A decade after Mass. ruling, big gains on same-sex marriage, but opponents not giving up
BOSTON In the decade since the highest court in Massachusetts issued its landmark ruling legalizing same-sex marriage, 14 other states and the District of Columbia have legalized it, with Illinois poised to become the 16th in a few days.
Such gains were considered almost impossible before Massachusetts opened the door on Nov. 18, 2003, with a Supreme Judicial Court ruling that declared a ban on gay marriages unconstitutional. Opponents made doomsday predictions about how gay marriage would damage traditional marriage and lead to problems with children raised in same-sex households.
But as the years have passed, public opinion has shifted. Supporters have won in the courts, in state legislatures and on state ballots amid intense lobbying, activism and advertising campaigns filled with gay couples personal stories.
With more same-sex marriages, you saw more people changing their minds, said Mary Bonauto, civil rights project director at Boston-based Gay & Lesbian Advocates & Defenders and the lead attorney on the lawsuit that resulted in the gay marriage ruling in Massachusetts.
Seeing gay people with their extended families, seeing the commitment, thats what has turned this around.
Opponents have shifted tactics as more and more states have legalized gay marriage. Initially, opposition focused on the predicted erosion of traditional marriage, but in recent years have pushed concerns about school curriculums and religious objections.
In New Mexico, the state Supreme Court ruled in August that an Albuquerque business owned by gay marriage opponents violated a state anti-discrimination law when it refused to photograph a same-sex couples commitment ceremony. A law firm representing the business has asked the U.S. Supreme Court to hear its appeal.
Opponents say they plan to do a better job of telling similar stories of people who believe their religious freedoms have been infringed upon by the legalization of same-sex marriage.
I think we still have to do litigation, we still have to do legislation, but we also have to do education as well, said Mathew Staver, founder and chairman of the Christian legal group Liberty Counsel.
Since same-sex marriages began in Massachusetts in 2004, approximately 100,000 gay couples have gotten married across the U.S., said Lee Badgett, a professor of economics at the University of Massachusetts-Amherst. At least 16,000 of the marriages have taken place in Massachusetts.
Evan Wolfson, founder and president of Freedom to Marry, said 38 percent of Americans will live in states where same-sex marriage is legal once Illinoiss governor signs the bill on Wednesday. The group has a goal of bringing that up to more than 50 percent by the end of 2016.
What we have to do like other civil rights movements and social justice causes is win a critical mass of states and a critical mass of public support, which together creates the climate for the Supreme Court to bring the country to national resolution, Wolfson said.
Wolfson said Oregon is expected to be a key battleground in 2014 as supporters hope to repeal a constitutional ban on gay marriage passed in 2004 during a rush of similar amendments in other states after the Massachusetts ruling.
But Staver said he believes the momentum of the gay marriage movement will slow.
Same-sex marriage represents a classic conflict with religious freedom, he said. I think there will come a tipping point where the pendulum will swing the other way as people begin to see the impact of same-sex marriage.
How One Lawyer Turned The Idea Of Marriage Equality Into Reality
On the amazing Mary Bonauto (long read, but totally worth it)
PORTLAND, Maine Ten years after the Massachusetts Supreme Judicial Court ordered that the state become the first in the country to allow same-sex couples to marry, the once-feared concept has gained mainstream popular support, is recognized by the federal government, and is now the reality in 15 states and Washington, D.C.
Without Mary Bonauto, however, marriage equality might never have happened.
The lawyer brought marriage equality cases in Vermont, Massachusetts, and Connecticut. She argued the case to the justices in Massachusetts who brought marriage equality to the United States. She won the first decision striking down the Defense of Marriage Acts federal definition of marriage, and the first appellate decision too a ruling that forced the issue before the U.S. Supreme Court earlier this year. If theres been a big moment in marriage equalitys long march to reality, Bonauto was probably there.
And its no secret either: The movements other leading lawyers openly credit Bonauto for making the success possible.
Evan Wolfson, the lawyer who served as co-counsel in the Hawaii case that started the marriage equality discussion in full force back in the 1990s and now runs Freedom to Marry, gives Bonauto credit as the lawyer who was able to deliver it. Paul Smith, whose argument at the Supreme Court led the justices to end sodomy laws across the nation, says she has been essential to LGBT progress since the 1990s.
For Mary, its all about winning and its not winning for her sake, its winning for the dignity and the equality of gay people, says Roberta Kaplan, the attorney who argued against DOMA at the Supreme Court this year. And everything that she has done in her career everything has been focused on that objective.
Marriage equality at 10: Q&A with Margaret Marshall, who wrote the landmark state ruling allowing gays to wed
GAZETTE: What kinds of debate went on behind the scenes?
MARSHALL: You know I cant talk about that. I think there is an important reason why the discussions among justices are confidential. To the extent that anything is ever written about Goodridge, I hope it will be after the last justice who ruled on the case is deceased. I have left all of my papers to the Radcliffe Institute, and the Goodridge papers will not be opened until after the last justice is deceased. One thing I can say is that the Supreme Judicial Court it is a remarkably collaborative and collegial court. The justices always worked hard to make sure that people who read the opinions understood the legal dispute. In the majority opinions and the dissenting opinions in Goodridge, there are no ad hominem attacks by one justice on another. All of the opinions are devoid of any suggestion that a justice reaching a different conclusion is advancing arguments another justice did not respect. Same-sex marriage was an issue that divided our court, and divided every state Supreme Court until the issue reached Iowa, which issued a unanimous decision affirming same-sex marriage. New York and New Jersey, I think, were the next two cases. Both courts issued split opinions. And of course, in the U.S. Supreme Court in [United States v. Windsor] and a related California case, the Perry case, the court was divided. I feel most proud because the differing opinions in Goodridge are devoid of any suggestion that an opposing justice has misread the constitution or has done anything other than express a legal view about a difficult legal issue.
Map of where we are now:
(Gay marriage will be legal in Illinois following the governor signature at a signing ceremony on Wednesday)
What's next:
These Are the Next Gay-Marriage Battlegrounds
New Mexico: Possibly in Time for a New Years Eve Kiss
This Southwest state is the only one in the nation without a law that explicitly allows or bans same-sex marriage. That may soon change. The New Mexico supreme court heard oral arguments on the topic Oct. 23 and is expected to issue a ruling soon, likely before the end of the year. Currently, eight New Mexico counties allow gay couples to marry. More than 900 people have filed for licenses since clerks in those counties started issuing them in the past few months. Two New Mexico judges have upheld same-sex marriage under provisions of the state constitution, giving supporters reason for optimism.
But if the states high court does rule in favor, the fight may not be over. Some state Republicans are creating a plan to strike back by pursing a statewide constitutional referendum to ban the unions. I think the most important thing here is no matter what [the court's] decision is, the issue will not be settled until the people speak, state senator Bill Sharer, a Republican who opposes gay marriage, told the Albuquerque Journal.
Oregon: Wait Until Next Election
The Beaver State has a constitutional ban on same-sex marriage, though it does recognize ones licensed by other states. The progay marriage organization Oregon United for Marriage is currently collecting signatures to get a referendum overturning that ban on the 2014 ballot.
If that happens, a majority of Oregonians are likely to back it. A poll late last year from Democratic firm Public Policy Polling found that 54% of Oregonians would vote in favor of same-sex marriage.
Ohio, Michigan, Pennsylvania, Colorado, Nevada, Utah: Targeting 2016
Activists are hoping to see measures passed or court cases end in their favor in this mix of states by the end of the next presidential election cycle. Though the swing states Ohio and Pennsylvania seem less likely to move than the more liberal coastal states, same-sex marriage is gaining traction in the Midwest. They used to say you could only win in the coast, not in the heartland, Wolfson said. But weve won in Minnesota and Iowa. With Illinois, we have 37% of American people living in a freedom-to-marry state, including states in the heartland with more to come.
Virginia: Tell It to the Judge
Same-sex marriage has been banned in Virginia since 2006, and Old Dominion also doesnt recognize licenses from other states. But the lawyers who helped to overturn Californias ban in the high-profile U.S. Supreme Court case David Boies and Ted Olson agreed to represent two gay men who were denied a marriage license in Norfolk Circuit Court. Having their heft behind, the case has supporters optimistic that Virginia could become the first Southern state to legalize gay marriage.
Newly elected governor Terry McAuliffe, a Democrat, supports same-sex marriage and a majority of Virginians support a repeal of the states ban, according to a Washington Post poll in May. In the poll, 56% of likely voters opposed the ban, while 33% were in favor.
North Carolina: Pressing the Issue
The Tar Heel State voted last year for a constitutional amendment banning same-sex marriage, which passed with 61% of the vote. Lawsuits challenging the ban have been filed, but some government officials arent waiting on the courts. Buncombe County Register of Deeds Drew Reisinger accepted applications for marriage licenses from gay couples because he said he was moved by the U.S. Supreme Court ruling on DOMA. He was eventually stopped by the states attorney general. But support for gay marriage in the state is on the rise: a poll released in September from North Carolinabased Elon University found that 43% of North Carolinians back it, a 5% increase in seven months.
Mississippi, Texas, Tennessee: Not Anytime Soon
Many cases are pending in the Deep South, but it will likely be a few more election cycles before any significant changes are made in these states. In Mississippi, lawyers for a woman who is suing the state in order to divorce her wife (whom she married legally in California) have tried to reassure citizens that they are merely trying to allow gay couples married elsewhere to split, rather than seeking a backdoor to gay marriage in the state.
Same-sex-marriage advocates cite a Human Rights Campaign poll this year, which found that 58% of Mississippi residents under 30 favor gay marriage, as evidence that attitudes in the state are changing. Legislation, however, remains a long shot in the short term.
Interactive timeline of gay rights movement throughout the 20th and 21st century
