Gay marriage divide roils states

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.

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