Gay marriage divide roils states

A new ruling by Massachusetts' top court and a constitutional convention here next week are escalating a national debate.

The political divide over gay marriage is escalating in states across the country, and has so far become the focal point of America's culture wars for this election year.

Spurred by a Massachusetts court ruling - reaffirmed this week - that gay marriage is a constitutional right, a backlash is brewing from Georgia to Wisconsin. In an effort to prevent Massachusetts-style court interventions, these states and others are considering moves to define marriage in their constitutions as a union of one man with one woman. Ohio, meanwhile, is poised to enact a law banning civil unions and the awarding of spousal rights to gay couples.

But not all of the new activity opposes new rights for gays and lesbians. Emboldened by legal success in the Bay State, gay- rights advocates are pressing their cause in New Jersey and Arizona.

The result is a burgeoning political fight over one of the most basic concepts in American life - the definition of family and marriage. A key test comes next week, when Massachusetts lawmakers plan to open a rare constitutional convention on the issue. "What we're seeing now is the states tackling this issue with an eye on the fall elections," says John Green, a political scientist at the University of Akron in Ohio. "In a lot of moral issues," state policymaking "works very well."

The legislative maelstrom, combined with President Bush's tacit support for a federal ban on gay marriage during his State of the Union address, point to the growing urgency of the issue on the national stage. It appears to be overshadowing other hot-button social issues such as abortion and school prayer.

A key reason: The sweeping decision last November by the Supreme Judicial Court in Massachusetts - which challenged that state and others to reconsider, with regard to gay rights, constitutional mandates for equal treatment.

With Massachusetts now the central battleground, many states are now watching to see how its legislature addresses the court's order to accommodate gay marriage by May 17, which is also the 50th anniversary of the US Supreme Court's historic decision on school desegregation.

After the court's first ruling in November, which declared restrictions on gay marriage unconstitutional, the legislature had asked if the justices would accept civil unions, which provide similar rights as marriage but under a different name.

The court this week said no. The announcement makes the implementation of civil unions a legislative impossibility here, absent a constitutional amendment. An amendment requires a statewide referendum, which could happen no sooner than November 2006. Lawmakers plan to vote on the amendment next Wednesday.

Although more than 60 percent of state lawmakers are Catholic, many were disinclined to oppose the granting of marriage equality to gay couples, say experts.

Still, some legislators say they are more likely to vote in favor of an amendment now because the court has disregarded their role in the process.

"This is a constitutional struggle right now on whether the bench has the authority to legislate," says Rep. Mark Carron, a Worcester Democrat. [Editor's note: The original version misspelled Carron's name.]

Proponents of many of the amendments in other states agree. They view the Massachusetts decision as only the latest judicial imposition on a variety of cultural issues, ranging from prayer in school, the Pledge of Allegiance, and sodomy.

"What's a court doing trying to tell people what our culture ought to be based on?" asks Rep. Bill Graves (R), the sponsor of an Oklahoma bill calling for an amendment banning gay marriage.

Lawmakers supporting the measures believe amendments will be much more difficult to overturn than legislation, and want to guard against judicial activism within their own states.

"We don't know what the court will look like in five years," says Rep. Henry Kulczyk (R), who offering an amendment in Idaho.

Alaska, Nebraska, and Nevada already have enacted amendments.

Even in conservative states, there is some precedent for state judiciaries to overturn laws limiting gay rights. That was the case in Georgia, where in 1998 the state's Supreme Court struck down a law banning sodomy, a move that the legislature was not able to reverse.

By acting preemptively now, many of Georgia's conservative legislators hope to prevent a similar course of events. If the issue galvanizes voters with a referendum vote this fall, it could also help conservative legislators make political gains.

Gay-rights advocates, in comparison, are moving cautiously after the Massachusetts decision. Individual couples are making the most inroads, say advocates, as they secure partner benefits from their employers. Now, 40 percent of Fortune 500 companies honor partners of gay employees, according to Lambda Legal, a national gay legal organization.

In New Jersey, Gov. James McGreevey (D) recently signed legislation providing gay partners the legal and economic rights of legally married couples. California and Hawaii are the only other states to have done so. Now, at least seven states give public employees partner benefits; 32 have some kind of anti-discrimination law.

A New Jersey appeals court will soon hear a lawsuit brought by seven gay couples, arguing as in Massachusetts that the state constitution protects gay marriage.

But gay advocates do not plan lawsuits nationwide. They are opting for a gradual approach. "The community we serve understands that ... you have to be smart, and on the other hand patient," says David Buckle, senior staff attorney at Lambda.