Same-sex marriage gains legal ground -- gradually

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When Maine’s highest court ruled two years ago that lesbians Marilyn Kirby and Ann Courtney could adopt the two children they had cared for since 2001, the man who has led the state battle against gay marriage for 25 years got a glimpse of the defeat now looming.

“There’s a sense people have -- a sense of inevitability -- and a tremendous sense of frustration because of the history of the gay rights fight in Maine,” said Michael Heath, executive director of the Maine Family Policy Council.

He was referring to rights incrementally accorded to gay couples that have led to virtual equality between same-sex and heterosexual unions -- a significant trend occurring in Maine and other states where gay marriage remains banned, experts on both sides of the issue agree.


Those rights are expanding as legally married gay couples relocate to states that don’t allow same-sex marriage, forcing courts, legislatures and employers to deal with the resulting issues of custody, divorce, inheritance and end-of-life decisions.

The adoption ruling in Maine had the effect of granting parental rights to same-sex couples. By the time the Legislature adjourns for the summer, experts expect Maine to become the fifth state to legalize same-sex marriage -- 11 years after voters banned it.

In New York, which doesn’t allow same-sex marriages but recognizes those conducted elsewhere, recent court decisions have granted a divorce to two gay men and surviving spouse benefits to another.

In California, federal judges have twice overruled decisions by the federal government to deny healthcare coverage to gay employees’ legal spouses, teeing up a constitutional challenge to the 1996 Defense of Marriage Act, which forbids federal benefits for same-sex couples.

Same-sex marriage is legal in Connecticut, Iowa, Vermont and Massachusetts, which began the trend five years ago. (Iowa issued its first marriage licenses April 27, a few weeks after its Supreme Court gave approval; weddings in Vermont will begin in September.) Within a year, Maine, New Hampshire, New Jersey and New York will probably follow suit, say sexual orientation scholars at the UCLA School of Law’s Williams Institute; New Hampshire’s Senate approved a same-sex marriage bill Wednesday.

And as more same-sex couples wed in places where it is legal, the administrative fallout in other states is expected to keep expanding.


“The courts are going to have to wrestle with these issues as more and more states make it possible for people to marry,” said Toni Broaddus, executive director of the San Francisco-based Equality Federation. “People don’t stay in the same state for their whole lives anymore, so the courts in states without marriage equality are going to have to address these issues.”

The recent moves in New England and the heartland to legalize gay marriage appeared to reinvigorate campaigns for passage of same-sex marriage bills in Maine, Maryland and Hawaii. Rights advocates predict the tide will eventually sweep even into some of the 30-plus states that have passed laws or constitutional amendments defining marriage as between a man and a woman.

“A body of law is emerging because it has no choice. Cases have been filed and they have to be decided one way or another,” said Joseph Milizio, a Long Island lawyer specializing in gay and lesbian representation.

The legal developments allow people to become comfortable with “the fact that gay marriage is going to be recognized in many different aspects, even in states that don’t allow it,” said Milizio, whose firm recently secured the first dissolution of a same-sex marriage in New York.

In the workplace, proponents of extending spousal rights such as healthcare benefits and life insurance to same-sex couples have succeeded by challenging employment practices that discriminate on the basis of sexual orientation. Seven states, including California, now guarantee full equality to same-sex couples -- another incremental advance that is lamented by opponents.

“These are serious cases of widespread importance, where we see same-sex couples attempting to use the laws of another state to push their agenda in a state that does not recognize their union,” said Jim Campbell, litigation counsel for the Alliance Defense Fund, a Christian legal organization.


“This is a danger that will spread to all states but will not necessarily result in same-sex marriage in all states,” Campbell said, noting that opponents will continue to press their elected officials to reject same-sex marriage initiatives.

Julaine Appling, executive director of Wisconsin Family Action, agrees, saying her group “has always taken the position that these kinds of decisions should be made in the Legislature, where they can be fully vetted and can have public opinion given.”

One state where the recent domino effect has been measurable is Hawaii. A same-sex marriage bill failed in the Senate but by a far narrower margin than previous votes, and efforts are underway to tinker with the wording to win majority acceptance.

Gay rights proponents credit the change in public and political attitudes to the state’s adoption a dozen years ago of a “reciprocal beneficiaries” policy, allowing any two people who can’t be legally married -- gay couples, blood relatives -- to designate each other as beneficiary of all rights and responsibilities accorded married couples.

Though still few in number, the states recognizing same-sex unions are home to nearly a third of the U.S. population, said Gary Gates, senior research fellow at the Williams Institute. He estimates that at least a quarter of the 780,000 same-sex couples married or registered in civil unions across the country are raising children, boosting the likelihood of legal challenges to secure equal protection from insurers, employers and the government for their families.

The federal ban on benefits to same-sex spouses remains in effect, said Brad Sears, executive director of the Williams Institute. But he added that President Obama has spoken out against the statute and suggested that it should be revoked by Congress or challenged in court on constitutional grounds.


Time is also a necessary element to achieving marriage equality throughout the country, Sears said.

“The more the rights of same-sex couples are recognized, the less credible are arguments about potential bad or harmful things that might happen if they are recognized,” he said.