Gay Marriage Patchwork Seen as Courts Wrestle With Ruling

New Jersey same-sex couples won a court ruling recognizing a right to wed while an Illinois judge allowed a challenge to that state’s ban on the practice to move forward over the objections of a handful of county clerks.

The decisions issued yesterday advance the state-by-state battle over gay marriage in the wake of a June U.S. Supreme Court ruling that said the federal government couldn’t discriminate against gay couples and didn’t address the constitutionality of state bans on same-sex unions.

“Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution,” Superior Court Judge Mary Jacobson in Trenton said, provisionally making her state the 14th in the U.S. to grant that right.

Jacobson delayed implementation of her ruling until Oct. 21, allowing the state time to appeal and seek a stay. Republican Governor Chris Christie last year vetoed a same-sex marriage bill, saying the issue should be decided by voters, and his office said he’ll appeal yesterday’s ruling.

“Since the legislature refused to allow the people to decide expeditiously, we will let the Supreme Court make this constitutional determination,” Christie’s spokesman, Michael Drewniak, said yesterday in a statement.

‘Just’ ‘Fair’

“While the governor says he’s going to appeal, that will just determine whether this happens sooner or later,” Larry Lustberg, an attorney representing Garden State Equality, said at a rally last night in Montclair, New Jersey. “We’re going to win time and time again. That’s what is just and fair.”

Marsha Shapiro, 59, of South Brunswick, and her partner of 24 years, Louise Walpin, 60, were among the couples who filed the lawsuit.

The two entered into a civil union in 2007. When their 20-year-old son Aaron, Shapiro’s biological child, died of complications from cerebral palsy as well as lifelong seizure and cognitive disorders in 2008, they said they had to explain what a civil union was to the funeral director.

“No one should ever have to lose a child but to have to go through the indignity of having to explain your relationship when all you want to do is grieve is just horrible,” Walpin said. “When you just say you’re married, people understand it.”

New Jersey and Illinois are two of 17 states where gay marriage proponents are clashing in court with state governments and with citizens’ groups whose avowed purpose is to preserve what they call “traditional” heterosexual marriage.

Law Unsettled

With the high court having left the law unsettled, one or more of those cases will likely furnish the justices with another opportunity to decide if gays have a fundamental right to wed.

“Everybody expects that eventually, the U.S. Supreme Court is going to hear the issue,” said Camilla Taylor, one of two lead lawyers in the Illinois case. “The important thing is to try to prepare the day for that decision.”

While same-sex weddings will now be allowed in 14 states and the District of Columbia, 29 have constitutional amendments prohibiting it and six have made it illegal by law.

The Supreme Court’s June ruling invalidated that part of the 1996 federal Defense of Marriage Act that said the U.S. government could only recognize those marriages between one man and one woman.

That same day, the high court rejected an appeal of a trial court ruling invalidating a constitutional ban created by voter referendum in California.

Minnesota, Pennsylvania

Since then, laws allowing gay couples to marry have also taken effect in Minnesota and Rhode Island, while new lawsuits were filed in Pennsylvania state court, and in federal court in Virginia and South Carolina. Cases challenging Nevada and Hawaii’s bans are before the U.S. Court of Appeals in San Francisco.

In denying yesterday a defense motion to dismiss two lawsuits filed last year, state court Judge Sophia Hall in Chicago said the 25 plaintiff gay couples “presented sufficient facts to warrant further consideration of the question of whether their fundamental right to marry in Illinois includes the right to chose to marry a partner of the same sex.”

In New Mexico, the only state without a law allowing or prohibiting same-sex marriage, county clerks last month began issuing marriage licenses to gay couples. On Oct. 23, the state’s supreme court is set to hear arguments on whether that can continue.

Political Map

The legal map can largely be traced over the political one. All 14 states now allowing same-sex marriage were carried by President Barack Obama, a Democrat, in the 2012 election. Of the 24 states won by his Republican opponent, Mitt Romney, 21 have bans against gay marriage secured in their constitutions and three bar it by statute. Eight states Obama won also have constitutional bans.

“The geographic turf war is even more pronounced than the number of states that have passed same-sex marriage suggests,” John C. Eastman, chairman of the Washington-based National Organization for Marriage, said in a phone interview. His group opposes same-sex marriage.

“The narrative that this is all a one-way street is just patently false,” Eastman said. “There’s a groundswell of a political movement that wants to defend traditional marriage.”

The Supreme Court’s ruling changed the climate for discussion of gay marriage, said William C. Duncan, a lawyer who leads the Lehi, Utah-based Marriage Law Foundation. That change, he said, has come even as the narrow scope of the high court decision allows state court judges to ignore it.

Patchwork

“Either we have a national policy or we end up with a patchwork,” Duncan, whose group opposes same-sex marriage, said in a phone interview.

A Gallup poll taken in July found that 52 percent of Americans, including 70 percent of Democrats, said they would vote for allowing gays and lesbians to marry. Forty-three percent said they would vote against it, as did 66 percent of Republicans surveyed.

The state constitutional amendments were attempts by opponents of same-sex marriage to cement their view into law while it was politically dominant, said Andrew Koppelman, a law professor at Chicago’s Northwestern University law school.

Repealed Measures

Some of the measures will be repealed by referendum while others will be struck down by courts, he predicted.

“We’re talking about a patient that has multiple fatal diseases,” Koppelman said. “I can’t tell you which is going to get him first.”

As recently as 2003, same-sex marriage wasn’t recognized anywhere in the U.S. When the Supreme Court that year reversed a 1986 ruling upholding a Georgia law criminalizing consensual sodomy, 13 states still had laws making it a crime, Taylor said.

Massachusetts, after a 2003 ruling by its highest court, became the first state to allow same-sex marriages in 2004.

“We have moved with lightning speed,” said Taylor, who leads the national Marriage Project for the New York-based Lambda Legal Education and Defense Fund Inc., which is suing Illinois in tandem with the American Civil Liberties Union.

Roberta Kaplan, the New York attorney who argued and won the DOMA case for her client, Edith Windsor, called the inconsistency of state laws “intolerable.”

Tax Bill

Windsor sued over a $363,000 federal tax bill that followed the 2009 death of her spouse, Thea Spyer, whom she married in Canada. While their home state of New York recognized the marriage, under DOMA, the U.S. didn’t, creating the tax liability.

Kaplan predicted opposition to same-sex marriage will ebb.

States now straddling the issue, including Hawaii and Colorado, will reform their laws to retain skilled professionals, and others will follow, she said.

“Some states aren’t going to move,” Kaplan said, probably in the Deep South, she added. “That’s when the issue will really be for the court to decide once again.”

Illinois affords same-sex couples some legal benefits through civil unions.

Patrick Bova, 75, and his partner, 81-year-old U.S. Navy veteran James C. Darby, are two of the lead plaintiffs suing Illinois. While some of their gay friends have traveled outside Illinois to marry, Bova said he and Darby are staying put, at least for now.

“We are staying here and hoping,” he said in a phone interview. “We’re not going to Iowa, not going to Minneapolis, although that’s tempting. Not going to New York.”

Concealed Relationship

Bova said he and Darby met 50 years ago and concealed their relationship until about 20 years ago. He said he enjoys the growing acceptance of same-sex couples.

“It’s freedom,” Bova said. “It feels wonderful. I don’t have to worry about that. I don’t have to hide.”

One benefit of being able to marry, Bova said, would be the right to be buried side by side at the Abraham Lincoln National Cemetery in Elwood, Illinois, where veterans are interred.

Five county clerks defending the Illinois law are represented by Paul B. Linton of the Chicago-based Thomas More Society, a Catholic-oriented public interest law firm. Linton’s group took up the case after Illinois Attorney General Lisa Madigan, a Democrat, declined to fight the tandem lawsuits filed by Lambda and the ACLU.

Illinois Lawmakers

Illinois lawmakers passed the gay-marriage ban to further responsible procreation and the “ideal” of having children raised by their biological mothers and fathers, Linton told Hall at a hearing on Aug. 6. The law was reasonably related to those state interests, he said.

“They get the law wrong,” Taylor countered in court. “They reject the notion there is a fundamental right to marry the person of their choice.”

Pennsylvania Attorney General Kathleen Kane, a Democrat, has also said she won’t defend her state’s same-sex marriage ban.

After then-California Attorney General Jerry Brown and his successor, Kamala Harris, both Democrats, refused to defend Proposition 8, the initiative banning gay marriage in that state, the Scottsdale, Arizona-based Alliance Defending Freedom took the case. The Supreme Court ruled its client, a group that sponsored the proposition, couldn’t stand in for the state, because it hadn’t suffered a particular injury.

Supreme Ruling

The Supreme Court’s ruling on DOMA hinged on whether the federal government could treat gay married couples differently from heterosexual ones. Writing for the majority, Justice Anthony M. Kennedy said DOMA’s intent was unconstitutional discrimination.

The opinion didn’t question states’ traditional role of regulating marriage.

Justice Antonin Scalia called the majority’s deference to state law a “pretense.”

“No one should be fooled; it is just a matter of listening and waiting for the other shoe to drop,” Scalia said, contending the majority was setting the stage for a ruling granting same-sex marriage rights nationwide.

Eastman, who is also a professor of law at Chapman University in Orange, California, said his group’s goal is to ensure that shoe does not drop. If Kennedy’s ruling truly turned on principles of federalism, he said, then differences among the states will persist.

Republican Strongholds

Twenty of the states with constitutional amendments barring gay marriage also prohibit any legal recognition of same-sex couples. Some of those states, including Texas and Florida, have Republican governors, attorneys general and majorities in their legislatures.

Gay marriage opponent Linton agrees with proponent Taylor that the Supreme Court may let the issue play out in the states, at least for a time, before it takes up the issue again.

“At some point they may have an obligation to take one of these cases,” Linton said. “They owe it to the country, down the road, to decide it, because it’s going to continue to be litigated.”

The New Jersey case is Garden State Equality v. Dow, L-001729-11, New Jersey Superior Court, Mercer County (Trenton). The Illinois cases are Darby v. Orr, 12-CH-19718, and Lazaro v. Orr, 12-CH-19719, Cook County, Illinois, Circuit Court, Chancery Division (Chicago).

To contact the reporters on this story: Andrew Harris in Chicago at aharris16@bloomberg.net; David Voreacos in Newark at dvoreacos@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

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