Political battles over gay marriage still spreading

Same-sex marriage may have been trounced in the recent elections. But it is far from dead as a political and legal issue.

Following this month's clean sweep in 11 states, amendments banning gay marriage are likely to be on the ballot in at least a dozen more states in 2006, advocates say.

But not without a fight. Some of the just-passed measures already are being challenged in court. Lawmakers in California are discussing same-sex marriage laws patterned after the controversial court decision in Massachusetts. Lawsuits in New York, Connecticut, New Jersey, and Washington State seek the same result.

More broadly, the whole issue of same-sex couples, as well as the rights and definition of marriage, is coming under increased scrutiny as judges and state legislatures weigh in.

A Vermont family court just ruled that a lesbian couple that broke up their civil union must share custody of one woman's daughter. Michigan lawmakers are promoting premarital education. "Covenant marriages," meant to counter the ease of getting a "no fault" divorce, are spreading. Under pressure from conservatives, publishers of textbooks in Texas recently agreed to refer to marriage as a "lifelong union between a man and a woman."

Looking ahead to 2006, opponents of gay-marriage anticipate that 12 to 15 states will vote on the matter. And as was the case in nine of the 13 state amendments passed since August, most ballot measures are likely to target officially sanctioned civil unions and other nonmarriage forms of domestic partnership as well.

"We think marriage should be protected, not just in language but in full effect," says Shannon Royce, executive director of the Marriage Amendment Project.

Gay-rights activists are reeling from the vote, which saw 14 million people (67 percent of those presented with amendment measures this month) reject same-sex marriage.

"Let's not pretend it doesn't hurt," says Matt Foreman, executive director of the National Gay and Lesbian Task Force. "We need to step back, reflect, and process why the margins of loss in most of the states were depressingly large, where we should go from here, and how we are going to get there."

For one thing, Mr. Foreman told the group's annual conference in St. Louis just days after the election, gay-rights advocates failed to build sufficient grass-roots support before it began lobbying lawmakers and filing lawsuits - leaving the impression that marriage was the main issue for them.

"If the movement had been thinking clearly, we would have had a political and public education strategy that preceded the legal strategy," he said. "That obviously didn't happen."

At the federal level, White House political powerhouse Karl Rove says President Bush will push the controversial amendment to the US Constitution banning gay marriage. For one thing, they want to keep their base energized in order to expand GOP margins in House and Senate in 2006 - or at least to keep them from slipping, which is usually what happens in midterm elections.

Advocates of the amendment (which will be reintroduced in the new Congress) picked up support among newly elected senators and representatives - a sure majority in the House and a likely majority of the Senate, although both chambers have considerable distance to go before reaching the two-thirds majority necessary to amend the Constitution.

At the same time, some lawmakers apparently are feeling the heat of the state ballot measures. At least one member of Congress changed his position to support the amendment after voters in his state overwhelmingly approved such a ban on gay marriage in the state constitution.

"We will see more of that effect," predicts Ms. Royce of the Marriage Amendment Project, a coalition of some 50 conservative religious groups.

Still, it's a tricky issue.

Most Americans oppose gay marriage. But they're also against a US constitutional amendment. And most approve either legalizing same-sex marriage or officially sanctioning civil unions for such couples, according to exit polls in this month's election. Even Mr. Bush has spoken approvingly of state-established civil unions for gay couples.

At the local level, and despite the recent votes to ban gay marriage, indications are that Americans are changing their attitude about gay rights in a direction generally considered to be more tolerant, if not liberal.

Ten years after they forbade the Cincinnati city council from ever including homosexuals in the city's human rights laws, voters there just voted to overturn that law. The Topeka, Kan., city council recently approved an ordinance prohibiting bias in city hiring or employment based on sexual orientation. Voters in Idaho and North Carolina - not exactly bastions of liberalism - elected their first openly gay lawmakers, and voters in Dallas chose an openly gay Hispanic woman as county sheriff.

Meanwhile, what happens to the thousands of same-sex married couples in states like Oregon, which subsequently voted to ban such marriages?

For a time this year, officials in Multnomah County (the Portland, Ore., area) declared that gay marriages were legal. By the time a state judge stopped the practice pending a court case to determine its legality, 2,961 same-sex couples had been married. Given recent passage of the ballot measure banning gay marriages, the Oregon State Supreme Court has asked both sides whether the case is now moot.

Promoters of the just-passed ban on gay marriages say the case is moot, adding that those 2,961 same-sex marriages are illegal. Nor, they say, can the case simply be converted to one addressing civil unions. Acting on behalf of gay and lesbian couples, the American Civil Liberties Union argues the opposite position.

The ACLU also is representing gay couples seeking equal treatment under the law in Alaska, Connecticut, Florida, Indiana, Montana, and New Jersey.