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The Gay Marriage Race: Which State Will Be Next?

by Cody Lyon

EDGE Media Network Contributor

Thursday June 5, 2008

Whither California, the nation? That's the question LGBT activists and just-plain folks across the country are asking. Will legalizing marriage in the California Republic set off a wave of such actions across the country? Judging from what happened in New York, it may already have. EDGE analyzes the move toward (and away from) gay marriage state by state and handicaps the race to be next in line to the altar.

When California's highest court ruled in May that gay marriage was legal in the state, it put in motion what is expected to be a stampede of couples from other states. Indeed, there have been several articles about businesses rubbing their hands with glee over the out-of-state dollars to decision will bring into a depressed local economy.

Even with the damper put on the festivities by the approval of a ballot initiative to annul the decision, the months between June and November, when it comes before voters, will see thousands of same sex couples from across the nation traveling to California and utilize the benefits of the State Supreme Court ruling.

The reason is simple: California, unlike Massachusetts, is the first state to allow couples from other states to come there and take advantage of the landmark ruling's benefits and return home. In most cases, at least for now, the certificate they hold will only convey local or symbolic benefits.

Despite that major caveat, in mid June, local officials throughout the state will begin issuing marriage licenses to same sex couples from anywhere. That in itself will perhaps inspire a brand new gay meaning to California Dreaming all across the land.

"I wouldn't be surprised to see 10, 20 maybe up to 30 thousand couples traveling here between June and November," said Brad Sears, Executive Director at the Williams Institute at UCLA. That's a lot of floral arrangements and honeymoon suites. "The vast majority will return to states that don't recognize their marriage," he added.

Still, shortly after the California Supreme court decision, on the other side of the country in the nation's second-most populous state, New York, LGBT ally Governor David Patterson instructed all state agencies to recognize same sex marriages from other states as valid. Paterson's unprecedented action, which is being challenged in court by religious groups and some GOP legislators, adds yet another nugget of hope and some bi-coastal headway into the complicated horse race to eventual full marriage equality in the United States.

LGBT celebratory bells and whistles over the May California Supreme court decision were due in large part to the landmark and bellwether nature of a decision coming from the country's exporter of American culture and social mores. Many activists and supporters of marriage equality are now saying that the court ruling's impact could be several fold.

Court Action: to the Top
First, California courts have a heavy influence on other state courts and legislative bodies. Perhaps more importantly, it may change public opinion to an acceptance of the inevitability of gay marriage, no matter how begrudging.

All agree, the road to full marriage equality will be a yearlong process that follows a map of state-by-state activism and struggle. Eventually, the courts will pass it off to an eventual federal solution-provided fast-evolving public opinion in our favor prevails in the ballot box.

"The thing that could really bring uniformity to this issue is that the United States Supreme Court would decide that its against the federal constitution that marriage is restricted to just men and women," Sears pointed out.

But Sears cautions that he does not see that national victory line being crossed anytime soon.

"I don't see that happening without their first being a lot of court and legislative development on the state level, " he said. "The court tends to first take the temperature of the states on social issues. Look at when they (the court) said sodomy laws were un-constitutional."

"At the time of the 1986 Bowers vs. Hardwick case, about half the states still had sodomy laws and the national court ruled that sodomy laws were still constitutional."

But by the time of the landmark 2003 Lawrence vs. Texas case, when the court revisited the issue, only 13 states had sodomy laws. The court then ruled them Un-constitutional. Sears sees the marriage process going on for three to five years before the Supreme Court tackles it.

That state-by-state process has been playing out for more than a number of years already. In fact, a number of LGBT activists and others have been calling for marriage equality among same sex couples since the 1960's according to research by the Pew Forum.

It wasn't until 1993, that the Hawaii Supreme Court ruled that an existing law banning same sex marriage would be held unconstitutional unless the state government could show that it had a 'compelling reason to discriminate against gay and lesbian couples. Although that decision didn't immediately lead to a legalization of same sex marriage in the Aloha State, it did spark a national debate.

Over the next 10 years, legislatures in over 40 states passed "Defense of Marriage Acts" (DOMAs). In 1996, President Bill Clinton signed a federal DOMA that defined marriage for purposes of federal law as the union between a man and a woman. That law also asserted that no state can be forced to legally recognize a same sex marriage performed in another state.

In 2004, a prior 1997 report concerning the Defense of Marriage Act was commissioned by then Senate majority leader Bill Frist. The United State General Accounting Office noted in the '04 report that DOMA provides definitions of "marriage" and "spouse" that are to be used in construing the meaning of federal law-and thus affect the interpretation of a wide variety of federal laws touching on marital status.

The report identified a total of 1,138 federal statutory provisions classified to the United States code in which marital status is a factor in determining or receiving benefits, rights and privileges.

Then Came Massachusetts
After the federal defeat and a fade from the spotlight for a few years, the movement towards marriage equality burst back into public consciousness as far away as possible from Hawaii, in New England. The marriage movement regained its footing and received a boost in Massachusetts in 2003 when that state's Supreme Court ruled that the state's Constitution guaranteed same sex couples the right to marry.

Almost immediately after, mayors of some municipalities that included tiny New Paltz, N.Y., and San Francisco, took it upon themselves to issue marriage licenses. Social conservatives had a fit and organized.

The backlash to the Massachusetts decision was immediate. A wave of 26 states passed amendments to their constitutions that prohibited same sex marriage. But around the same time, a court challenge to California's ban on same sex marriage of marriage was climbing through that state's court system.

Eventually, it would led to the states Supreme court hearing a case in March, and by May, the court had ruled favor of marriage equality. "The California ruling is of enormous importance both because it is so powerful and solid coming from a careful, cautious and highly respected court," said Evan Wolfson, the civil rights attorney and Executive Director of Freedom to Marry. "The influence that will that this decision will have in helping Americans to see families helped and no one hurt couldn't be bigger," he said.

Cody Lyon is a New York freelance writer whose work has appeared in a number of national daily newspapers and New York weeklies. Lyon also writes a political opinion blog at