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WASHINGTON — Gay rights litigators say they expect a “long march” to gay marriage in a state-by-state campaign, with some boosts by the courts along the way. On the other side, opponents of gay marriage are pinning their hopes on existing state laws, the federal Defense of Marriage Act and an amendment to the U.S. Constitution. The biggest boost so far to gay marriage came last week when Massachusetts’ highest court held in Goodrich v. Dept. of Public Health, SJC-08860, that the state’s marriage law violated gay couples’ equality and due process rights under the state constitution. The Massachusetts Supreme Judicial Court gave lawmakers 180 days to comply. They now hold the key not only to what happens next, but to how subsequent efforts to achieve gay marriage may unfold. If a new law permits marriage licenses for gay couples, litigators and scholars say, a constitutional challenge to the federal act could follow quickly. If the Massachusetts Legislature opts for something less than marriage licenses, civil unions for example, gay rights litigators likely will turn again to the state high court to enforce its decision. “Our goal has always been access to civil marriage,” said Gary Buseck, executive director of Gay and Lesbian Advocates and Defenders (GLAD), which brought the Massachusetts challenge. “Though you’re going to hear very different perspectives coming out of Massachusetts, to us it’s clear: 180 days from last Tuesday, marriage licenses are required to be issued to same-sex couples who meet the gate-keeping requirements,” he said. “Nothing else will satisfy the mandate of the court.” The situation was very different in Vermont when its high court in 1999 ruled that its state marriage scheme violated the constitutional rights of gays and lesbians. GLAD lawyers, including their lead lawyer in the Massachusetts case, Mary Bonauto, were co-counsel in Vermont. After finding that the marriage law violated the state constitution, the Vermont Supreme Court gave the Legislature the opportunity to remedy it. Civil unions were a legislative compromise, Buseck said. “We worked really hard for marriage, but at some point, it became clear it wasn’t going to be marriage,” he said. “We then worked to make the best possible law it could be.” Civil unions, as opposed to marriage, weren’t the goal and still aren’t. “Our bottom line is marriage is marriage,” Buseck said. “The word itself is part of the bundle of rights that come with this. Why go through this trouble of two separate tracks?” There is no master strategy and no silver bullet for bringing down the 38 state laws and constitutional provisions defining marriage as between a man and a woman. “What happened in Massachusetts is a lot like what happened in California in 1948,” said David Buckel, director of the marriage project at Lambda Legal Defense and Education Fund. “The highest court in that state was the very first one to say it is unconstitutional to ban interracial marriages. It then took 19 years for the march to freedom in all states to finally end in the U.S. Supreme Court in the Loving opinion in 1967. “I think our march is going to be quite similar,” said Buckel, who is among the Lambda Legal lawyers bringing a marriage challenge in New Jersey under that state’s constitution in Lewis v. Harris, MER-L-15-03. STATE ISSUES That is the way it should be, given the development of the nation, said gay rights scholar Chai Feldblum of Georgetown University Law Center. “This is a good issue to think about in terms of how we came together as a country,” she said. “The fact is marriage and family law are all issues that have traditionally been state issues. With the ban on interracial marriage, societal attitudes changed state by state and then ultimately there was a federal statement — by the Supreme Court — that this violated the federal constitution.” David Cruz of the University of Southern California Law School agreed, adding, “Racial civil rights, women’s reproductive rights, even abolition, ended up being fought first state by state until you get to a sufficiently critical mass that the process of nationalization looks like something already accomplished. “I don’t think it looks yet like a fait accompli and, in fact, the introduction in Congress and support for a federal marriage amendment to the Constitution suggests many people still think that’s not the direction our country should go.” Cruz said he expects national gay rights groups to support and encourage voluntary recognition of gay marriage in the 13 states that have not enacted so-called defense of marriage laws. Those laws, like the federal one, generally define marriage as being between members of the opposite sex and refuse to give full faith and credit to laws that recognize gay marriages. “A national strategy is going to be to address particular incidences of marriage-adoption rights, inheritance and the like,” he said. “You can potentially get a court to say that denying you this particular legal consequence is not justified, where they might hesitate to say denying you the actual symbolic status of marriage per se violates constitutional guarantees.” Lambda Legal’s Buckel said hundreds of gay couples have gone to Canada to be married since Ontario’s high court banned marriage discrimination against gays in June. He said no suit has been filed for recognition of a Canadian marriage. “We find our families being very selective about how they move forward to seek respect of their marriages,” Buckel said. “A lot begin with their employers. They want a family health insurance plan. � Or they may seek family discounts at gyms or city pools.” But, he said, “Sooner or later some family will experience some harm they can’t live with, and then I would expect some litigation around Canadian marriage. I wouldn’t be surprised if it happened before Massachusetts issued a license to a gay couple.” If Massachusetts issues such a license, there is the immediate prospect of a constitutional challenge to the 1996 Defense of Marriage Act. MARRIAGE AND LAW “That couple will discover one interacts with the federal government all the time,” said Georgetown’s Feldblum. “There are hundreds of laws, which, if you’re a spouse, you get protections. All of these Massachusetts spouses will be treated unequally to all other Massachusetts spouses. That will be a direct challenge under the federal Constitution.” The federal act defines marriage as “a legal union between one man and one woman as husband and wife.” It says “spouse” refers “only to a person of the opposite sex who is a husband or a wife.” In 1997, the General Accounting Office, at the request of Congress, surveyed federal laws to see which might be affected by the law. It found 1,049 federal laws in which marital status was a factor, everything from food stamps to federal financing of presidential campaigns. Besides discriminating on the basis of sex and sexual orientation, the federal law, according to Feldblum and others, is also constitutionally infirm because it authorizes states to decide for themselves whether to give full faith and credit to other laws permitting gay marriage. “I think there is a significant question whether Congress had constitutional authority to amend the full faith and credit clause into ‘some full faith and credit clause,’” said Feldblum. Congress, she said, “can pass laws to carry it out, but it can’t pass laws to change it.” Matthew Staver, president and general counsel of Liberty Counsel, a public interest law firm defending traditional marriage, countered, “I don’t think the act is vulnerable, but courts are courts. Certainly we’ve seen that in the last several months with Lawrence and Massachusetts. I think Congress does in fact have the ability to give states authority in this particular area.” In June, the U.S. Supreme Court struck down sodomy laws in Lawrence v. Texas, 123 S.Ct. 2472. Staver said state defense of marriage acts will be challenged before the federal statute. Given his lack of confidence in the courts, his organization is lobbying for a marriage amendment to the U.S. Constitution. It also will push for a state constitutional amendment in Massachusetts, he said. Jay Alan Sekulow, chief counsel of the American Center for Law and Justice, said his organization, like Liberty Counsel, will be “heavily involved” in Massachusetts as well as in Washington on a constitutional amendment. “I suspect if the amendment is properly worded, it will pass Congress,” he said. “The question then is, does it get through the states and through the states in time?” He also is prepared, he said, to defend any challenges to the federal marriage act, which, he predicted, will be challenged in multiple jurisdictions. TO THE HIGH COURT “That act is vulnerable in this context: The lawyers representing gays are very bright and they’re smart enough, in my view, to put enough litigation in different jurisdictions so they’ll get a court somewhere to say the act violates the full faith and credit clause,” he said. “That’s the one that will go to the Supreme Court.” For now, however, he added, both sides will have to see what Massachusetts does. “Much depends on what state lawmakers do now and whether what they do is sufficient to meet the [state] high court’s standard.” “The legal system in America has been through this — interracial marriages, Reno divorces, consanguinity marriages, common law marriage,” said GLAD’s Buseck. “States have worked out how they’re going to deal with this. It’s generally been a fairly long process over a number of years. “We ultimately do work them out.” Marcia Coyle is a reporter for The National Law Journal , a Recorder affiliate based in New York City.

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