- The Washington Times - Monday, June 3, 2013

When it comes to marriage laws, America is now a house divided.

With Illinois failing to approve a gay marriage bill late last week, the number of states expected to legalize gay marriage may be topping out and, unless the U.S. Supreme Court decides otherwise, there are few signs that a large number of other states will follow suit anytime soon.

Can the United States live with such irreconcilable differences?


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What happens when a lesbian couple married in New York relocates to North Carolina, which passed an amendment to the state constitution last year banning gay marriage? Can a gay person visit his spouse in the hospital room if there’s a car accident in a non-gay-marriage state? Does a Virginia employer — where gay marriage is not recognized — have to offer spousal benefits, including 12 weeks of federally mandated family leave, to a gay worker who is commuting in every day from the District of Columbia, where gay marriage is legal? Do the laws of the state where the marriage takes place take precedence over the laws of the state where a couple may subsequently reside?

“In some way, that kind of coexistence has been in place since Massachusetts approved [gay] marriage in 2003,” said Jack Tweedie, a specialist on human-resources issues at the National Conference of State Legislatures. There are many issues where states have “a patchwork of laws,” such as gun ownership and concealment, noted Jon Kuhl, a spokesman for NCSL.

“It’s quite American” to have different laws in different states, said Austin Nimocks, a lawyer with Alliance Defending Freedom, which defends traditional marriage in lawsuits. “States should be able to maintain their own sovereignty on the marriage issue, as they always have done.”

But gay marriage advocates say that every day without uniform national marriage equality poses real risks and difficulties to gay couples and families.

“America is one country, not 50 separate kingdoms, and families should not have to fight, family by family, state by state, year by year for the freedom to marry,” said lawyer Evan Wolfson, who in 2003 launched the nonprofit Freedom to Marry organization to win same-sex marriage rights throughout America.

“The ‘house divided’ of discrimination that anti-gay campaigners have created cannot stand,” Mr. Wolfson said.

“Families don’t live their lives in only one state,” he said. “Businesses don’t just work in one part of the country. People move, people live, and they do business.”

Currently, the six New England states, along with New York, Maryland, Delaware, Iowa, Minnesota and Washington state and the District, have legalized gay marriage.

Another seven states — Illinois, Indiana, New Jersey, Pennsylvania, Wyoming, New Mexico and West Virginia — outlaw gay marriage by statute, but could one day change that status. Illinois lawmakers late Friday came close to legalizing gay marriage, but declined to bring up the bill when the 60 votes weren’t there. Sponsors are pledging to bring it up again in November.

The remaining 31 states block gay marriage by voter-passed constitutional amendments, although California’s Proposition 8 may not survive, based on the Supreme Court’s ruling in Hollingsworth v. Perry, expected in June. Gay marriage advocates are also seeking to overturn amendments in several states, including Nevada and Oregon.

The court’s options

In June, the Supreme Court could completely change the rules of engagement with rulings on the Hollingsworth case or United States v. Windsor, which challenges the 1996 federal Defense of Marriage Act.

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