Gay Marriage Issue Heats Up Across Nation

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COURT REPORTER

Gay Marriage Issue Heats Up Across Nation [by Alan Dessoff] Although the U.S. Supreme Court has declined to become involved-at least for now-same-sex marriages are growing legal as well as moral issues in courtrooms and legislatures across the country.

In the November elections, voters in 11

stitution; it may demand broader protection

be defined by someone. I would rather have

states approved constitutional amendments

for fundamental rights; and it is less tolerant

it defined by the people of the United States

banning gay marriages. Courts in Massachu-

of government intrusion into the protected

instead of the judiciary,” Staver concluded.

setts, Alaska, and Hawaii have recognized

spheres of private life.”

gay marriages, but legislatures in the latter

President George W. Bush said during his

two states amended their state constitutions

Liberty Counsel, a Florida-based nonprofit

reelection campaign this year that he would

to legalize marriage only between a man and

organization dedicated to “advancing reli-

support a constitutional ban on gay marriage

a woman. Vermont allows same-sex couples

gious freedom, the sanctity of human life,

and promised to make it a priority issue in

to have the rights and benefits of marriage

and the traditional family,” challenged the

his second term. The U.S. House of Repre-

but calls them civil unions.

state court’s decision on behalf of 11 Massa-

sentatives began considering it this year, and

chusetts legislators and Robert Largess, vice

it likely will gain strength in the even more

Meanwhile, Canada’s Supreme Court this

president of the Catholic Action League. The

conservative new Congress that begins in

month ruled that gay marriages are consti-

1st U.S. Circuit Court of Appeals in Boston

January, although there also is broad biparti-

tutional-underscoring the differences on the

upheld the Massachusetts court ruling, and

san opposition to the effort.

issue between Canada and the United States.

Liberty Counsel took the case to the U.S. Supreme Court.

The U.S. high court, without comment,

The Human Rights Campaign, the largest national lesbian, gay, bisexual, and trans-

backed off in November from a case chal-

Liberty Counsel asserted that the Massa-

gender political organization, hailed the U.S.

lenging the right of same-sex couples to

chusetts court overstepped its authority and

Supreme Court’s decision not to get involved

marry in Massachusetts, currently the only

violated the U.S. Constitution’s guarantee of

in the issue. “Massachusetts can continue

state where such marriages are legal. It was

republican forms of state government. Mat-

to treat all of its citizens equally,” said the

the second time the court avoided the issue.

thew Staver, president and general counsel

group’s president, Cheryl Jacques. “It makes

Justices refused last May to intervene and

of Liberty Counsel, said in a filing with the

sense [that] the court wouldn’t take away

block clerks from issuing the first marriage

Supreme Court that federal courts should

rights from hard-working, tax-paying Ameri-

licenses in Massachusetts.

defend people’s right “to live in a republi-

can families.”

can form of government free from tyranny, The latest case - Largess v. Supreme Judicial Court of Massachusetts, 04-420 - arose from a 4-to-3 ruling in November 2003 by the Supreme Judicial Court of Massachusetts that the state’s constitution gave gay couples the right to marry. The court said government attorneys “failed to identify any constitutionally adequate reason” to deny them the right.

whether that comes at the barrel of a gun or

“The bottom line is that nobody is being

by the decree of a court.”

harmed by the Massachusetts state law

In its ruling, the Massachusetts high court

He said the high court’s decision “highlights

vessel for freedom to a tool of discrimina-

declared: “The Massachusetts Constitution

the need” for an amendment to the U.S.

tion.” Throughout the country’s history, “the

is, if anything, more protective of individual

Constitution defining marriage as the union

Constitution has been amended to expand

liberties and equality than the Federal Con-

of one man and one woman. “Marriage will

individual rights, not restrict them,” Jacques

treating all couples equally,” added David “This battle is far from over. The Constitution

Buckel, project director of Lambda Legal, a

should protect the citizens of Massachusetts

homosexual advocacy group.

from their own state Supreme Court’s usurpation of power,” Staver declared after the

Jacques also decried the move toward a

Supreme Court sidestepped the issue.

federal constitutional amendment as “an attempt to change the Constitution from a

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COURT REPORTER

declared.

no other state recognizes Vermont’s legal same-sex civil unions.

She characterized the high court’s decision in the Massachusetts case as “federalism

Some lawyers say that element of the issue

at its best” for leaving it up to the states to

is likely to develop in the federal courts over

decide what to do about gay marriage.

interpretation of the full-faith and credit or equal protection clauses of the Constitu-

That is what is happening in Massachusetts,

tion. Although the Supreme Court has so far

where at least 3,000 gay couples have wed

stayed out of the fray, lawyers say it might

since the state Supreme Court’s ruling last

choose to get involved at that point.

year. Now, the state Legislature is moving to amend the Massachusetts Constitution to ban gay marriages but recognize “civil unions” of same-sex couples. Passage of an amendment will take at least two years, requiring approval by the Legislature in a second consecutive constitutional convention and then approval by state voters in a referendum.

The issue is heating up in other states, and Jacques predicted other court rulings similar to the one in Massachusetts. Lambda Legal has filed lawsuits in California, New Jersey, New York, and Washington on behalf of same-sex couples who seek a legal right to marry.

In California, San Francisco Mayor Gavin Newsom began issuing same-sex marriage licenses last February. The California Supreme Court ruled in July that the licenses were null and void because, it said, Newsom had no authority to issue them.

Same-sex marriage advocates have since filed several lawsuits challenging the constitutionality of California’s marriage laws.

Liberty Council filed a brief in November arguing that the marriage laws are constitutional. It asserted that “sexual orientation” is not a protected class and therefore does not receive heightened protection under the law.

Meanwhile, an aspect of the same-sex marriage issue still untested in the courts is whether other states will recognize the marriage licenses of gay couples who were legally wed in Massachusetts. At present,

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