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?
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.
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.”
To Mr. Wolfson, however, the Supreme Court could “do families and the country a giant favor by ending this discrimination now.”
“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.
Currently, however, not only do not all states permit gay marriage, many do not recognize gay unions from out-of-state.
This nonrecognition is explicitly sanctioned by a provision in the Defense of Marriage Act that says states do not have to recognize gay unions from other jurisdictions.
This DOMA provision is not being challenged in court. The Windsor case challenges another section of 1996 federal law that says that the federal government recognizes only marriages of one man and one woman.