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Irreconcilable differences: Conflicting marriage laws a problem for gay couples
In either case, the high court could find a constitutional right to gay marriage, and strike down at a stroke anti-gay marriage laws and constitutional amendments in all 50 states, legal experts said.
“If the Supreme Court decides that the people of California don’t have the right to amend their constitution to keep traditional-marriage definitions, then no state has that right,” noted John Mauck, a constitutional lawyer who wrote a brief in the Windsor case on behalf of the Manhattan Declaration, a group of religious leaders who support traditional man-woman marriage.
“We are certainly hopeful that the Supreme Court will not impose a 50-state mandate on same-sex marriage,” said Mr. Nimocks of Alliance Defending Freedom. “We hope the court will allow American states to continue to explore this issue themselves.”
“Happily, there’s now a significant majority” of people nationwide who favor marriage equality, Mr. Wolfson said.
In the meantime, he said, his organization would work to win more states for gay marriage through both litigation and legislation, “while laying the groundwork to overturn some of the discriminatory constitutional amendments that were stampeded through before people even had a chance to talk it through.”
If the high court does not make a sweeping ruling, the nation will continue for the foreseeable future with its patchwork quilt of marriage laws.
These differing laws and policies directly affect gay, lesbian, bisexual and transgender individuals, couples and families, said the Human Rights Campaign, which tracks state-to-state differences in hospital-visitation policies, housing, parenting, adoption and employment for these constituencies.
In its 2012 Healthcare Equality Index, for instance, Human Rights Campaign found that in nearly 400 medical facilities, it was common to explicitly grant visitation to same-sex partners and family members. However, in 18 states, no health care facilities participated in the survey, creating questions about policies for LGBT people, it said.
These are just some of the tangible differences that marriage equality in all 50 states would resolve, said Susan Sommer, director of constitutional litigation at Lambda Legal, which has filed cases on marriage equality.
If a same-sex couple moves from a gay-marriage state like Massachusetts to a state that outlaws gay marriage like Mississippi, she said, “things are going to get a lot harder” for them and their family.
For instance, if one partner died without a will, the surviving partner could receive nothing because Mississippi wouldn’t recognize their marriage, she said. The same could happen with workers’ compensation benefits, health insurance and even employment benefits — especially if a partner worked for a state that doesn’t recognize gay unions.
Moreover, a child born to or adopted by a gay couple would be treated differently depending on state marriage policy — in a gay-marriage state both gay parents’ names would go on a child’s birth certificate, while that would not necessarily be the case in a state without gay marriage.
There are just “an enormous bundle of legal protections” that come with marriage — all with “one exchange of vows,” Ms. Sommer said.
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About the Author
Cheryl Wetzstein covers family and social issues as a national reporter for The Washington Times. She has been a reporter for three decades, working in New York City and Washington, D.C. Since joining The Washington Times in 1985, she has been a features writer, environmental and consumer affairs reporter, and assistant business editor. Beginning in 1994, Mrs. Wetzstein worked exclusively ...
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