Reprint from The Baltimore Sun

State-by-state fight looms over same-sex marriages
In Maryland, lawmakers on both sides plan bills; Ehrlich opposes unions

By Frank Langfitt, Sun Staff

Baltimore Sun, November 22, 2003
( http://www.sunspot.net/ )

Gay rights advocates won a major victory when the Massachusetts high court struck down a ban on same-sex marriages this week - but that powerful precedent will not be easy to duplicate as both sides prepare for a state-by-state battle that could last a decade or longer.

If Massachusetts follows up by legalizing gay marriage, same-sex couples who obtain licenses there can return to their home states and file suit demanding legal recognition, accelerating a social, religious, political and legal struggle over the nature of marriage in American society.

"It's trench warfare for quite a long time," said Mat Staver, who heads Liberty Counsel, a conservative legal defense organization in Orlando, Fla.  "There aren't going to be any precision-guided bombs, where there is one big drop and it's all over.

"There are going to be judicial and legislative battles, including referenda initiated by the people."

Among the more promising targets for gay rights advocates is Maryland, which has fewer legal restrictions against same-sex marriage than most.  Gov. Robert L. Ehrlich Jr., however, says he firmly opposes gay marriage and would veto any legislation to legalize it.

Both sides agree that the push for gay marriage nationwide faces many obstacles, despite last week's landmark ruling.

Opponents built a legal firewall against same-sex marriage in the 1990s, when 37 states passed Defense of Marriage Acts, which define marriage as a union between a man and a woman.

In addition, the 1996 federal Defense of Marriage Act permits states to reject same-sex marriages from other jurisdictions.

"There is no doubt that in those states with anti-marriage laws, [gay] families are going to have a much harder time," said David Buckel, director of the marriage project for Lambda Legal, a gay civil rights group.

Buckel also said the legal battle would move more slowly and deliberately than his opponent's military imagery suggests, relying on individual gay couples to challenge state laws.

"This is not some big chess game being run by a few people in the country," Buckel said.

Maryland 'friendly'

Gay rights activists view Maryland as a potentially friendly venue for a lawsuit, given the state's generally progressive politics and a 2001 law prohibiting discrimination in employment and housing based on sexual orientation.

In an interview yesterday, though, Ehrlich said same-sex marriage would undermine a "bedrock" social institution and predicted the General Assembly would kill any bill that tried to legalize it.

"It's not going to come out, obviously, and I certainly would veto the bill in any event," Ehrlich said.  "I don't think this is going to be a major issue in the state legislature, because I think the majority opinion
in the state will make sure that the debate is going to be of relatively short duration and pretty one-sided."

Privacy rights

Ehrlich emphasized that he supports privacy rights.  "I'm not interested in the police breaking into bedrooms and prosecuting consenting adults," he said.

Lawmakers on opposing sides say they're preparing legislation on same-sex marriage for the General Assembly session that begins in January.

Del. Emmett C. Burns Jr., a Democrat from Baltimore County, will propose a Defense of Marriage Act that he says would define marriage as a union between a man and woman and reject same-sex marriages from other states.

Burns, the pastor of Rising Sun Baptist Church in Woodlawn, has introduced similar legislation in the past, but the bills died in committee. This time, he is more optimistic.

"I think there is an urgency now that wasn't there before," he said, referring to the Massachusetts ruling.  "It's at our front door, and I think that's going to make a difference."

Del. Richard S. Madaleno Jr., a Montgomery County Democrat, said he plans to introduce a bill to legalize gay marriage.

Without state recognition, Madaleno argued, same-sex couples do not enjoy the same legal rights as heterosexual couples to make medical decisions for each other or to share ownership of real estate.

Making the case

"We need to explain and make our case to the people of this state about our relationships and why they deserve legal recognition," said Madaleno, who is gay.

"This is the first year where there will be broad debate."

The Massachusetts Supreme Judicial Court ruled this week that barring same-sex couples from the benefits, protections and obligations of civil marriage violated that state's constitution. The case involved a suit by seven gay couples who tried to obtain marriage licenses in 2001.

Rejecting the commonwealth's arguments, the court said the primary purpose of marriage is not procreation, but the permanent commitment of partners to one another.

A ban on marriage "works a deep and scarring hardship" on same-sex families, wrote Chief Justice Margaret M. Marshall.  "The Massachusetts' Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens."

The court postponed the effective date of the ruling for 180 days to give the legislature time to come up with a solution.  Some legal analysts predict the legislature will license marriage for same-sex couples - a first in the United States.

Others believe Massachusetts legislators will take a more conservative route: creating civil unions for same-sex couples like neighboring Vermont's, which provide practically all of marriage's legal
benefits without the title.  Such legislation would not set a precedent and would be much less valuable to gay rights activists.

"If Massachusetts falls in line with Vermont, it's just the second state to adopt civil unions," said David Cruz, an associate professor of law at the University of Southern California.

Start of momentum

If Massachusetts sanctions same-sex marriage, though, advocates predict that gay couples from other states will obtain marriage licenses there and eventually file suit for legal recognition back home.

Although Massachusetts' ruling does not apply elsewhere, Buckel thinks it could have an influence.

"There is no doubt that our high court in New Jersey will be reading the Massachusetts opinion closely," he said, referring to a same-sex marriage case he is litigating there.

The U.S. Constitution generally requires that one state recognize marriages from another under Article Four, which reads, "Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state."

In the 1996 Defense of Marriage Act, however, Congress denied extension of federal benefits to same-sex couples and allowed individual states to decide whether to recognize such unions.

A majority of states have enacted laws defining marriage as a union between different sexes, adding a considerable legal hurdle.

Proposed amendment

Opponents of same-sex marriage are working to erect what would be the most effective nationwide barrier - a constitutional amendment defining marriage as a union between a man and a woman.

Enacting such an amendment, though, would be difficult and time-consuming.  It requires a two-thirds vote in both the U.S. House and Senate, then ratification by three-quarters of the country's state
legislatures.

The last major battle of this type involved the Equal Rights Amendment for women.  Congress approved the amendment in 1972, but it ultimately fell three states short of ratification a decade later.

Despite recent legal victories for gay rights advocates, polls show that the public continues to oppose gay marriage - and a backlash is emerging.

Since the U.S. Supreme Court overturned a Texas sodomy law in Lawrence vs. Texas last summer, the number of members of Congress supporting a constitutional amendment opposing same-sex marriage has risen from 25 to more than 90, according to USC's Cruz.

A nationwide poll released this week by the Pew Forum on Religion & Public Life found that opposition to gay marriage has increased from 53 percent to 59 percent since July.

"People are very tolerant in America," said Jay Sekulow, chief counsel of the American Center for Law and Justice, a public interest law firm opposed to same-sex marriage.

"But when you thrust or hoist a position on the body politic like this, America can have a very visceral reaction." David Buckel, the Lambda attorney, sees a long road ahead.  He likens the Massachusetts ruling to one in 1948, when California's high court became the first to strike down a ban on interracial marriage.  It took 19 years before the U.S. Supreme Court struck down such laws nationwide.

Buckel says the greatest impact of this week's ruling will not be legal, but social.

Nothing to fear

If Massachusetts issues marriage licenses, an increasing number of gay people will obtain them, he predicts, and ordinary Americans will see over time that they have nothing to fear.

"Americans get to see that contrary to [opponent's predictions] the world does not crumble, the sky doesn't fall and, indeed, families are stronger," said Buckel.

"As more Americans come to see that, more Americans will believe that discrimination in marriage should end."