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U.S. could join global gay marriage trend if high court approves

December 07, 2012|By Carol J. Williams
  • The state of gay and lesbian rights in the world.
The state of gay and lesbian rights in the world. (International Lesbian,…)

A U.S. Supreme Court decision to review the constitutionality of laws restricting marriage to heterosexual couples has raised hopes among gays and lesbians in the United States that their right to marry might soon be legally recognized, allowing them to join a widening global community of same-sex couples.

The high court decided Friday that it would take up challenges to California’s 2008 state constitutional amendment overturning a short-lived right for gays to marry, as well as rulings in Massachusetts, New York and California that the 1996 Defense of Marriage Act violates gay Americans’ right to equal protection under the law. That federal statute, known as DOMA,  denies even legally married same-sex partners access to federal benefits like government health insurance and surviving-spouse pensions.

Legal recognition and protection of gay marriage exists in much of the developed world, but in the United States the right of marriage is defined on a state-by-state basis. During last month’s election that gave President Obama a second term in office, three more states – Maryland, Maine and Washington – voted to legalize same-sex marriage.  Gay nuptials begin in Washington this weekend. A fourth state, Minnesota, rejected a proposed ban on marriage other than between a man and a woman.

While that brings what gay rights groups refer to as “marriage equality” to only nine of the 50 states, it represents momentum toward wider public acceptance after a decadelong pattern of failures at the ballot box. Until November, state voter initiatives proposing to legalize gay marriage had suffered 32 straight failures, and it has only been in the past year that a majority of Americans have been telling pollsters they support extending marriage rights to gay couples.

The high-court justices, who will hear testimony on DOMA and California’s Proposition 8 in March and issue their ruling by the end of June, could handle the cases in three different ways: They could reverse a federal appeals court ruling on Proposition 8 that it violates the Equal Protection Clause of the Constitution and reaffirm that states and their voters have the authority to decide who can marry. They could simply reaffirm the Western federal appeals court ruling striking down Prop 8, limiting the effect of their ruling – resumption of gay marriages --  to California. Or they could rule broadly on both Prop 8 and DOMA that the laws violate citizens’ fundamental rights, opening the door to same-sex marriage nationwide.

The latter ruling would put the United States on a similar legal platform as Canada, Scandinavia, Western Europe, South Africa and Argentina, where same-sex couples can legally wed.

France will also consider a “marriage for all” proposal early next year, when lawmakers are asked to vote on a proposal submitted last month by President Francois Hollande's Cabinet. Hollande won election earlier this year after campaigning on a pledge to recognize the right of homosexuals to marry and adopt children. The bill faces some strengthened opposition when it comes up for debate in January, but analysts see the resistance as more a political battle between urban and rural French constituencies than a retrenchment of public attitudes on gay rights.

Same-sex marriage also scored a victory in Spain last month when the nation's highest court rejected an appeal of the 2005 gay marriage law. The conservative Popular Party brought the challenge, arguing that the Spanish Constitution defines marriage as between a man and a woman. More than 22,000 same-sex marriages have been celebrated in predominantly Roman Catholic Spain since it became the third country, following the Netherlands and Belgium, to recognize the right of gays to marry.

Even in conservative-governed Britain, gay marriage advocates are gaining ground. Prime Minister David Cameron's government has promised to introduce a bill that would convey marriage rights to same-sex couples. Britain already recognizes "civil partnerships," which bestow the same rights and privileges as heterosexual marriage.

Gay marriage remains unpopular and illegal in much of Africa, the Middle East and Central Asia, and major powers like Russia, China and Japan have yet to address whether to make it legal.

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