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Thursday, November 18, 2004
Gay marriage milestone marks widening divide
By Kavan Peterson, Staff Writer
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November 18 marks the first anniversary of the landmark ruling that opened the door to same-sex marriage in Massachusetts but also fueled a conservative backlash of anti-gay marriage measures that continues to gain momentum one year later.
A year ago, the same-sex marriage movement appeared to be gaining ground. Although three-quarters of states had outlawed same-sex marriage, advocates had won state-sanctioned civil unions in Vermont, expanded domestic partnership benefits in California and New Jersey, and won a ruling by the U.S. Supreme Court striking down state anti-sodomy laws.
Then their biggest victory came in a landmark decision by the Massachusetts Supreme Judicial Court making the state the first to legally sanction same-sex marriage. Advocates hailed the ruling as the start of a new era for gay rights.
But as supporters celebrate the first anniversary of their historic victory, they're licking the wounds from a sweeping defeat at the ballot box two weeks ago and wondering how far the backlash will go.
On Election Day, voters in 11 states overwhelming approved amendments to their state constitutions banning same-sex marriage. Now, 17 states - more than one-third of the country - have marriage amendments. By 2006, that number will likely top half of the states. (Click here for 50-state rundown on same-sex marriage laws)
Emboldened by the election results, conservative lawmakers in at least nine states (Alabama, Arizona, Idaho, Indiana, Kansas, South Carolina, Texas, Virginia and Washington) where constitutional same-sex marriage bans failed to pass the legislature in 2004 say they will renew their efforts when legislatures go back into session in January. Gay rights advocates have admitted they expect to lose in most of these states.
"Gay rights leaders would be wise to change their strategy," said the Rev. Peter Sprigg, director of marriage and family studies for the Family Research Council, a conservative lobbying group based in Washington, D.C. "It's clear that the American public is not ready for same-sex marriage and is willing to take strong steps to stop it from becoming a reality."
Speaking to a national gathering of gay rights advocates in St. Louis last weekend, Matt Foreman, the executive director of the National Gay and Lesbian Task Force, admitted the same.
"Let's face up to the reality that the legal strategy behind the push for marriage equality is at least 10 years ahead of our political and public education work," he said.
The gay rights legal establishment has already signaled it will not try to take same-sex marriage before the U.S. Supreme Court at this time. But Foreman and other gay rights leaders have rejected taking gay marriage off the table completely, vowing to continue fighting at the state level.
"Love it or hate it, marriage is on the table now and there's no taking it back," Foreman said.
Foremost on the gay-rights community's agenda will be protecting same-sex couples' right to continue marrying in Massachusetts. Supporters of same-sex marriage gained a few more allies in the Massachusetts Legislature on Election Day, but it's unclear whether it will be enough to defeat attempts to send a constitutional amendment banning gay marriage to Bay State voters in 2006.
Efforts also are under way to challenge some of the new state constitutional amendments that not only ban same-sex marriage, but also prohibit granting civil unions or any other legal status that approximates marriage. Such measures were adopted by nine states in 2004 - Arkansas, Georgia, Kentucky, Louisiana, Michigan, North Dakota, Ohio, Oklahoma and Utah and Nebraska in 2000.
These challenges so far have been limited to legal technicalities and do not ask courts to legalize same-sex marriage. In Louisiana, for example, a state judge struck down that state's amendment in October on the grounds that it improperly dealt with more than one issue - marriage and civil unions. A similar challenge is pending in Georgia's state courts, and lawsuits have been filed in federal courts in Oklahoma and Nebraska.
Gay-rights leaders also have pledged not to back off pending lawsuits seeking marriage rights in more than half a dozen states, including California, Connecticut, Maryland, New Jersey, New York and Washington.
Regardless of their stance, the issue is out of their hands in at least one of those states.
Washington's Supreme Court announced this week that it would hear oral arguments over a same-sex marriage lawsuit on March 8, 2005. Two lower courts in Washington already have struck down a 1998 state law banning same-sex marriage as unconstitutional, and legal experts believe Washington's high court is likely to follow Massachusetts' example by legalizing same-sex marriage.
Opponents of same-sex marriage say such a ruling only would embolden their ranks and possibly could tip the scales in Congress in favor of passing a federal amendment to the U.S. Constitution banning same-sex marriage nationwide.
Republican leaders fell far short of the necessary two-thirds majority needed to pass a federal amendment twice this year. But just days after the election, Bush's top political advisor, Karl Rove, said that the president "absolutely" would push Congress to pass the amendment.
"This is an issue about which there is a broad general consensus," Rove said in a luncheon last week with reporters sponsored by the Christian Science Monitor. "People do not like the idea of the concept of marriage as being a union between a man and a woman being uprooted and overturned by a few activist judges or a couple of activist local elected officials who assume unto themselves the right to do so."
Although the election signaled that there is a consensus on limiting marriage to heterosexual couples only, exit polls indicate that a majority of Americans do in fact support gay unions in one form or another. Combined, 62 percent of voters favored either civil unions or same-sex marriage, far outpolling the 35 percent who wanted no legal recognition of same-sex couples.
Even President Bush, just days before the election, said that he supported civil unions and flatly disagreed with the Republican Party platform on that issue.
Saying he viewed the definition of marriage as different from the legal arrangements that give same-sex couples the rights of marriage, Bush told ABC's Good Morning America, "I don't think we should deny people rights to a civil union, a legal arrangement, if that's what a state chooses to do so."
Send your comments on this story to letters@stateline.org. Selected reader feedback will be posted in the Letters to the editor section.
Contact Kavan Peterson at kpeterson@stateline.org.
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