allow same-sex marriages. The bill may flounder in the GOP-led Legislature, but the issue is likely to be volatile in next year’s gubernatorial race, pitting GOP Gov. Tom Corbett, an opponent of gay marriage, against any of three Democrats who favor it.
In Arizona, gay-rights supporters have begun circulating petitions aimed at repealing the state’s 2008 ban on same-sex marriage by way of a ballot measure next year. With California’s ban quashed, Arizona is now among 29 states with constitutional amendments that limit marriage to one-man, one-woman unions.
Gay-rights activists and Democratic politicians in several other states also hope to repeal the bans in their states - in Oregon, Ohio and Arkansas with possible ballot measures next year, and in Nevada and Michigan with referendums in 2016.
Ohio activist Ian James of FreedomOhio said his group’s resolve to collect signatures "has been doubled" as a result of the Supreme Court decisions. And Oregon Gov. John Kitzhaber, a Democrat who favors repealing his state’s ban, said the court action "underscores the urgency of extending the freedom to marry to all our citizens."
"Oregon has not yet lived up to the ideal of equal rights for all," Kitzhaber said.
In Indiana and West Virginia, some Republican politicians want to move in the other direction, joining the ranks of states with constitutional bans. Both states have laws that bar gays from marrying, but constitutional amendments are viewed as more durable measures that resist being overturned by litigation.
The leaders of Indiana’s Republican-controlled Legislature had deferred action on an amendment during this year’s session, opting to wait for the Supreme Court rulings. Now, with the backing of GOP Gov. Mike Pence, they say the Legislature will consider the ban in the session starting in January, possibly putting the question to voters later next year.
Micah Clark, executive director of the conservative American Family Association of Indiana, was pleased by that prospect.
"The future of marriage matters," he said. "And it belongs in the hands of Hoosier voters, not the courts, not Hollywood, and not the activists seeking to change it from what it is and always has been."
West Virginia, like Indiana, has a state law prohibiting gay marriages. Until now, though, it has not joined the parade of states taking a further step with a constitutional amendment. After the Supreme Court rulings, the leader of the large Republican minority in the House of Delegates suggested there is now an urgent need for an amendment,
"We don’t know when someone might file a lawsuit or have some other issue come up where a judge can review that," said Tim Armstead. "We need to go to the next step."
Democratic Delegate Stephen Skinner, West Virginia’s first openly gay lawmaker, disagreed. "There’s really not much reason for a constitutional amendment, except to promote discrimination and promote homophobia," he said.
National gay-rights leaders expect that lawsuits seeking to expand gay marriage rights will eventually bring the issue back to the Supreme Court in a quest for a ruling that would establish a 50-state policy.
Lawsuits already are pending in a number of states. Some of those involved were heartened by the rulings.
"What this does is establish very, very powerful precedents that we will be able to use in our case," said Mark Lawrence of Restore Our Humanity, which is backing a legal challenge by three same-sex couples to a ban approved by Utah voters in 2004.
Michigan’s constitutional ban, also approved in 2004, is the target of a pending lawsuit by Detroit-area nurses April DeBoer and Jayne Rowse seeking a right to jointly adopt each other’s children. The federal judge hearing the case had been waiting for the Supreme Court before issuing a judgment.
In New Mexico, two gay men from Santa Fe asked the state Supreme Court on Thursday to decide whether same-sex marriage is legal. The lawsuit contends that denying marriage licenses to same-sex couples violates the state constitution, including provisions prohibiting gender-based discrimination and guaranteeing equal protection under the law.
New Mexico is one of only five states - along with West Virginia, Pennsylvania, Wyoming and Indiana - that has neither extended legal recognition to gay couples nor enacted a ban-gay-marriage constitutional amendment. There also is litigation in three states offering civil unions to gay couples, providing the rights and responsibilities of marriage but not extending that title.
In New Jersey, one lawsuit contends that civil unions do not fulfill a state Supreme Court mandate from 2006 that gay couples receive equal treatment to married heterosexual couples. The plaintiffs say they will soon file a motion arguing that, in light of the Supreme Court ruling, the only thing that is keeping the couples from equal treatment is the state law.
New Jersey’s Democratic-majority Legislature passed a bill last year to legalize gay marriage, but it was vetoed by Republican Gov. Chris Christie. He says the matter should be decided in a referendum.
"There is no longer any excuse to delay," said Troy Stevenson of the gay-rights group Garden State Equality. "It is as immoral as it is impractical to force any New Jersey family to be stripped of critical economic and legal protections every time they cross the Hudson or Delaware Rivers."
Hawaii’s civil union law, adopted in 2011, is being challenged in federal court by two women who want to marry rather than enter into a civil union. Democratic Gov. Neil Abercrombie, who supports a right to same-sex marriage, says the Supreme Court ruling on federal benefits for same-sex couples bolsters his argument.
Illinois also allowed civil unions in 2011, but efforts to legalize same-sex marriage in the recently ended legislative session fell short. The sponsor of the measure, Democratic Rep. Greg Harris, said the Supreme Court rulings should bolster efforts to revive the bill in the fall session.
Meanwhile, gay-rights lawyers are pressing ahead with a lawsuit on behalf of more than two dozen same-sex couples who were denied marriage licenses in Cook County. The suit also challenges an Illinois law that defines marriage as between a man and woman.
Gay-rights activists in some conservative states say there is no near-term prospect for softening their states’ gay-marriage bans, and they’re looking toward a more incremental approach.
In states such as Georgia, Idaho and Louisiana, these efforts include lobbying for local and statewide anti-discrimination laws that would extend protections to gays and lesbians.
In Wisconsin, a state that has tilted Democratic in national elections, Republicans now hold power at the Statehouse, and there’s little discussion by gay-rights supporters of mounting an effort to repeal the gay-marriage ban approved by voters in 2006.
Instead, gay-rights activists there are trying to defeat a conservative group’s lawsuit challenging a 2009 domestic partnership law that ended some legal rights to same-sex couples.
Wyoming has no constitutional ban on same-sex marriage, but proposals to permit civil unions and to ban discrimination against gays died in the latest legislative session.
State Rep. Cathy Connolly, the openly lesbian Democrat who sponsored those bills, says Wyoming’s strong libertarian streak might be conducive to a legalization of same-sex marriage at some point in the future.