Gay marriage fight shifts to the states
By Richard Wolf
(RNS) The legal battle over same-sex marriage has shifted from the Supreme Court to state capitals and lower courts as supporters seek to build on their recent victories and opponents hope to thwart that progress.
Armed with Justice Anthony Kennedy’s decision striking down the Defense of Marriage Act, lawyers representing same-sex couples filed a lawsuit in Pennsylvania on Tuesday (July 9), and vowed to follow with others in North Carolina and Virginia.
Those cases will be added to at least 11 pending from New Jersey to Hawaii.
“There are a lot of cases out there,” said James Esseks, director of the American Civil Liberties Union’s LGBT & AIDS Project, which filed the Pennsylvania challenge. “It’s quite clear to me that this issue is headed back to the U.S. Supreme Court and is likely to get there sometime over the next several years.”
On Thursday, Pennsylvania’s attorney general, Kathleen Kane, said she would not defend the state against a lawsuit to overturn a ban on same-sex marriage, following in the footsteps of attorneys general in Illinois and California who also declined to defend their states in similar cases.
The flurry of activity is prompted in part by what gay-rights groups see as the long-term implications of Kennedy’s ruling. If federal benefits cannot be denied legally married same-sex couples, they say, states ultimately cannot deny gays and lesbians the right to marry.
The legal and legislative efforts are welcomed by opponents of same-sex marriage, who worry that the high court’s ruling has left lower courts in limbo.
Although the soaring rhetoric in Kennedy’s opinion seemed to make any discrimination against same-sex marriages unconstitutional, the ruling reiterated states’ jurisdiction over marriage policy. That could help opponents in state and federal courts that are less inclined to sanction same-sex marriage than those in states such as New York and California.
“I’d like to see this settled,” said John Eastman, chairman of the National Organization for Marriage, which opposes same-sex marriage. If judges rule against the new challenges — as district courts already have done in Nevada and Hawaii — “then that will stop the train for the time being and give Congress an opportunity to weigh in.”
Both sides have stepped up their lobbying efforts. The Human Rights Campaign, the nation’s largest gay-rights organization, sent officials to Arkansas, Mississippi, North Carolina and Virginia this week to highlight what it calls the “two Americas” left in the wake of the Supreme Court’s verdicts in late June.
While same-sex couples can marry in 13 states — including California, following the high court’s procedural ruling in late June against the state’s marriage ban — they are precluded in the others, including the entire South. The group is seeking to reverse state laws and repeal constitutional amendments barring gays and lesbians from marrying.