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WETZSTEIN: Prop. 8 likely to remain

- The Washington Times - Tuesday, March 10, 2009

Column:

Gay marriage is on the march, so here's a rundown about two recent events with national implications.

First up is the question of whether California will again be a gay marriage state.

We'll know for sure by early June. But after Thursday's arguments at the California Supreme Court, many observers, myself included, do not see the court throwing out Proposition 8. If that's the case, gay marriage is over for the Golden State, although it remains legal in Massachusetts and Connecticut.

Prop. 8, of course, is the voter-passed constitutional amendment that says only marriages of one man and one woman are valid or recognized in California. It was put on the ballot to trump any California Supreme Court ruling legalizing gay marriage.

The court did, in fact, legalize gay marriage last May, but when Prop. 8 passed in November, the court stopped the marriages.

At Thursday's oral arguments, gay marriage advocates asked the court to throw out Prop. 8 because it illegally "revised" the constitution, but most justices just didn't seem to buy that argument. The people have an inalienable right to change their constitution, one justice said.

What about the 18,000 gay couples who married in California last year? Because they did so under the color of law, their unions should remain legal, the justices seemed to say.

At times, the three-hour colloquy between lawyers and justices was just riveting. It can be seen in the video archive (the case is Strauss v. Horton) at www.calchannel.com.

A second legal front in the march for gay marriage also opened last week.

The case, Gill v. Office of Personnel Management, is aimed at throwing out the 1996 Defense of Marriage Act (DOMA), which limits federal benefits to marriages of one man and one woman. It also tells states they don't have to recognize out-of-state gay unions.

The lawsuit, filed March 3 in District Court of Boston, is brought by eight married gay couples and three gay widowers, all of Massachusetts.

They say that DOMA is unfairly depriving them of federal benefits, such as federal health care, Social Security survivor benefits and spousal bereavement payments.

"Same-sex married couples have taken on the commitment of marriage, play by the rules and pay into the system," said Mary Bonauto of Gay & Lesbian Advocates & Defenders, which won the landmark Massachusetts and Connecticut gay marriage cases. It's time for the federal government to "end its blatant double standard," when it comes to marriage rights and protections, she said.

A DOMA challenge had been expected: It's the "legislative Holy Grail" for gay rights activists, say leaders of the Alliance for Marriage (AFM), an organization launched in 1999 to prevent fatherless homes, strengthen traditional families and protect DOMA.

Congress also hasn't shown a willingness to overturn DOMA, but that may now change under the Obama administration and the Democrat-led Congress. "Federal law should not discriminate in any way against gay and lesbian couples, which is precisely what DOMA does," President Obama said while campaigning.

Since 37 states have their own DOMAs and 30 states have voter-passed amendments outlawing gay marriage, a repeal of DOMA would be both dizzying - and far-reaching.

Click here to e-mail Cheryl Wetzstein.