Gay Marriage Scores Victories In All Four States That Considered It, But Tough Road Lies Ahead

Photo: AP

Gay-rights advocates scored a major and unprecedented victory at the polls yesterday as voters in Maine, Maryland and Washington approved same-sex marriage. In Minnesota they defeated a proposed constitutional amendment, modeled on federal law, that would have banned same-sex marriage in the state.

With that, nine states—Connecticut, Iowa, Maryland, Maine, Massachusetts, New Hampshire, New York, Vermont, Washington—and the District of Columbia—have solidly approved same-sex marriage. Another 12 states permit “domestic partnerships” or “civil unions,” which provide varying degrees of rights. (The laws in New Jersey, California and Oregon give same-sex couples virtually all the state law rights opposite-sex married couples have.)

This was a dramatic reversal of fortune for gay and lesbian advocates, who historically have not done well at the polls. During the past decade 30 of the 31 measures put to the voters have banned same-sex marriage, according to the nonpartisan Initiative & Referendum Institute at the University of Southern California.

Still, a tough battle lies ahead for those who would like to achieve marriage equality for same-sex couples. The most significant hurdle is the federal Defense of Marriage Act or DOMA, which defines “marriage” and “spouse” as limited to one man and one woman, and bars federal recognition of all same-sex marriages. DOMA prohibits all types of federal benefits to spouses of same-sex marriages, even in states that have recognized gay marriage.

With DOMA on the books state laws allowing same-sex marriage are of limited use. For example, a same-sex couple who gets married in New York or Massachusetts (which have no residency requirements) may find their new marriage disregarded by another state they live in or move to or might receive an inheritance from. For a rundown of other practical issues, see my FORBES magazine article, “Same-Sex Couples Face A Raft Of Planning Issues.”

This is likely to be the term that the Court considers the constitutionality of DOMA. Petitions are now pending asking the Court to hear several cases that squarely raise the issue. The Court could accept none, some or all of them. For a rundown of the cases and how the justices might rule, see Seattle lawyer Wendy Goffe‘s guest post, “Will The Supreme Court Legalize Same-Sex Marriage This Term?”