Bloomberg News

State-by-State Laws on Gay Marriage Produce Patchwork Quilt

February 10, 2012

(Updates with New Jersey Senate resolution in seventh paragraph.)

Feb. 9 (Bloomberg) -- The patchwork quilt of U.S. state laws on same-sex marriage, which Washington is now poised to legalize, leaves gay and lesbian Americans with different rights depending on geography. To opponents, that’s just the way things work in a union of self-governing states.

If Washington Governor Christine Gregoire signs the bill passed by lawmakers yesterday, which she sought, her state would become the seventh in the U.S. to grant so-called marriage equality.

Still, gay couples who wed there wouldn’t see their marriages recognized by the federal government or at least 40 other states that either outlaw same-sex marriage or haven’t addressed it, according to Freedom to Marry, a New York-based advocacy organization that supports gay marriage. That’s fine with John Eastman, chairman of the National Organization for Marriage, an advocacy group working against it.

“We have this system of laboratories called the states where we can try different experiments and see what works well and what doesn’t, without imposing a national rule on everybody,” said Eastman, a professor at Chapman University School of Law in Orange, California.

“We have patchwork laws on all sorts of things” that vary from one state to another, such as custody laws and third-cousin marriages, Eastman said in an interview. “It hasn’t seemed to have brought us down yet.”

Up for Consideration

New York, Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and the District of Columbia allow gay marriage. Lawmakers in Maryland and Illinois are weighing legalization, while North Carolina and Minnesota propose to bar the practice through voter referendum. Voters in Maine may decide whether to extend marriage rights to same-sex couples.

In New Jersey, Democratic legislators who control both chambers have pushed for legalization in the face of a veto threat from Republican Governor Chris Christie. Today, Senator Christopher Bateman, a Republican from Somerset, submitted a resolution to amend the state constitution to redefine marriage as “the legally recognized union of two persons of any gender,” according to his spokesman, Adam Bauer.

The amendment would require approval from both the Legislature and voters in a referendum. Bateman is against gay marriage and voted as such in 2009, Bauer said.

For advocates like Evan Wolfson, founder and president of Freedom to Marry, the patchwork of laws translates to “a house divided.”

‘One Country’

“We are one country, not 50 separate kingdoms, and we all deserve equal protection under the law,” he said in an e-mail. “Same-sex couples should not have to play ‘now you’re married, now you’re not’ depending on which state they are in, or where their employer sends them, or where their kids go to college.”

Nor should they be treated as “legal strangers,” he said, by the federal government because of the Defense of Marriage Act, a 1996 law signed by President Bill Clinton, a Democrat. The law prohibits the federal government from recognizing same- sex spouses, even those couples married in states where it’s legal. The Obama administration said last year it would no longer oppose court challenges to the law.

Tax Returns

Same-sex married couples, for instance, can’t file joint federal returns, which have the effect of lowering taxes, because the Internal Revenue Service defines a marriage for federal tax purposes as “only a legal union between a man and a woman as husband and wife.”

Washington state lawmakers yesterday approved a bill sought by their Democratic governor to legalize same-sex marriage. The measure includes an exemption for religious organizations to decide who qualifies for their wedding ceremonies and which marriages to recognize.

The law would normally take effect 90 days after the end of the legislative session on March 8, said Karina Shagren, a spokeswoman for Gregoire. It may face a repeal campaign, which would put it on hold pending a referendum, she said.

A day earlier, a panel of the U.S. Court of Appeals in San Francisco voted 2-1 to strike down California’s Proposition 8, a voter initiative that prohibited same-sex couples from marrying. Gay nuptials had begun in 2008 after the state’s top court overruled a ban passed by voters in 2000.

Supreme Court

Carla Hass, an attorney for the Proposition 8 proponents, said her clients were deciding whether to petition for a rehearing before the full appeals court or take the case directly to the U.S. Supreme Court.

A Supreme Court ruling throwing out Proposition 8 wouldn’t necessarily affect other states because the appeals court’s Feb. 7 ruling specified that the gay marriage issues in the case are unique to California.

In 2011, a majority of Americans for the first time favored making gay marriage legal, 53 percent compared with 44 percent a year earlier, a Gallup poll showed. Political independents and Democrats accounted for the change as Republicans’ views hadn’t budged, Gallup said.

The state-law quilt will eventually have to be dealt with because it’s incapable of being maintained administratively at both the federal and state levels, said Douglas NeJaime, an associate professor at Loyola Law School in Los Angeles.

The Defense of Marriage Act, which also says states don’t have to recognize gay marriages performed in other states, could be repealed by Congress or, more likely, the U.S. Supreme Court could be asked to rule on it, he said. Either will take years, he said.

--With assistance from Karen Gullo and Alison Vekshin in San Francisco and William Selway and Andrew Zajac in Washington. Editors: Pete Young, Peter Blumberg

To contact the reporter on this story: Esme E. Deprez in New York at edeprez@bloomberg.net

To contact the editors responsible for this story: Mark Tannenbaum at mtannen@bloomberg.net; Michael Hytha at mhytha@bloomberg.net


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