27 June 2013

Next Steps In Same Sex Marriage Struggles

The next steps in the ongoing efforts to secure same sex marriage rights will mostly take place at the level of state constitutional amendments or litigation to declare state constitutional amendments already in place to be unconstitutional through litigation.  But, there are a few exceptions.

Options short of constitutional amendments to secure same sex marriage:

Four fairly socially liberal states are obvious targets for action short of state constitutional amendments:

* New Jersey, which has statutory domestic partnerships and no state constitutional ban or express statutory prohibition of same sex marriage, could simply amend its laws by statute or interpret them judicially. 

* The situation is similar in New Mexico which has no express ban of same sex marriage but no express authorization for it, and no domestic partnership or civil union legislation on the books.

* Illinois, which has civil unions and a statutory provision that marriages cannot be same sex, could amend its statutes.

* Pennsylvania has no state constitutional ban on same sex marriage and could amend its state statutory prohibition.

There are three other states where a mere statute could allow for same sex marriage, but prospects of passage in these far more socially conservative states are less strong: West Virginia, Indiana, and Wyoming.

Strong prospects for state constitutional amendments:

Colorado, Nevada and Oregon all have same sex marriage bans, but also have civil union legislation on the books and are fairly socially liberal.  These states also allow state constitutions to be amended by initiative, which eliminates the need for a bipartisan consensus to propose a change.  These states are the best prospects for state constitutional amendments.

Possible new civil union jurisdictions:

Alaska, Arizona, Montana, Missouri, Tennessee, and Mississippi have state constitutions that ban same sex marriage and may be more difficult to secure state constitutional amendments in than states that have civil unions, but may be jurisdictions where civil union statutes could be adopted.

Other states:

Nineteen others states have state constitutional bans on same sex marriage and civil unions.  One of those, Wisconsin, does have domestic partnership legislation (recognizing same sex couples in a manner not comparable to marriage).

Of these Wisconsin, Michigan, Ohio, Virginia, Florida, Louisiana, and Arkansas are relatively socially liberal or moderate compared to the others and might be favorable venues for mounting efforts to amend state constitutions.  Prospects for state constitutional amendments in the other twelve states, which are fairly socially conservative seem bleak at this time.

A nation divided:

Yesterday's U.S. Supreme Court decisions took care to avoid a federal constitutional requirement that same sex marriage or civil unions be allowed by states.  The momentum of gay rights gains and changing public opinion is likely to bring the divide to roughly 50-50 when the dust settles in a few years domestically, although momentum internationally may continue.  But, once that point is reached it may be very difficult to shift the balance politically.  Absent federal constitutional law challenges, the issue will reach an uncomfortable deadlock, unless public opinion continues its rapid evolution on these issues even in socially conservative states.  Multistate corporations which will be required to have non-discrimination policies in some states where they operate may be one important driver of this trend, the military which has integrated in respect to sexual orientation, may be another.

If a deadlock is reached, full faith and credit issues as sane sex couples and their children who marry in one state and move to (or conduct business in) another may predominate.  It is likely that couples married in one state who live in a state that does not recognize same sex marriage will still be considered to be married for federal law purposes, but that state law need not recognize these unions.

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