Battle Over Gay Marriage Goes to Voters
By Kavan Peterson, Staff Writer
The nation's turbulent gay marriage battle is moving to the ballot box this November in at least five states and potentially a half dozen or so more where voters will be asked to decide whether to amend their state constitutions to ban same-sex marriage.
At the same time they choose a new president, voters in Georgia, Kentucky, Mississippi, Oklahoma and Utah will vote on constitutional amendments already approved by their legislatures to ban gay marriage. Legislatures in at least nine states still are considering putting gay marriage bans on the ballot this year. The Kansas House of Representatives narrowly voted down a proposed amendment May 4.
Meanwhile, opponents of gay marriage are organizing citizen petition drives in five states Arkansas, Michigan, Montana, Ohio and Oregon to try to force a vote on constitutional prohibitions by Election Day.
In the five frenzied months since the Massachusetts high court forced gay marriage onto the nation's agenda by ruling gays have a constitutional right to marry, opponents have turned to the tools of the legislature and the ballot box to beat back the prospect of same-sex marriages. That leaves the courts as the best and perhaps only hope for gay and lesbian couples seeking the same rights and responsibilities that married heterosexual couples enjoy.
The overwhelming trend this year has been for legislatures to outlaw same-sex marriage, either by statute or proposed constitutional amendments. However, gay rights supporters did win two victories this week in California and Oregon where municipal officials had been issuing marriage licenses to gay couples in violation of state law in San Francisco and Multnomah County, Ore.
A committee in California's Assembly on April 20 became the first legislative body in America to approve a measure that would allow same-sex couples to wed. The same day in Oregon a state circuit court judge struck down as unconstitutional an Oregon law that prohibited same-sex couples from marrying and ordered Oregon to recognize the 3,000 same-sex marriages recently performed there. But the judge also halted the issuing of marriage licenses to gay couples for 90 days to give the Legislature a chance to address the issue.
California's landmark legislative action faces a stiff uphill battle in the full Assembly, where there is no guarantee the bill will reach the floor for a vote. Oregon's court ruling will be appealed to the state Supreme Court, and opponents already are at work to nullify the ruling by attempting to gather 100,000 signatures by July 2 to put a constitutional prohibition against gay marriage on the November ballot.
The latest tactic to rewrite state constitutions to ban gay marriage one that requires a statewide vote whether initiated by the legislature or by a citizen ballot drive - is seen as the most sure-fire way to try to prevent courts from legalizing gay marriage or recognizing same-sex weddings performed elsewhere.
Statewide ballots bode ill for gay rights supporters. No statewide referendum to ban same-sex marriage ever has been voted down. In the past decade, voters in four states - Alaska, Hawaii, Nebraska and Nevada have approved constitutional amendments banning same-sex marriage.
Proposed constitutional amendments are still pending in nine statehouses in Alabama, Delaware, Illinois, Louisiana, Michigan, Missouri, Minnesota, Tennessee and Vermont. In all, 24 state legislatures considered amendments this year. Amendments are expected to be introduced in at least three more states: North Carolina, Ohio and Pennsylvania.
Montana has no legislative session this year and that's why gay-marriage opponents there are turning to the citizen ballot initiative process. "What we'd like to do is put this definition in our constitution so that when the issue arises in Montana, and it will extremely soon, the courts have clear directions already so we don't get tied up in these free-for-alls that some other states are in," said Montana Rep. Jeff Laszloffy, Republican speaker pro tem of the state House and the chief organizer of Montana's initiative effort.
Laszloffy's organization, which is not yet officially named but is affiliated with the national conservative group Focus on the Family, must gather 41,000 signatures by June 18 a daunting task in a state the size of Montana. Luckily, Montana has a presidential primary June 8, which will be the perfect opportunity to collect signatures from registered voters, Laszloffy said.
The Arkansas Marriage Amendment Committee also plans to capitalize on that state's primary election on May 18, when the group plans to collect double the required 80,000 signatures by targeting polling places in all 75 of the state's counties.
"We decided that to protect Arkansas, we need to raise the marriage law to the level of the constitution. And we're going to give the people a chance to vote on that," said Chris Stewart, a lawyer from Little Rock, Ark., volunteering full time for the Marriage Amendment Committee.
Successful petition drives also could place gay marriage on the upcoming November ballot in Michigan and Oregon. In Ohio, a citizen initiative filed April 21 is seeking 317,000 signatures by Aug. 2 to put the issue before the Legislature and then to a statewide vote, possibly by Nov. 2.
In Massachusetts, where the Legislature already has taken one vote on an amendment that would ban gay marriage but legalize civil unions as an alternative, a petition drive is under way to cancel out the legislative action, but 2008 is the soonest it could come to a statewide vote.
Barring a last-ditch effort by Massachusetts Gov. Mitt Romney (R) to block the November 2003 ruling by his state's high court, gay and lesbian couples will be allowed to wed in the Bay State starting May 17.
This summer, Congress is expected weigh into the debate and vote on a federal amendment to the U.S. Constitution that would forbid any state from sanctioning same-sex marriage. While gay marriage foes view amending the U.S. Constitution as a way to settle the matter once and for all, constitutional and academic experts say going this route would be neither swift nor sure.
Writing a ban on same-sex marriage into the U.S. Constitution would require a two-thirds vote in both houses of Congress a formidable political obstacle in and of itself and ratification by 38 state legislatures, a potentially even more difficult and time-consuming process.
"We want to make sure that we are sending the message that amending the constitution -- state or federal -- to build discrimination into it is never acceptable," said Seth Kilbourn, national field director for the Human Rights Campaign, the nation's largest gay rights advocacy group.
The courts are where gay rights advocates are looking to have their civil rights elevated. Gay rights activists argue that slavery might not have been outlawed, women might never have won the right to vote, and interracial marriage might still be banned if those issues had been decided by voters instead of the courts.
"Civil rights issues should never be put up for a popular referendum," argues Kilbourn of the Human Rights Campaign.
Instead, gay rights supporters say the courts should decide the constitutionality of laws that ban same-sex marriage. So far, the courts have ruled in their favor.
"A lot of (gays and lesbians) see this as minority rights, and minority rights don't prevail very well in referenda, so they prefer the courts," said law professor and civil rights expert Jesse Choper at the University of California-Berkeley.
Before judges in Massachusetts acted, state courts in Alaska, Hawaii and Vermont also ruled that denying same-sex couples access to the rights and privileges of marriage violated their state constitutions. In response, Alaska and Hawaii adopted constitutional bans against gay marriage. Only Vermont created a marriage equivalent for gays called civil unions. Massachusetts lawmakers are attempting to roll back their court's ruling with a constitutional amendment that would ban gay marriage but legalize civil unions. Oregon's April 20 ruling is the latest in this string of legal victories for gays.
There has been much speculation about what will happen when a gay couple legally weds in one state and challenges a same-sex marriage ban in their home state. Even in Massachusetts, it's unclear whether out-of-state gay couples will be issued marriage licenses because of a 1913 state law that prohibited out-of-state interracial couples from being married in Massachusetts if it was illegal in their home state.
Legal experts agree that gay rights supporters first will exhaust legal challenges at the state level, but say the issue will not be resolved until it goes to the U.S. Supreme Court.
The leading organizations coordinating legal efforts to recognize gay marriage - Lambda Legal and the American Civil Liberties Union declined to discuss their strategies, but two arguments -- relying on the U.S. Constitution's Full Faith and Credit clause or on the 14th Amendment -- are seen as most likely.
Some constitutional experts argue that the federal Defense of Marriage Act, which allows states to ban gay marriage, could be declared invalid because it violates Article IV's Full Faith and Credit clause, which requires states to honor the "public acts, records, and judicial proceedings of every other state."
But other experts disagree and say the U.S. Supreme Court, in a ruling involving workers' compensation laws, held that a state may ignore the public act of another state if it violates the "strong public policy" of that state.
"The Full Faith and Credit clause in my view does not require a state, which has a policy of its own to enforce and an interest in enforcing it, to give full faith and credit to the contrary law of a sister state. This has been a doctrine that the Supreme Court has followed," said Berkeley Law Professor Herma Hill Kay.
A better challenge, Kay said, could be constructed under the 14th Amendment, which guarantees that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ... nor deny to any person within its jurisdiction the equal protection of the laws."
"I don't think anyone knows how it will come out," Choper of Berkeley said. "Ultimately the U.S. Supreme Court will have to decide it."