Though same-sex marriage is racking up victories in state legislatures and federal courts, and gaining public support, especially among younger people, it could be years before gay and lesbian couples can marry in all 50 states.
No current court case will result in same-sex marriage nationwide, legal experts say, and the best near-term outcome for supporters will be that some states allow it, and the federal government will defer to each state on the question of who is married and who isn’t.
And in the meantime, opponents of gay marriage vow to take the issue directly to voters — and the ballot box is the one place where they haven’t lost.
“I think the country is likely to be divided on this issue for a long time,” said Andrew Koppelman, a law professor at Northwestern University.
Increasingly, courts and state legislatures have decided that same-sex couples shouldn’t be treated differently from opposite-sex couples. It’s an incremental process, playing out state by state, reflecting the feelings of a changing but still divided public.
On Thursday, the Maryland legislature approved a bill to legalize gay marriage. Gov. Martin O’Malley, a Democrat, said he would sign it, making Maryland the eighth state to give gay and lesbian couples the right to marry.
On Wednesday, a federal district judge in California struck down the 1996 Defense of Marriage Act, which blocks married same-sex couples from receiving a wide variety of federal benefits. It’s the second time in two years that a federal court has ruled the law unconstitutional, and an appeals court decision is expected soon on the earlier case.
And earlier this month, a panel of judges on the 9th U.S. Circuit Court of Appeals overturned Proposition 8, the voter-approved California law that took away from gay and lesbian couples the right to marry, which they’d gained only months earlier. Legal experts say that the Supreme Court is likely to have the final say on both laws.
“There are people who would love to throw a Hail Mary pass at the courts and get this decided now, but mainstream advocates have counseled that we need more time to work on the issue state by state,” said Steve Sanders, who teaches constitutional and family law at the University of Michigan.
If same-sex marriage opponents are losing in the courts and in the legislatures, they’re fully prepared to take the issue to the voters. Every state that has voted on same-sex marriage has voted to reject it, and that’s what opponents are counting on in Maryland and Washington state, which earlier this month became the seventh state to allow same-sex marriage. “We’ll leave no stone unturned,” said Kathy Dempsey, a spokeswoman for the Maryland Catholic Conference, which opposes same-sex marriage.
“This question is ultimately about what the definition of marriage is,” said Joseph Backholm, the executive director of the Family Policy Institute of Washington, which is in the process of gathering 121,000 signatures to bring the issue to the ballot in that state in November. “There are relationships that are meaningful to people, but they’re not marriage. Marriage is a relationship between a man and a woman. That is not a denigration of other relationships.”
There are now tens of thousands of same-sex couples in six states and the District of Columbia who are legally married where they live. But because the federal government only recognizes marriages between one man and one woman, gay and lesbian married couples are denied some 1,138 federal benefits that derive from marriage. They include such matters as Social Security survivor benefits, health insurance coverage, immigration status, veterans benefits, joint income tax filing and estate tax payments.
But married same-sex couples say that what might be mundane to opposite-sex married couples can become complicated and stressful for them.
Edith Windsor, 82, a retired IBM computer programmer who lives in Southampton, N.Y., paid a $363,000 inheritance tax when her partner of 44 years, Thea Speyer, died in 2009. The two were married in Canada in 2007 as Speyer’s health deteriorated from multiple sclerosis. But because of federal law, Windsor paid a tax she wouldn’t have paid had Speyer been a man. “We looked at it as a tax on being gay,” said Windsor, who is suing the government.
In another challenge to the law, Tracey Cooper-Harris, a 39-year-old disabled Army veteran from Pasadena, Calif., sued the Department of Veterans Affairs earlier this month because it denied her application for spousal benefits.
Tracey and Maggie Cooper-Harris were married in 2008 during the brief window that same-sex marriage was legal in California. They think they should qualify for military benefits such as medical care and burial in a veterans cemetery.
Tracey Cooper-Harris, who received a dozen medals for her service in Iraq, has multiple sclerosis, and she worries about what will happen to Maggie as her condition worsens.
“I don’t want her to have to worry about these matters when I get sicker and when I die,” Tracey Cooper-Harris said. Gay rights activists say it is stories such as these that help turn the tide. While it’s true that no state’s voters have yet upheld same-sex marriage, that doesn’t mean they never will.
According to a Pew Research Center poll in November, 46 percent of Americans supported same-sex marriage, while 44 percent opposed it. That’s a dramatic shift from 2006, when the same poll showed that 33 percent supported it, while 56 percent opposed it. Among people from ages 18 to 30, 59 percent supported it last year.
“Public opinion is moving pretty quickly,” said Jane Schacter, a law professor at Stanford University and an expert on sexual-orientation law. “The long-term outcome is pretty clear. The question is how long does it take.”