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No trend toward gay marriage foreseen

Experts say few states will follow California in legalizing unions.

May 26, 2008|David G. Savage | Times Staff Writer

WASHINGTON — As the nation's most populous state, California often sets in motion social and political trends that sweep across the country. But legal experts on both sides of the fight over same-sex marriage say that the California Supreme Court's ruling giving gays and lesbians a right to marry is not likely to have a ripple effect. For more than a decade, conservative activists have erected a series of legal barriers to prevent one state's move toward recognizing gay marriages from setting in motion a national wave. In 1996 they won passage of the federal Defense of Marriage Act, which said that same-sex marriages performed in states that allow them do not have to be honored by the federal government or other states. And they won laws in 42 states to limit marriage to a man and a woman. In 27 of them, these are constitutional amendments that cannot be overridden by judges or lawmakers.

"While the California ruling is very significant, a lot of states have already taken action on this," said Christine Nelson, an analyst who tracks the issue for the National Conference of State Legislatures in Denver. She said these states have made it as difficult as possible for judges to give legal recognition to marriages between two men or two women.

For that reason, many experts foresee the move toward same-sex marriage in the United States as taking place over a generation -- if at all -- resulting not from quick and decisive legal victories but from slowly changing attitudes that eventually carry over to the U.S. Supreme Court.

Through most of its history, the Supreme Court has been cautious in interfering with marriage and family laws, usually ruling to strike down laws only after they came to be seen as archaic.

In 1967, the court led by Chief Justice Earl Warren threw out the laws against interracial marriage in the case of Loving vs. Virginia. (Mildred Jeter Loving, who had challenged Virginia's law along with her husband, Richard, died this month.)

A gradual process

But as USC law professor David Cruz points out, the Warren court waited for more than a decade to strike down these laws after it had declared racial segregation to be "inherently unequal" and a violation of the Constitution. "The court ducked the issue after Brown v. Board of Education," Cruz said. Shortly after that landmark 1954 civil rights ruling, it turned away appeals from Alabama and Virginia that challenged the laws against interracial marriage. At that time, 29 states had laws on the books against marriage between whites and blacks.

When the court finally ruled in 1967, only 16 states, including Virginia, had such laws. "Under our Constitution, the freedom to marry, or not to marry, a person of another race resides with the individual and cannot be infringed by the state," Warren said, speaking for a unanimous court. His words came 19 years after the California Supreme Court became the first in the nation to strike down a state's law against interracial marriage.

Five years ago, the U.S. Supreme Court gave the gay rights movement a big victory when it struck down as unconstitutional the anti-sodomy laws that branded gays as "deviants" and said they could be prosecuted for having sex at home. By then, only a few states, including Texas, had such laws on the books.

By contrast, the number of states with laws prohibiting marriage for gay or lesbian couples has been steadily growing this decade, not shrinking. A look at a map of the nation would suggest the gay-marriage movement is blocked, except for beachheads on the two coasts. Most states have amended their constitutions to take the marriage issue away from judges.

Florida, like California, is due to put the issue before voters this fall.

In 2004, Massachusetts became the first state to recognize same-sex marriage: Its Supreme Court, in a 4-3 decision, ruled it was unconstitutional to deny this right to gay couples. But this decision has not been followed by other high courts in liberal-leaning states. In the last two years, state justices in New York, New Jersey, Washington and Maryland refused to give gays a right to marry. Most of the rulings were narrowly split, with the majority saying the issue should be decided by legislators and voters.

New Jersey justices, for example, ruled unanimously that gay couples are entitled to the same legal rights and responsibilities as heterosexual couples. However, by a 4-3 vote, they said that recognizing gay unions as marriages would be a change that "must come from the crucible of the democratic process."

California justices split along the same lines, although the 4-3 majority came down in favor of extending the fundamental right to marry to gay couples. "In my view, Californians should allow our gay and lesbian neighbors to call their unions marriages," Justice Carol A. Corrigan wrote in dissent. She concluded, however, that changing the law must be left to the lawmakers or the voters.

Public opinion is key

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