Flurry of Court Rulings, with More Ahead, on Gay Unions

Gay marriage came roaring back into the headlines this month with a series of court decisions and a congressional vote. Here’s a look at what happened.

Question: What did all the court rulings mean?

Answer: Opponents of gay marriage won six cases in July. However, they acknowledged that only two of them were substantive. The most important victory came in New York on July 6, when the state’s highest court ruled that same-sex couples do not have a right to marry. Another key victory came in Nebraska on July 14 when a federal court upheld that state’s constitutional amendment banning same-sex marriage. The amendment was the broadest and most restrictive in the nation, so both sides considered it the most vulnerable to a court challenge. “If Nebraska can survive, they all will,” said Jordan Lorence, a senior attorney with the Alliance Defense Fund, which opposes gay marriage.

Q: What about the other four decisions this month?

A: In Georgia, Tennessee and Massachusetts, courts upheld the legality of past or pending ballot initiatives to ban same-sex marriage. All three cases, however, hinged on technicalities in state law, not on sweeping constitutional issues. In Connecticut, a trial court upheld a state law banning same-sex marriage. But that was a lower-court ruling, almost certain to be appealed, so neither side in the debate has put much stock in the decision.

Q: Does this string of victories for traditional marriage settle the question?

A: Far from it. Advocates on both sides are anxiously awaiting two rulings expected any day, from the state high courts in New Jersey and Washington. If either court rules in favor of same-sex marriage, it could have broad ramifications. Both states grant marriage licenses to nonresidents, so same-sex couples from across the country could arrange weddings there. When they returned to their home states, they could sue for the right to have their marriages recognized. That would touch off a new line of litigation. “The last 10 days have been pretty good for [traditional] marriage, but history’s taught us that things can turn around pretty quickly,” said Gary Schneeberger, a spokesman for Focus on the Family, a conservative advocacy group.

Q: What if New Jersey and Washington state rule against gay marriage? Would that settle this debate?

A: Gay-rights activists say two more decisions against them would be a serious blow to their cause. Even so, it would not end the legal wrangling. Gay-marriage cases are pending in California, Iowa, Maryland and Oklahoma, and activists are sure to file others. “We’ve known for a long time that we would have a lot of setbacks on the way to full equality,” said Toni Broaddus, executive director of the Equality Federation, a gay-rights group. “We’re in this for the long haul.”

Q: What’s happening in

California?

A: Last week, an appeals court panel heard five hours of oral arguments for and against California’s law banning same-sex marriage. (The law was passed in 1977 and reaffirmed by voters in 2000 through Proposition 22.) A ruling is expected this fall; the case will then likely go to the California Supreme Court. Regardless of how the courts rule, liberal lawmakers are expected to try again next year to legalize same-sex marriages. They passed such a bill last year, but it was vetoed by Gov. Arnold Schwarzenegger.

Q: Can’t the U.S. Congress get involved to preempt all this bickering and suing on the state level?

A: Opponents of gay marriage would love Congress to get involved. Their goal is to amend the U.S. Constitution to declare that “marriage in the United States shall consist only of the union of a man and a woman” and to make plain that no state need extend the benefits of marriage to same-sex couples. In 2004 and again this year, the “Marriage Protection Amendment” failed to get the two-thirds majority needed to pass Congress. Conservatives say such an amendment is vital. Liberals call it divisive and hateful.

Q: With all this tumult in the courts, what is the status of gay marriage today? Is there any place that same-sex couples can marry?

A: A few states, including California, offer civil unions or domestic partnerships for gay and lesbian couples, but Massachusetts is the only state to permit same-sex marriage. More than 8,000 gay and lesbian couples have exchanged vows since a landmark ruling from the state’s highest court in late 2003. Because of a provision in state law, however, only couples who live in Massachusetts can get married there. Voters will likely get a chance to ban same-sex marriage in the state with a ballot initiative in 2008.

Q: Ballot initiatives to ban same-sex marriage swept the country a few years ago. Are they still popular?

A: Yes. So far, voters in 20 states have amended their state constitutions to ban same-sex marriage. The amendments have passed overwhelmingly in every case, often supported by 70% or more of voters. At least seven states will hold popular votes on same-sex marriage bans this fall: Arizona, Idaho, South Carolina, South Dakota, Tennessee, Virginia and Wisconsin. In addition, such bans are pending before lawmakers in half a dozen states.

Q: If both judges and voters keep rejecting their claims, why do gay couples persist in pushing for the right to marry?

A: As a practical matter, legal marriage confers hundreds of benefits under state and federal law, affecting tax rates, immigration status, Social Security benefits, even the right to visit a dying loved one in the hospital. Same-sex couples can secure some of those rights through domestic partnerships, where available, or through legal documents granting their partner power-of-attorney or next-of-kin status. But such protection is uneven and incomplete.

Beyond such pragmatic concerns, many gays and lesbians see marriage as a fundamental civil right. They compare their campaign to the movement in the 1950s and ‘60s to overturn state laws banning interracial marriage. And they’re prepared to keep at it for decades, if need be, pressing their case through the political system and the courts.

Q: What about other countries? Is this as much of an issue internationally?

A: Debates about gay marriage have been raging for decades, not only in the United States but in Europe as well. Five countries permit same-sex couples to marry: Belgium, Canada, the Netherlands, South Africa and Spain.