Gay Marriage Fight Shifts to the States
The legal battle over same-sex marriage has shifted from the Supreme Court to state capitals and lower courts as supporters seek to build on their recent victories and opponents hope to thwart that progress.
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Armed with Justice Anthony Kennedy’s decision striking down the Defense of Marriage Act, lawyers representing same-sex couples filed a lawsuit in Pennsylvania on Tuesday, and vowed to follow with others in North Carolina and Virginia.
Those cases will be added to at least 11 pending from New Jersey to Hawaii.
“There are a lot of cases out there,” said James Esseks, director of the American Civil Liberties Union’s LGBT & AIDS Project, which filed the Pennsylvania challenge. “It’s quite clear to me that this issue is headed back to the U.S. Supreme Court and is likely to get there sometime over the next several years.”
On Thursday, Pennsylvania’s attorney general, Kathleen Kane, said she would not defend the state against a lawsuit to overturn a ban on same-sex marriage, following in the footsteps of attorneys general in Illinois and California who also declined to defend their states in similar cases.
The flurry of activity is prompted in part by what gay-rights groups see as the long-term implications of Kennedy’s ruling. If federal benefits cannot be denied legally married same-sex couples, they say, states ultimately cannot deny gays and lesbians the right to marry.
The legal and legislative efforts are welcomed by opponents of same-sex marriage, who worry that the high court’s ruling has left lower courts in limbo.
Although the soaring rhetoric in Kennedy’s opinion seemed to make any discrimination against same-sex marriages unconstitutional, the ruling reiterated states’ jurisdiction over marriage policy. That could help opponents in state and federal courts that are less inclined to sanction same-sex marriage than those in states such as New York and California.
“I’d like to see this settled,” said John Eastman, chairman of the National Organization for Marriage, which opposes same-sex marriage. If judges rule against the new challenges — as district courts already have done in Nevada and Hawaii — “then that will stop the train for the time being and give Congress an opportunity to weigh in.”
Both sides have stepped up their lobbying efforts. The Human Rights Campaign, the nation’s largest gay-rights organization, sent officials to Arkansas, Mississippi, North Carolina, and Virginia this week to highlight what it calls the “two Americas” left in the wake of the Supreme Court’s verdicts in late June.
While same-sex couples can marry in 13 states — including California, following the high court’s procedural ruling in late June against the state’s marriage ban — they are precluded in the others, including the entire South. The group is seeking to reverse state laws and repeal constitutional amendments barring gays and lesbians from marrying.
“Over the next few weeks and months, it is going to be open season on marriage litigation,” said Fred Sainz, vice president for communications at the Human Rights Campaign. “My suspicion is that this is only the beginning. There’s been built-up demand for relief from these onerous laws.”
The National Organization for Marriage also has stepped up its advocacy and fundraising efforts. At the outset, it is seeking to add Indiana to the list of 29 states with constitutional amendments banning same-sex marriage.
“The legal landscape is littered with lawsuits and other legal actions against small businesses, individuals and religious groups who refuse to ignore their beliefs about the truth of marriage,” the group’s president, Brian Brown, wrote supporters last week. “Please give generously so that we have the resources necessary to lead this incredibly important fight.”
In Washington, the battle has moved from the Supreme Court to Congress and the White House. A Senate committee on Wednesday approved the Employment Non-Discrimination Act, which would prohibit discrimination against gays in hiring and on the job — considered critical for same-sex couples seeking marriage benefits. And President Obama is under pressure to apply those benefits nationwide.
The latest lawsuit in Pennsylvania was filed by 10 same-sex couples, two children and a widow from all walks of life: a doctor, a nurse, a teacher, a truck driver, a dog trainer, and others, including several military veterans.
“Many have been together for decades, and some are raising children together,” said U.S. Rep. Matt Cartwright, D-Pa. “The situations faced by these couples are similar to those faced by the thousands of same-sex couples in Pennsylvania who are being denied the basic rights that are afforded by marriage.”
Whether the lawsuits are being filed too soon — before more states have adopted same-sex marriage — is a matter of debate among gay-rights groups. Some want to reverse more state laws and bans before a case works its way back to the high court. But that may be possible only in a few additional states, such as New Jersey, Illinois, and Hawaii.
“We’re running out of states,” Sainz said. “Getting rid of a constitutional amendment is a very high bar. It is the Supreme Court that is eventually going to make marriage equality the law.”
Richard Wolf writes for USA Today. Via RNS.