Marriage Wars Continue -- More State Constitutional Bans Likely
by Ed Vitagliano
April 5, 2005
(AgapePress) - Same-sex marriage has been one of the most contentious issues of the last 18 months, insinuating itself into state and federal legislatures, a presidential campaign, countless church sermons and legal battles. Yet an end to the rancor seems faraway.
The courts have been the primary battleground for homosexual activists. Their narrow 4-3 victory before the Massachusetts Supreme Judicial Court legalized same-sex marriage in the U.S. for the first time in history. They have been pounding away elsewhere ever since.
The good news for pro-family groups is that "gay" activists have not yet been successful in breaking through as they did in Massachusetts. For example, in January the high court in Louisiana validated the constitutional amendment passed by voters last September, overruling a lower court which had struck down the vote. The ban had passed overwhelmingly by a 78 percent to 22 percent margin.
In Indiana, that state's Court of Appeals also turned back a court challenge to a law forbidding same-sex marriage. In January, the court ruled that heterosexual marriage served a legitimate state interest "in encouraging opposite-sex couples to procreate responsibly and have and raise children within a stable environment."
The three homosexual couples who challenged the Indiana law subsequently said they would not appeal the decision.
Activists haven't had any better luck in federal courts. Also in January, Federal District Judge James S. Moody rejected a demand by two lesbians, who were married in Massachusetts, to strike down a Florida law banning same-sex marriage.
Moody also rejected their request that he declare unconstitutional the Defense of Marriage Act. That measure, which was passed in 1996 by Congress and signed into law by President Bill Clinton, states that no state can be forced to recognize a same-sex marriage performed in another state.
Ellis Rubin, the attorney for the lesbian couple, has promised to fight the case all the way to the U.S. Supreme Court.
Homosexual activists may have gotten a foothold in New York, however, after a Manhattan trial court ruled that the state's constitution does not allow marriage to be limited to heterosexual couples. The judge, Justice Doris Ling-Cohan, who also sits on New York's Supreme Court, said in her ruling: "Similar to opposite-sex couples, same-sex couples are entitled to the same fundamental right to follow their hearts and publicly commit to a lifetime partnership with the person of their choosing."
The ruling will be appealed, and since two other county courts in New York have ruled against same-sex plaintiffs, the matter is sure to come before the state Supreme Court.
As a result of such court cases, cultural conservatives carry deep concerns that activist judges will usurp the authority to define marriage and legalize same-sex unions. In response, there has been a determined push at state and federal levels to keep the matter in the hands of voters.
In 2004, 13 states voted to place a same-sex marriage ban in their constitutions, and similar attempts to do so are on the horizon. Kansas put such a ban before its voters on April 5 (today). Alabama, Indiana, Virginia and Wisconsin also appear to be on the verge of passing similar measures. In Idaho, however, a constitutional ban failed to attract enough votes in the Senate.
According to Matt Foreman, executive director of the National Gay and Lesbian Task Force, other states are poised to add a state constitutional ban on "gay" marriage. He told The Advocate that those states, including Arizona, Florida, Massachusetts, Minnesota and Tennessee, are at risk of putting such bans before voters in 2005 or 2006. In the two years beyond that, another five to ten states might do the same thing.
"It's going to be a tough slog for the next four or five years," Foreman said. "We're going to be on the defensive."
Ed Vitagliano, a regular contributor to AgapePress, is news editor of AFA Journal, a monthly publication of the American Family Association. This article appeared in the April 2005 issue.
