Bloomberg News

Gay Marriage Patchwork Seen as Courts Wrestle With Ruling

September 27, 2013

Twenty-five same-sex couples challenging statutes in Illinois that bar them from being married will learn today whether they can press lawsuits seeking to overturn those restrictions.

Next door in Indiana, advocates of same-sex marriage and their foes stand on the sidelines as lawmakers debate whether to enshrine that state’s ban on gay marriage in its constitution.

Three months after the U.S. Supreme Court struck down the federal Defense of Marriage Act -- without ruling on the constitutionality of state bans on same-sex unions -- judges, lawyers and legislators across the country are crafting a patchwork landscape of rights that may guarantee another showdown before the high court.

Until then, the gay-marriage map will be drawn largely by litigation, as cases work their way through courts in 17 states.

“Everybody expects that eventually, the U.S. Supreme Court is going to hear the issue,” said Camilla Taylor, one of two lead lawyers in the Illinois case. “The important thing is to try to prepare the day for that decision.”

Gay marriages can now be performed in 13 states and the District of Columbia, while 29 have constitutional amendments prohibiting it and seven have made it illegal by law.

Since the DOMA ruling, laws allowing same-sex couples to wed have taken effect in Minnesota and Rhode Island, while new lawsuits were filed in Pennsylvania state court, and in federal court in Virginia and South Carolina. Cases challenging Nevada and Hawaii’s bans are before the U.S. Court of Appeals in San Francisco.

Political Map

In New Mexico, the only state without a law allowing or prohibiting same-sex marriage, county clerks last month began issuing marriage licenses to gay couples. On Oct. 23, the state’s supreme court is set to hear arguments on whether that can continue.

The legal map can largely be traced over the political one. All 13 states allowing same-sex marriage were carried by President Barack Obama, a Democrat, in the 2012 election. Of the 24 states won by his Republican opponent, Mitt Romney, 21 have bans against gay marriage secured in their constitutions and three bar it by statute. Eight states Obama won also have constitutional bans.

In June, the U.S. Supreme Court struck down DOMA’s definition of marriage as a heterosexual union, a provision that meant legally married gay couples were denied federal benefits.

The majority said the law violated the constitutional right to liberty. The ruling, which pointed to earlier decisions establishing marriage as primarily a state concern, didn’t address prohibitions on same-sex weddings.

California Weddings

A separate decision the same day cleared the way for same-sex weddings to resume in California by saying opponents couldn’t appeal a ruling that threw out a voter-approved ban.

“The geographic turf war is even more pronounced than the number of states that have passed same-sex marriage suggests,” John C. Eastman, chairman of the Washington-based National Organization for Marriage, said in a phone interview. His group opposes same-sex marriage.

“The narrative that this is all a one-way street is just patently false,” Eastman said. “There’s a groundswell of a political movement that wants to defend traditional marriage.”

The Supreme Court’s ruling changed the climate for discussion of gay marriage, said William C. Duncan, a lawyer who leads the Lehi, Utah-based Marriage Law Foundation. That change, he said, has come even as the narrow scope of the high court decision allows state court judges to ignore it.

“Either we have a national policy or we end up with a patchwork,” Duncan, whose group opposes same-sex marriage, said in a phone interview.

Democrats, Republicans

A Gallup poll taken in July found that 52 percent of Americans, including 70 percent of Democrats, said they would vote for allowing gays and lesbians to marry. Forty-three percent said they would vote against it, as did 66 percent of Republicans surveyed.

The state constitutional amendments were attempts by opponents of same-sex marriage to cement their view into law while it was politically dominant, said Andrew Koppelman, a law professor at Chicago’s Northwestern University law school.

Some of the measures will be repealed by referendum while others will be struck down by courts, he predicted.

“We’re talking about a patient that has multiple fatal diseases,” Koppelman said. “I can’t tell you which is going to get him first.”

As recently as 2003, same-sex marriage wasn’t recognized anywhere in the U.S. When the Supreme Court that year reversed a 1986 ruling upholding a Georgia law criminalizing consensual sodomy, 13 states still had laws making it a crime, Taylor said.

Massachusetts First

Massachusetts, after a 2003 ruling by its highest court, became the first state to allow same-sex marriages in 2004.

“We have moved with lightning speed,” said Taylor, who leads the national Marriage Project for the New York-based Lambda Legal Education and Defense Fund Inc., which is suing Illinois in tandem with the American Civil Liberties Union.

Roberta Kaplan, the New York attorney who argued and won the DOMA case for her client, Edith Windsor, called the inconsistency of state laws “intolerable.”

Windsor sued over a $363,000 federal tax bill that followed the 2009 death of her spouse, Thea Spyer, whom she married in Canada. While their home state of New York recognized the marriage, under DOMA, the U.S. didn’t, creating the tax liability.

Kaplan predicted opposition to same-sex marriage will ebb.

States now straddling the issue, including New Jersey, Hawaii and Colorado, will reform their laws to retain skilled professionals, and others will follow, she said.

Deep South

“Some states aren’t going to move,” Kaplan said, probably in the Deep South, she added. “That’s when the issue will really be for the court to decide once again.”

Illinois affords same-sex couples some legal benefits through civil unions.

Patrick Bova, 75, and his partner, 81-year-old U.S. Navy veteran James C. Darby, are two of the lead plaintiffs suing Illinois. While some of their gay friends have traveled outside Illinois to marry, Bova said he and Darby are staying put, at least for now.

“We are staying here and hoping,” he said in a phone interview. “We’re not going to Iowa, not going to Minneapolis, although that’s tempting. Not going to New York.”

Bova said he and Darby met 50 years ago and concealed their relationship until about 20 years ago. He said he enjoys the growing acceptance of same-sex couples.

“It’s freedom,” Bova said. “It feels wonderful. I don’t have to worry about that. I don’t have to hide.”

Veteran’s Burial

One benefit of being able to marry, Bova said, would be the right to be buried side by side at the Abraham Lincoln National Cemetery in Elwood, Illinois, where veterans are interred.

Illinois Judge Sophia Hall in Chicago said she would rule today on a bid to throw out the lawsuits brought by the 25 couples, including two seeking to have their marriages in Canada recognized.

Five county clerks defending the law are represented by Paul B. Linton of the Chicago-based Thomas More Society, a Catholic-oriented public interest law firm. Linton’s group took up the case after Illinois Attorney General Lisa Madigan, a Democrat, declined to fight parallel lawsuits filed by Lambda and the ACLU.

Illinois Lawmakers

Illinois lawmakers passed the gay-marriage ban to further responsible procreation and the “ideal” of having children raised by their biological mothers and fathers, Linton told Hall at a hearing on Aug. 6. The law was reasonably related to those state interests, he said.

“They get the law wrong,” Taylor countered in court. “They reject the notion there is a fundamental right to marry the person of their choice.”

Pennsylvania Attorney General Kathleen Kane, a Democrat, has also said she won’t defend her state’s same-sex marriage ban.

After then-California Attorney General Jerry Brown and his successor, Kamala Harris, both Democrats, refused to defend Proposition 8, the initiative banning gay marriage in that state, the Scottsdale, Arizona-based Alliance Defending Freedom took the case. The Supreme Court ruled its client, a group that sponsored the proposition, couldn’t stand in for the state, because it hadn’t suffered a particular injury.

Supreme Ruling

The Supreme Court’s ruling on DOMA hinged on whether the federal government could treat gay married couples differently from heterosexual ones. Writing for the majority, Justice Anthony M. Kennedy said DOMA’s intent was unconstitutional discrimination.

The opinion didn’t question states’ traditional role of regulating marriage.

Justice Antonin Scalia called the majority’s deference to state law a “pretense.”

“No one should be fooled; it is just a matter of listening and waiting for the other shoe to drop,” Scalia said, contending the majority was setting the stage for a ruling granting same-sex marriage rights nationwide.

Eastman, who is also a professor of law at Chapman University in Orange, California, said his group’s goal is to ensure that shoe does not drop. If Kennedy’s ruling truly turned on principles of federalism, he said, then differences among the states will persist.

Republican Strongholds

Twenty of the states with constitutional amendments barring gay marriage also prohibit any legal recognition of same-sex couples. Some of those states, including Texas and Florida, have Republican governors and majorities in their legislatures.

Gay marriage opponent Linton agrees with proponent Taylor that the Supreme Court may let the issue play out in the states, at least for a time, before it takes up the issue again.

“At some point they may have an obligation to take one of these cases,” Linton said. “They owe it to the country, down the road, to decide it, because it’s going to continue to be litigated.”

The Illinois cases are Darby v. Orr, 12-CH-19718, and Lazaro v. Orr, 12-CH-19719, Cook County, Illinois, Circuit Court, Chancery Division (Chicago).

To contact the reporter on this story: Andrew Harris in Illinois state court in Chicago at aharris16@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net


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