The question of same-sex marriage is spreading across the country as a showdown issue involving courts, lawmakers, and activists. And it's not just a spectator event, since much of the public in many states is involved as well.
The latest episode was a ballot measure this week in Kansas, where voters by a wide margin (70 to 30 percent) ordered a change to the state constitution defining marriage as "one man and one woman only." More significantly perhaps, the measure also states that other than a married man and woman "no relationship ... shall be recognized by the state as entitling the parties to the rights or incidents of marriage."
Within that bland legal verbiage critics see a possible threat to civil unions and maybe even the domestic partner benefits currently granted by colleges and universities, Fortune 500 companies, local and state governments and other employers. Whether or not that happens, the new amendment and its possible fallout appear headed for state court, both sides say.
As the issue has elsewhere, it's already caused political and religious controversy. While much of the support for such measures comes from conservative congregations and clergy, significant opposition is faith-based as well.
On the eve of the Kansas vote, more than 100 ministers and other clergy under the umbrella organization "Kansans for Fairness" signed a letter warning that the ballot measure "would hurt people, threaten religious liberty and stifle the diverse religious voices in Kansas."
The Kansas measure is one of the strictest marriage laws in the country today, but it is by no means the only one. Seventeen states already have constitutional amendments prohibiting same-sex marriage, and 23 other states have laws defining marriage as solely heterosexual. Nineteen states are considering constitutional amendments based on the federal Defense of Marriage Act of 1996.
State courts have tended to take a more "liberal" view on issues like marriage, civil unions, and domestic partner benefits. Judges in California, New York, and Washington State, for example, have overturned bans on same-sex marriage, and challenges are being heard elsewhere as well. The American Civil Liberties Union and Lambda Legal have sued in six states on behalf of same-sex couples who want to legally marry. Meanwhile, federal courts are involved as well, including challenges to state constitutional amendments in Oklahoma and Nebraska.
All of this has helped conservatives build support for state legislative action and ballot measures defending traditional marriage against "activist judges." Constitutional amendments are needed, they say, because regular laws can be easily overturned or knocked down in court.
"The only reason this debate is taking place at all is because small groups of homosexual activists have gone to court in an attempt to gain from a small band of judges what they know they could never win through the democratic process," Peter Sprigg of the Family Research Council told a pro-marriage rally in Maryland earlier this year.
And yet some judicial decisions in this area defy political labels while illustrating the complexities of the issue.
In Ohio last week, one judge ruled that the state's new constitutional ban on same-sex marriage conflicts with the state's domestic violence law. The judge threw out a felony domestic violence charge because the man and woman living together aren't married.
In Michigan, meanwhile, Gov. Jennifer Granholm (D) worries that a "legal cloud" now hangs over domestic partnership benefits for state employees. Voters last November amended the state's constitution to ban gay marriage, and state Attorney General Michael Cox (R) last month issued an opinion that the amendment bars such benefits in future contracts with state workers. Twenty-one same-sex couples in Michigan have filed a lawsuit seeking clarification of their benefits.
Along with the Terri Schiavo case, gay marriage also has put pressure on the third branch of government - including warnings of political retaliation - at a time when many judges already are feeling physically threatened in the wake of a recent shootings in Chicago and Atlanta.
Sen. John Cornyn (R) of Texas, a member of the Judiciary Committee, this week warned that judges making "raw political or ideological decisions" may lead some people to "engage in violence." Last week, House majority leader Tom DeLay (R) of Texas said judges "will answer for their behavior" in refusing to order that Mrs. Schiavo's feeding tube be reinserted.
Americans typically are conflicted on the issue. Most don't want to legalize gay marriage, but they also don't want to tinker with state or US constitutions.
The National Annenberg Election Survey at the University of Pennsylvania found last year that by a margin of 60 to 31 percent, those polled do not want to legalize same-sex marriage. Yet by 49 to 42 percent, they do not favor a constitutional ban on such marriages, and a majority (54 percent) approves either gay marriage or same-sex civil unions.
More recently, a CBS News/New York Times poll found that while only 23 percent favor legally recognized gay marriages, 57 percent approve either such marriages or civil unions.