In a relatively short time, the number of states giving gay couples the right to marry doubled from two to four. On Thursday, New York put in a bid to become the fifth.
Gov. David Paterson announced his determination to shepherd a "marriage equality" bill through the state legislature this year, in order to build on the momentum generated earlier this month by the legalization of gay marriage in Iowa and Vermont.
"For too long, the gay and lesbian communities have been told their rights and freedoms have to wait," the Democratic governor said Thursday, framing the issue as a civil rights issue as compelling as the 19th century battle for abolition. "This is the real reform, and the time has come to act.... The time has come to bring marriage equality to the State of New York."
Of the states where same-sex marriage is legal, only Vermont adopted it through the legislative process. In Iowa, Massachusetts, and Connecticut, the courts have ruled that it could not be prohibited under their constitutions.
During the past decade, state legislatures have sided overwhelmingly with those who oppose gay marriage. Forty-four states have enacted laws that define marriage as between a man and a woman, known often as Defense of Marriage Acts (DOMAs). Thirty others have amended their constitutions to define marriage in a similar way.
In a sign that momentum may be shifting toward gay rights advocates, bills that would legalize marriage between same-sex couples are pending in Maine and New Hampshire as well as in New York. Illinois lawmakers are considering a bill that would create civil marriages, and Minnesota is looking at a proposal to make marriage gender-neutral. If approved, each would have the effect of allowing gays to marry.
"As couples start to marry for real, much of the public are finding their day-to-day lives aren't changing very much, and that's helping to deflate the rhetoric from opponents of gay marriage," says Dan Hawes, director of organizing at the National Gay and Lesbian Task Force. "The events of the last several weeks in two such really very different places show the building of momentum."
But, pointing to the 30 states with DOMA amendments, opponents of same-sex marriage say they are confident that legalization will remain confined to a few states.
"If there really is any momentum, it's going to encounter some pretty serious obstacles," says William Duncan, director of the Marriage Law Foundation in Lehi, Utah. "We're talking about a handful of states [that may legalize same-sex marriage] that are pretty unique in terms of their political and social climate."
Courts and minority rights
Historically, courts often have acted to define legal protections for minorities, such as in legalizing interracial marriage or desegregating schools, before legislatures. Such rulings have helped to change public perception of an issue, and subsequently, prompted legislative action.
Gay-marriage advocates point to the court rulings in their favor and say they are in keeping with the judiciary's historical role as the protector of minority rights that a popular vote might disallow.
"Initially, gay marriage was clearly in the domain of the courts because there really was no hope that legislatures or executives would act in the area," says Kenneth Sherrill, a political scientist and gay rights advocate at Hunter College in New York. One impact of the court rulings in Connecticut and Iowa, he says, "is that legislators came to realize this is a serious issue involving real rights. It wasn't a frivolous demand by a fringe group."
Opponents of same-sex marriage bristle at framing the issue in terms of civil rights. Civil unions, same-sex registries, and an array of other legal options are available to ensure that gay and lesbian couples have the same rights as heterosexual couples, they say.
"The issue isn't access to the benefits or rights or status. The issue is the word marriage, and the redefining of the word, and the whole institution of marriage," says Carrie Gordon Earll, spokesperson for Focus on the Family, a conservative Christian foundation in Colorado Springs, Colo.
Ms. Earll says gays and lesbians do not constitute a disadvantaged minority in the traditional sense of the word because of their generally good economic status. "They're trying to equate themselves with a disadvantaged minority, and, clearly, if you look at the demographics of the homosexual community, it's not a disadvantaged community," she says.
New York Mayor Michael Bloomberg (I), who joined Paterson Thursday in supporting the marriage equality bill, disputed that. The city already has taken steps to support same-sex couples, such as allowing them the right to list both of their names on a child's birth certificate, ensuring that they have pension benefits, and legally recognizing same-sex marriages and civil unions performed in other states, he noted.
"Despite the progress that we've made, we all recognize that gay and lesbian couples are still denied many civil protections and benefits that married couples enjoy," the mayor says. "That's why marriage equality is so important."
Changing public opinion?
Though opponents have used the legislative process to fight gay marriage, they now argue that the decision on legalization is better left to a simple majority vote or ballot initiative.
"That is something that absolutely the people should have a vote on," says Ms. Earll. "It should not be decided by unelected judges or perhaps even out-of-touch elected legislatures."
While bills permitting same-sex marriage are pending in just a handful of states, more than 10 states are also considering proposals that would extend marriage-type benefits to gay and lesbian couples. Washington State has just approved a bill that grants same-sex couples all the rights of marriage, without calling it that.
Gay rights advocates say these developments indicate a shift in favor of same-sex marriage. Legislative experts, however, say it's not yet clear whether measures that would expand rights of gay couples will lead to more states legalizing same-sex marriage.
The question, says Christine Nelson of the National Conference of State Legislatures, is whether such legislation will "chip away and provide little pieces of benefits that ultimately could add up to something more significant."