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The state of Marriage Equality in 2011

Sunday, January 16, 2011
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Editor’s Note: This article has been updated since its original posting.

After a 2010 with few marriage equality measures contested outside the courtroom, 2011 will likely see a number of battles state by state across the country.

Three states plus the District of Columbia are facing the prospect of losing marriage equality, an additional seven states could start the process of amending their state constitutions to ban marriage equality, five could gain marriage equality.

Here are the key states to watch.

States that could lose marriage equality:

New Hampshire:

LGBT advocates have considered New Hampshire — with a new, veto-proof Republican majority — one of this year’s most serious battlegrounds.

But House Majority Leader Rep. D.J. Bettencourt (R-Salem) said January 13 that repealing the state’s year-old marriage equality law is not a Republican priority in 2011. The party wants, instead, to focus on jobs and the economy.

But Bettencourt refused to say he would discourage the introduction of repeal bills. And gay marriage opponents Kevin Smith, executive director of the far-right group Cornerstone Action, and State Rep. David Bates (R-Windham), told the Associated Press they still plan to pursue a repeal.

The executive director of New Hampshire Freedom to Marry, Mo Baxley, said in a statement that she was “pleased” the repeal is not a priority for Republicans but added that her organization is continuing its planned efforts to preserve the existing law.

Iowa:

Republicans in the legislature plan to introduce a bill to pursue a state constitutional ban on same-sex marriage, in response to a 2009 ruling by the Iowa Supreme Court that made marriage legal for same-sex couples.

The change must be approved by two successive legislatures and then ratified by voters. Republicans control the House 60-40, but Democrats have a 26-24 edge in the Senate, and Senate Majority Leader Mike Gronstal (D-Council Bluffs) has said he would block a vote on such a bill.

Several Republican legislators also want to begin impeachment proceedings against the remaining four of the seven justices who joined in the unanimous marriage ruling. The other three justices lost retention elections last November, after right-wing groups campaigned to oust them.

Impeachment would require a simple majority in the House and a two-thirds majority in the Senate, but the judges would be removed immediately if impeached by the House and could be reinstated only if found not guilty after a Senate trial. House Minority Leader Kevin McCarthy told The Cedar Rapids Gazette that Democrats would “shut the place down” if necessary to block an impeachment effort.

Update: On Feb. 1, The Iowa state House passed House Joint Resolution 6, an amendment that seeks to repeal the state’s marriage equality law, and deny any form of legal recognition for gay couples. The bill now moves on to the Iowa Senate, where Senate Majority Leader Mike Gronstal (D) has vowed to fight attempts to pass the amendment.

Washington, D.C.:

A coalition of local anti-gay activists led by Bishop Harry Jackson of Hope Christian Church in Maryland has been pushing for a referendum on the district’s year-old marriage equality law.

D.C. courts and the district’s Board of Election ruled last year that this would violate a district prohibition on referenda related to the city’s Human Rights Act — which bans discrimination based on sexual orientation. Jackson has asked the Supreme Court to consider the case.

Update: On Jan. 18, the U.S. Supreme Court said it would not hear Jackson’s appeal.

States that could win marriage equality:

Rhode Island:

Newly elected Governor Lincoln Chafee (I) expressed his support for marriage equality during his inauguration speech January 4. Legislators introduced marriage equality bills in both the House and Senate on January 6.

Democrats hold large majorities in both chambers, and House Speaker Gordon Fox (D), who is openly gay, is a cosponsor of the bill. The bill may face a bigger struggle in the Senate, where Senate President M. Teresa Paiva Weed opposes marriage equality.

Maryland:

Marriage equality bills are pending in both houses of the legislature, and supporters now form majorities on the key judicial committees that must first approve them.

State Senate Minority Leader Allan H. Kittleman, however, said he will introduce a bill to allow civil unions for both same- and opposite-sex couples.

Update: On Jan. 18, Kittleman announced he will step down as minority leader after Republican colleagues told him they would not support his civil unions bill.

On Jan. 21, Senate Majority Leader Rob Garagiola (D) introduced the Religious Freedom and Civil Marriage Protection Act. The legislation would permit same-sex couples to marry but would not require churches to perform the unions.

New York:

Although Republicans have a two-seat majority in the State Senate, Empire State Pride Agenda Executive Director Ross D. Levi said in a press release that LGBT advocates have “picked up at least two ‘yes’ votes.” Democratic Governor Andrew Cuomo has said he would sign a marriage equality bill if it reaches his desk.

Update: On Jan. 17, New York state Sen. Thomas Duane (D-Manhattan), the Senate’s biggest booster of gay marriage, said he’ll introduce legislation “within weeks” to legalize same-sex marriage, and will push for a vote before the end of June.

All three of the above states already recognize marriages of same-sex couples from other jurisdictions.

New Jersey:

The state Supreme Court last June refused to hear a case that claimed the state’s civil union law did not provide full equality. It said the case must first go through the trial court process.

Jennifer Pizer, National Marriage Project Director for Lambda Legal Defense and Education Fund, said a trial court attempt is “a sensible next step for us to consider.”

Lambda Legal and state LGBT rights group Garden State Equality are also working on another round of marriage equality legislation, although Pizer could not yet share any details.

California:

The case to overturn Proposition 8, the state ban on same-sex marriage, is in a rather unusual spot.

It is awaiting a decision from the 9th Circuit U.S. Court of Appeals, but the appeals panel said January 4 that it could not render a decision on the constitutionality of Proposition 8 until the California Supreme Court rules that there is some state law or authority to justify giving the Yes on 8 proponents of the initiative legal standing to appeal the case in federal court on behalf of California voters.

Pizer said that a 9th Circuit decision against Proposition 8 would have “a massive positive effect nationwide” as marriage equality became a reality on both coasts.

She also noted there are “serious efforts underway now” for potential ballot measures in 2012 to secure marriage equality in Maine, Oregon, and Washington.

States that could win civil unions:

Hawaii:

Acting House Majority Leader Blake Oshiro, who is openly gay, told KITV on Jan. 10 that he wants to pass a civil union bill early in the session. The Hawaii legislature is almost the same as the one that passed such a civil union bill last year only to see it vetoed by outgoing Republican Governor Linda Lingle.

Current Governor Neil Abercrombie, a Democrat and long-time supporter of equal rights for gays, has said he would support a new bill.

Update: On Jan. 28, the state Senate passed a civil unions bill that would grant same-sex and heterosexual partners essentially the same protections, rights and benefits currently extended to married couples. The measure moves to the state House, where, leaders said they expect it to pass by a wide margin.

Illinois:

The Illinois Religious Freedom Protection and Civil Union Act passed in the Illinois state Senate on Dec. 1 after passing in the House the previous day. The civil unions bill will provide the same spousal rights to same-sex partners when it comes to surrogate decision-making for medical treatment, survivorship, adoptions, and accident and health insurance.

Update: On Jan. 31, Gov. Pat Quinn signed the civil unions bill into law. Gay and lesbian couples will be able to have their unions legally recognized by the state effective June 1, 2011.

Montana:

Montana bans same-sex marriage under the state constitution, but the American Civil Liberties Union (ACLU) has filed a case on behalf of seven couples to try and gain the protection of domestic partnerships.

Colorado and Delaware will also likely see civil union bills introduced.

States that could ban marriage equality:

Indiana, Minnesota, New Mexico, North Carolina, Pennsylvania, South Dakota, and Wyoming have statutes that prevent same-sex couples from obtaining marriage licenses, but efforts to protect those bans from legal challenges are expected through proposed constitutional amendments.

Lambda’s Pizer noted that anti-gay groups may wait until 2012 to do seek introduction of such measures in hopes of using them to rally conservative voters to turnout during a presidential election year.

This year, though, Wyoming State Rep. Cathy Connolly (D), the only openly gay member of the legislature, plans to introduce a bill for full marriage equality and one for civil unions, while Republican legislators are planning to reintroduce a defense of marriage law.

Update: On Jan. 20, the Wyoming state House advanced legislation to prohibit recognition of out-of-state gay marriages, while a Senate committee approved a resolution aimed at a constitutional amendment to ban same-sex marriage. The House measure passed on its first hearing with 34 out of 60 votes.

And New Mexico Attorney General Gary King issued a non-binding opinion January 4 stating that same-sex marriages performed in other jurisdictions would likely be recognized in the state.

Evan Wolfson, Executive Director of Freedom to Marry, said that this year, “we have the chance to really make some important strides in key states.” He stressed that wins in the states will help sway public opinion and move marriage equality forward on a federal level as well.

South Carolina
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