February 17, 2006

Big marriage rulings are coming in the next month

by Lisa Keen

The next month is shaping up to be one of the biggest ever in gay marriage history. The supreme court of Massachusetts will rule on whether out-of-state couples can marry there, and the supreme court of Washington will deliver an opinion that could make it the second state to issue marriage licenses to same-sex couples. A victory in either case will carry an enormous impact nationally.

And, as gay activist groups promoted the week as �Freedom to Marry Week,� the supreme court of New Jersey heard arguments Wednesday in a case seeking equal marriage rights there, and the supreme court of New York this month received its first briefs in that state�s marriage lawsuit.

Once again, the Massachusetts Supreme Judicial Court is in a pivotal position on the issue. The court is preparing to rule on a lawsuit, Cote-Whitacre v. Department of Public Health, which is challenging a directive from the governor to enforce a 1913 law that was passed to discourage interracial couples. Republican Governor Mitt Romney ordered state officials to use it to prevent gay couples from out of state from obtaining marriage licenses in Massachusetts.

Specifically, the 1913 law states that �No marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this commonwealth in violation hereof shall be null and void.�

In its lawsuit, filed on behalf of eight same-sex couples from six neighboring states, Gay and Lesbian Advocates and Defenders argued that the state�s application of the 1913 law violates the state and U.S. constitutions. A second lawsuit, filed by 13 town clerks, argued that the 1913 law has not been enforced against out-of-state couples for many decades and that the state�s directive to enforce it against same-sex couples was �blatantly discriminatory.�

Both sides of the marriage battle are poised for the ruling. GLAD recently sent out an e-mail alerting reporters that the decision could come out any day. Last weekend, one of the opponents of gay marriage hired three small airplanes to fly over Boston Harbor pulling signs deriding the state supreme court.

The state supreme court, led by its Chief Justice Margaret Marshall, issued the landmark decision in November 2003 which said the Massachusetts constitution requires the state to issue marriage licenses to same-sex couples the same as it does to heterosexual couples. The vote on that decision, Goodridge v. Department of Public Health, was close--4 to 3�and the court has been repeatedly criticized by conservative politicians, including President Bush, for its �activism.� Some critics have pressed for resignations and impeachment, but in Massachusetts, justices are appointed to serve until they turn 70, and all seven are still on the bench.

In Washington state, justices of the supreme court are elected by voters, and half of its nine-member bench have been there only since 2000. In November, the court voted 7 to 2 in favor of a lesbian�s right to a trial to prove she is a parent to a child her former partner gave birth to. The majority said the best interests of a child must be examined �in the face of differing notions of family� and that �Reason and common sense support recognizing the existence of de facto parents and according them the rights and responsibilities which attach to parents in this state.�

That ruling bodes well on the marriage issue, and the court is expected to rule by March 9 on two cases which seek equal marriage rights for gay couples. One of the lawsuits in Washington, Andersen v. King County, was the first of many to be filed around the country following the landmark Goodridge decision in Massachusetts. Each case limits its challenge to state constitutional issues, thus minimizing the likelihood that the case could be appealed to the U.S. Supreme Court. (Because it involves a U.S. constitutional issue, the Massachusetts 1913 case could be appealed to the U.S. high court.)

Andersen v. King County was brought by Lambda Legal Defense and Education Fund with the Northwest Women�s Law Center; the other lawsuit, Castle v. Washington, was brought by the ACLU. Both cases won successful declarations at the lower court level.

No matter what the results are in the Washington and Massachusetts cases, the battle over same-sex marriage will almost certainly escalate and expand there.

Ballot initiatives are stirring in both states. Washington voters could decide this November whether to keep a recently passed law to prohibit discrimination by sexual orientation, and no matter how the state supreme court rules, anti-gay activists are expected to try to pass a constitutional amendment to ban gay marriage. Massachusetts voters are expected to vote in 2008 on whether to amend the constitution to ban same-sex marriage and legal recognition of any form of same-sex relationship.

In almost a dozen other states, other lawsuits similar to Goodridge are pressing forward, with those in New Jersey and New York leading the second wave.

The farthest along is in New Jersey, where the state supreme court heard oral arguments Wednesday. Lewis v. Harris, brought by Lambda Legal Defense, focuses solely on state constitutional issues and lost at the lower court level. Justices are appointed in New Jersey, and this court includes three women and a man appointed by then-Republican Governor Christine Todd Whitman and three men appointed by then-Democratic Governor James McGreevey, who left office after acknowledging he is gay.

The New Jersey court ruled unanimously in 1999 for gay scout leader James Dale�s legal challenge to remain in the Boy Scouts--a decision later overturned by the U.S. Supreme Court--but only one justice from that year is still on the bench today.

In New York, there are five marriage cases pending, but the farthest along is Hernandez v. Robles, brought by Lambda Legal Defense, which filed its first briefs with the state supreme court earlier this month. The challenge, which focuses on state constitutional issues only, was successful at the trial level but reversed at the intermediate appeals level.

Whatever the results in the state courts, the gay marriage issue will almost certainly continue to inspire political debate at the national level and once again be used as fodder for this year�s congressional races and next year�s launch of presidential campaigns.

U.S Senate Majority Leader Bill Frist seemed to ensure the issue would play a role in this year�s congressional elections and beyond when he announced Monday that he will have the Senate vote in June on a constitutional amendment to ban gay marriage. Frist, who has indicated an interest in the Republican nomination for president in 2008, is, like many other Republican hopefuls, courting favor with the party�s religious right wing which has made clear it considers opposition to gay marriage to be a key concern.

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