WETZSTEIN: Courts tip scale on gay marriage

On Monday, gay couples flocked to Iowa state offices to pick up their marriage licenses. The mood is especially celebratory because Vermont lawmakers recently legalized gay marriage, and state leaders in New York and Maine are calling for it, too.

Iowa’s Varnum v. Brien is the last of 14 lawsuits filed by gay couples seeking state-sanctioned marriage. Because the parade of “freedom-to-marry” lawsuits appears to have come to an end, it’s time for a post-mortem.

The saga began in Hawaii in December 1990, when gay couples, including Ninia Baehr and Genora Dancel, applied for marriage licenses but were rejected because they were the same sex.

Nearly 20 years later, nine state courts have ruled against gay marriage (Arizona, Indiana, Maryland, New Jersey, New York, Washington, Oregon, Hawaii and Alaska). To be fair, jurists in the last three states really had no choice - citizen-passed constitutional amendments affirming marriage as the union of a man and a woman left them with no way to approve gay marriages.

Three state courts (Massachusetts, Connecticut and Iowa) ruled for gay marriage.

Another one (Vermont) ruled that gays had to have the rights associated with marriage, but left it to lawmakers to figure out how to bestow them. The result was the nation’s first civil-union law, which Vermont lawmakers replaced with gay marriage April 7.

The California Supreme Court also ruled in favor of gay marriage - and an estimated 18,000 gay couples availed themselves of that right for five months in 2008. But California voters amended their state constitution to re-establish marriage as only man-woman unions. The California high court will soon rule on whether the people’s Proposition 8 will prevail; in the meantime, gay marriage is not allowed.

Throughout this process, the American judiciary was assailed. If jurists didn’t rule for gay marriage, they were accused of being “homophobes.” If they ruled for it, they were “black-robed activists.”

In the end, 120 American jurists had a chance to weigh in on these “freedom-to-marry” lawsuits, and more than half of them - 72 - said “no.”

Of the rest, 47 judges said “yes” to gay marriage, and one judge in Hawaii was inconclusive - he sent the case back to a lower court for more evidence.

I bring up these numbers because they show that gay marriage is not the fait accompli that people such as Hollywood celebrity and pageant judge Perez Hilton seem to think it is.

These 120 learned jurists were presented with well-prepared arguments by seasoned gay-rights attorneys on behalf of model gay couples, who were backed up by dozens of amicus briefs from groups representing the nation’s intelligentsia.

But more than half the jurists, like the lovely Miss California, just couldn’t buy it.

Instead, 72 judges upheld marriage as it is - a historically recognized, religious and social institution that legally unites two people of the opposite sex in a sexually exclusive relationship that clearly identifies them as the rightful caretakers and educators of the children they create.

Gay marriage lawsuits aren’t over - there’s a big case in Boston aimed at taking down the federal Defense of Marriage Act. But for now, the lawsuit tally is 10-4, in favor of keeping marriage as it is.

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