November 19, 2004

More marriage ban amendments coming

Some of the 17 now in place face lawsuits,
but advocates urge caution with challenges

by Anthony Glassman
with wire reports

Washington, D.C.--Emboldened by the passage of 11 state constitutional amendments to ban same-sex marriage� on November 2, anti-gay activists are hoping to pass as many as 20 more in the next two years, including in the nation�s capital.

District of Columbia resident Lisa L. Greene filed papers for a ban amendment with the Board of Elections and Ethics on October 4. If her petition is approved, she would have half a year to collect 19,000 signatures to put the matter before voters.

In four states, constitutional amendments are already moving through the legislatures. Texas had an amendment filed on November 8, the first day new bills could be filed. It would need a two-thirds supermajority in both the state House and Senate to go before the people.

Wisconsin is already one-third of the way through the process, as are Massachusetts and Tennessee.

The Massachusetts legislature passed a ban amendment earlier this year in reaction to the state�s Supreme Judicial Court ruling legalizing same-sex marriage. The measure would require the legislature to create a parallel institution to provide most of the rights of marriage without the name.

If the amendment fails to pass in the next legislative session, it does not go to the voters. It must pass in two consecutive two-year sessions.

Wisconsin also passed a ban amendment in their last legislative session. It could come up for its second approval by January, in which case it would be on the ballot as soon as April.

Tennessee is also awaiting secondary approval by the state legislature before its amendment goes to voters.

The legislative climate in Idaho is deemed more conducive to passing an anti-gay marriage amendment this session with the departure of Senate State Affairs chair Sheila Sorensen. Sorensen, after the state�s House of Representatives passed the amendment, refused to bring it up for discussion in her committee, and successfully blocked numerous efforts to forcibly remove it to the Senate floor.

In Arizona, groups are circulating petitions to put a ban amendment before the voters. The measure would need over 180,000 signatures to place it on the ballot.

Suits challenge some measures

Lawsuits have been filed against some of the ballot amendments that passed this year, both in the general election and earlier.

In Louisiana, a court has ruled against the state�s ban amendment, which passed with 78 percent of the vote in September. The judge said that the measure addressed more than one issue, which cannot be done in a single constitutional amendment.

The amendment defines marriage as solely an opposite-sex institution, but also bars the recognition of any similar arrangement.

Exit polls in the general election showed that there was fairly wide support for rights for same-sex couples, despite heavy opposition to same-sex marriage. The Louisiana amendment did not give voters the opportunity to approve one section and not the other.

The case is now climbing its way to the Louisiana Supreme Court, and may also be heard in the federal court system.

Georgia�s ban amendment is being challenged on the same grounds, while Oklahoma�s is being challenged on the grounds that it violates constitutional equal protection and due process guarantees.

Overall, gay equal rights advocates are being careful in their legal challenges to the amendments, focusing mainly on bans against civil unions and domestic partnerships.

�The consequences--the risks--of losing are great,� Matthew Coles, director of the lesbian and gay rights project of the American Civil Liberties Union, told the New York Times. �And we�re unprepared for the consequences of winning.�

Coles believes that, unless there is a sea change in public opinion on same-sex marriage, a victory in a suit that only challenges a marriage ban could spur the passage of the Federal Marriage Amendment, which failed earlier this year in Congress and would likely fail again, despite Republican gains in both chambers.

Ban used against protection order

Acting on the full possible extent of ban amendments that include civil unions and other arrangements, an attorney in Utah argued that the state�s new amendment invalidates a protection order taken out against her client, although the amendment does not take effect until January 1.

The Utah case illustrates two points made by gay civil rights advocates about the more far-reaching, vaguely-worded amendments, like the one passed in Ohio: First, that there are far too many ways to interpret them, and second, that they not only affect same-sex couples, but can also cause great harm to heterosexuals as well.

The attorney, Mary Corporon, is arguing that the protection order issued against her client on behalf of his former girlfriend, who lives in what used to be their apartment, is too similar to a protection order that would be granted in the case of a nasty divorce. Corporon says that, since the couple were not married, the apartment in which they cohabited is as much his as it is his ex-girlfriend�s.

17 amendments now in place

The November 2 election brought to 17 the number of states with constitutional amendments barring the recognition of same-sex marriage. In eight of the 11 states that passed them in this month�s election, the measures solely dealt with the definition of marriage. The others also banned civil unions and domestic partnerships.

Amendments passed this month in Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon and Utah.

Missouri and Louisiana passed amendments in August and September, respectively.

Alaska and Hawaii both passed amendments in 1998, after their high courts ruled that the state constitutions were violated by denying marriage to same-sex couples.

Nebraska passed a constitutional amendment in 2000, and Nevada followed suit in 2002. The Nebraska one is also the subject of a court challenge

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