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History in the high court

However the Supreme Court rules, gay marriage debate is far from over

Thursday, March 28, 2013

However the Supreme Court rules after its landmark hearings on same-sex marriage, the issue seems certain to divide Americans and states for many years to come.

In oral arguments Tuesday and Wednesday on two cases involving gay couples’ rights, the justices left open multiple options for rulings that are expected in June. But they signaled there was no prospect of imposing a 50-state solution at this stage.

With nine states now allowing same-sex marriages and other states banning them via statutes or constitutional amendments, that means a longer spell with a patchwork marriage-rights map — and no early end to bruising state-by-state battles in the courts, in the legislatures and at the ballot box.

Kevin Coyne of Washington holds flags in front of the Supreme Court in Washington on Wednesday
Photo: Carolyn Kaster, AP

A decade ago, opponents of same-sex marriage were lobbying for a nationwide ban on gay nuptials. They now seem resigned to the reality of a divided nation in which the debate will continue to splinter families, church congregations and communities.

“It’s a lot more healthy than shutting off an intense debate at the very moment of its greatest intensity,” said John Eastman, chairman of the National Organization for Marriage and a law professor at Chapman University in Orange, Calif.

By contrast, supporters of same-sex marriage believe a nationwide victory is inevitable, though perhaps not imminent. Many of them see merit in continuing an incremental hearts-and-minds campaign, given that many opinion polls now show a majority of Americans supporting their cause.

“No matter what the Supreme Court decides, we are going to be in a stronger place in July than where we before,” said Evan Wolfson, president of Freedom to Marry.

“We have the momentum and we have the winning strategy,” Wolfson said. “We are going to win the freedom to marry, whether in June or in the next round, when we go back to the court with more states, more public support and perhaps new justices.”

Even if the Supreme Court shies away for now from any broad ruling in favor of marriage rights for gay couples, its decisions in June could produce major gains for gay-rights activists.

In one case, the justices could strike down a section of the 1996 Defense of Marriage Act that denies legally married same-sex couples a host of federal benefits available to straight married couples.

In the other, concerning California’s Proposition 8 ballot measure banning same-sex marriage, the Supreme Court could leave in place a lower court ruling striking down the ban. That would add the most populous state to the ranks of those already recognizing gay marriages: Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington, plus the District of Columbia.

With California included, that group would account for about 28 percent of the U.S. population.

Meanwhile, legislative efforts to legalize same-sex marriage are under way in Illinois, Minnesota, Rhode Island and Delaware, and lawsuits by gay couples seeking marriage rights have been filed in several other states. In Oregon, gay-rights activists hope to place a measure on next year’s ballot that would overturn a ban on gay marriage approved by voters in 2004. Legislators in Nevada are debating a bill that could lead to repeal of a similar ban there.

In advance of the Supreme Court hearings, gay-marriage backers mustered support from a broad array of interest groups, including labor and religious leaders, major corporations, even dozens of prominent Republicans who co-signed a brief filed with the high court. In the past few weeks, a parade of politicians have publicly endorsed same-sex marriage for the first time, including Republican Sen. Rob. Portman of Ohio and Democratic Sens. Kay Hagan of North Carolina, Claire McCaskill of Missouri, Jay Rockefeller of West Virginia, Jon Tester of Montana and Mark Warner of Virginia.

Former President Bill Clinton chimed in, too, writing that he now regretted his decision to sign the Defense of Marriage Act in 1996 and urging that it be struck down. President Barack Obama’s administration also asked that DOMA be declared unconstitutional and that Proposition 8 be struck down.

For gay-marriage opponents, it’s been an occasionally daunting period as they watch a steady stream of prominent politicians and institutions join the rival side.

The conservative American Family Association’s website, for example, listed some of the many well-known corporations that are now supporting same-sex marriage — including Google, Microsoft, Citigroup, Apple, Nike, Facebook and Starbucks. The website suggests that Americans opposed to gay marriage should boycott these companies, but the president of the Mississippi-based association, Tim Wildmon, acknowledges that would be impractical.

“There’s too many of them to effectively boycott,” he said in a telephone interview.

Wildmon expects the U.S. to remain divided over gay marriage for a long time and hopes neither Congress nor the courts try to interfere with the right of states to set their own policies.

“That’s just the way it’s going to be,” he said. “If you want to be a homosexual married couple, move to a state that accepts it.”

Such interstate moves could indeed occur, but with a potential cost for the states being forsaken, said gay rights lawyer Jon Davidson of Lambda Legal. “Maybe that’s what some states want, but the outpouring of business support for us indicates a lot of businesses don’t want that to happen,” he said. “It creates all sorts of problems.”

Among some conservatives, there’s been frustration at the frequent exhortation from gay-rights activists that the Supreme Court should be “on the right side of history” by endorsing same-sex marriage.

“It requires no courage, at this point in history, to side with gay marriage advocates,” Maggie Gallagher, a co-founder of the National Organization for Marriage, wrote in a commentary. “Respecting the rights of the millions of Americans who disagree, and respecting the boundaries of our Constitution, is staying on the right side of history.”

Conservative radio commentator Rush Limbaugh, on his show Wednesday, suggested the spread of same-sex marriage was indeed inevitable. He cited signs of increasing divisions among Republicans on the issue.

“Whether it happens now at the Supreme Court or somehow later, it is going to happen,” Limbaugh said. “It’s just the direction the culture is heading. … The opposition that you would suspect exists is in the process of crumbling on it.”

In any case, it’s unlikely that some of the most conservative states — those that adopted gay-marriage bans by overwhelming margins — will recognize same-sex marriages unless forced to by the courts.

A likely result is a steady stream of state-level lawsuits by gay couples, according to Boston-based lawyer Mary Bonauto, whose work with Gay and Lesbian Advocates and Defenders helped legalize same-sex marriage in several New England states.

“There are committed gay couples in every state who want to stand up and make that legal commitment to marriage,” Bonauto said. “They’re not going to go away. … They believe our national promise of equal protection under the law applies to them, too, not just to the East and West coasts and Iowa.”

Depending on how such lawsuits fare, Bonauto said, “I think this issue could be back at the Supreme Court in a number of years.”

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17 more reader comments:

  1. Not if they rule same-sex marriage a Constitutional Right, then the debate is over.

    Posted on Thursday, March 28, 2013 at 11:20am
  2. :(

    Posted on Thursday, March 28, 2013 at 11:23am
  3. This is constitutional DOMA is not

    Posted on Thursday, March 28, 2013 at 11:23am
  4. Because they ruled abortion constitutional, and we all stopped arguing about that? Until people actually realize and understand and internalize that we have a secular government, the debates will continue. Unfortunately. Bigotry is, all too often, perpetuated by religion.

    Posted on Thursday, March 28, 2013 at 11:24am
  5. Really? I was assuming it was going to be shoved under the rug.

    Posted on Thursday, March 28, 2013 at 11:25am
  6. These are landmark cases which will establish the official legal position of the United States Government, as well as Constitutional precedence. The State-by-State battles are far from over. While a decision in these cases which strikes down both Prop.8 and DOMA will be remembered as the landmark civil rights ruling of our age, it will not act like a ‘magic wand,’ dissolving States’ rights.

    Posted on Thursday, March 28, 2013 at 11:27am
  7. For me, it was over in 2005 when I got married. IN CANADA.

    Posted on Thursday, March 28, 2013 at 11:29am
  8. If you take the time to listen to the court hearings, it’s actually inspiring in my opinion. There’s no mention of bigotry or religion within the conversations. It’s legitimate arguments about how to defend equal protection clause while still remaining within the constraints of the constitution, aka the federalism issue. I have respect for Justice Roberts because THAT is a defense that is plausible and should be used instead of quoting the Bible like Fred Phelps Jr. I’d like to think the equal protection argument will overrule, hopefully it will.

    Posted on Thursday, March 28, 2013 at 11:32am
  9. “A decade ago, opponents of same-sex marriage were lobbying for a nationwide ban on gay nuptials. They now seem resigned to the reality of a divided nation in which the debate will continue to splinter families, church congregations and communities.”

    And therein lies the pity of it all. That families and friends should be splintered on this issue.

    Posted on Thursday, March 28, 2013 at 11:36am
  10. LGBT nation. I have questions about what exactly you’re trying to accomplish. When I try asking people all I’m getting is “we are treated unequal” and that I’m “an ignorant homophobic biggot” so will someone please like inbox me to answer my questions? Please and thank you

    Posted on Thursday, March 28, 2013 at 11:38am
  11. Undoubtedly it will take court action at some level to force some states to comply. That much I foresee. When, I have no idea.

    Posted on Thursday, March 28, 2013 at 11:44am
  12. Women have equal rights, but there’s still sexism. African Americans have equal rights but there’s still racism. Once the gay and trans crowds get their rights, there will still be bigots. As long as minorities exists, ignorance will be right around the corner.

    Posted on Thursday, March 28, 2013 at 11:44am
  13. I can’t speak for the page, but as for me, I’m trying to accomplish equality. I don’t want to be separate but equal. I just want to be equal. If the word marriage is so intrinsically linked to religion in so many people’s minds, then our secular government should not be legislating or licensing marriage. I’m okay with civil unions – so long as EVERYONE has to have a civil union in order to be eligible for federal tax status, or survivor benefits, or joint insurance rates, or any of the thousand other benefits that come, today, with “marriage”. I’m fine with marriage being treated exactly like any other religious ceremony. No one gets extra benefits for being circumcised or baptized or bar mitzvah’d, and no one should get extra benefits for being married, if you want marriage to be a religious ceremony. If marriage is a religious ceremony, then EVERY “marriage” in this country should be relegated to the status of “civil union”, and that’s the licensing that should be granted by the state. And then – hell, it’s a license. Make people renew it every so often, or it lapses, just like hunting or driving. And without that active license, no benefits for you “more” or “different” than any single citizen would have.

    I don’t want to be more equal. I don’t want some special kind of privilege. I just want to be treated like everyone else, and to be subject to and to have the same access to the same laws and benefits.

    Posted on Thursday, March 28, 2013 at 11:54am
  14. It will not be solved for a long time,,,the money would dry up for all the funds and lawyers,,,can’t have that

    Posted on Thursday, March 28, 2013 at 11:56am
  15. a very proud straight ally. :) You have my support and posted my support on my business FB page as well… type in “Omidais” in the search field to see. If I were in DC I would be on the hill right now! :)

    Posted on Thursday, March 28, 2013 at 12:18pm
  16. We should ban the Supreme Court!

    Posted on Thursday, March 28, 2013 at 12:39pm
  17. It bothers me immensely that the current marriage controversy is being referred to sex more than love. Not every straight couple gets married just for sex. How many 90 year old couples get married and they are both in a wheel chair. Because it is about love and commitment for another person. If they have a sexual relationship, that is their business. Therefore, knowing there are so many gay people in our society wishing for the equal rights to marry, make that commitment to a partner, let them do it. Our society has become so complex with laws and finances, these people should be able to have the same rights under the license of a marriage certificate. Where ever they were married.

    Posted on Thursday, March 28, 2013 at 4:34pm