By Bob Roehr
The struggle for gays and lesbians to marry suffered setbacks in Connecticut, Nebraska, and Tennessee last week; with each loss coming at different stages of that process.
Connecticut
A Connecticut judge ruled against eight gay and lesbian couples seeking a marriage license. In her July 12 decision, Judge Patty Jenkins Pittman found "that the plaintiffs have failed to prove that they have suffered any legal harm that rises to constitutional magnitude."
Last year Connecticut enacted legislature that restricted the term "marriage" solely to opposite sex couples and created "civil unions" for same sex couples.
That created "an identical set of legal rights in Connecticut for same-sex and opposite-sex couples," the judge wrote. The plaintiffs "have been unable to identify any right or benefit conferred by the State of Connecticut that is different than for opposite-sex couples whose unions are legalized." And if they could, those difference would be illegal under the law.
She noted that marriage has consistently undergone evolution and "being married no longer carries the cultural or social weight, for good or ill, that it did in decades past." So while the plaintiffs may seek the social embrace of the term marriage, the law is in fact concerned with equal treatment, which has been enacted.
Pittman wrote, "The equal protection clause does not forbid classification. It simply keeps decisions makers from treating differently persons who are in all relevant respects alike … the fact that two similar groups–men and women–are referred to by two different names does not provide the basis for an equal protection or due process challenge."
She acknowledged that there is an issue of "portability" with civil unions in that they are not recognized by most states, or by the federal government because of the Defense of Marriage Act. However, these are areas that are outside of the sphere of the Connecticut.
Nebraska
The situation in Nebraska began in 2000 when 70 percent of voters passed what became Section 29 of the Nebraska Constitution. It declared: "Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska."
Last year a U.S. district judge found "that Section 29 is indistinguishable from the Colorado constitutional amendment" that the United States Supreme Court struck down in the case Romer v. Evans. That landmark 1996 equal protection decision found that Colorado's antigay Amendment 2 excluded gays from the political process and thus was unconstitutional.
An appeals panel of the Eighth Circuit overturned that lower court decision on July 14; it found the amendment was not so broad as the situation in the Roemer decision. It also argued that marriage is governed by state rather than federal law and that there was a rational basis for the state to enact the measure restricting access to marriage to heterosexuals.
David Buckel with Lambda Legal, one of the parties that brought the lawsuit, told the Los Angeles Times the court ignored the principle claim raised. "We did not sue about marriage, we sued because our clients were told it was a waste of time to try to get a domestic partnership bill passed … Yet the court is reasoning as if what we asked for was the right to marry." It is considering an appeal.
This is the highest level federal court to consider the issue of gay marriage, most other litigation has been within state court systems.
Tennessee
The situation in Tennessee was simpler. The legislature put an amendment banning same-sex marriage on the ballot in November for voters to consider. The ACLU argued the technical point that it was done too late for opponents to have sufficient time to present their case to the voters.
The Tennessee Supreme Court unanimously ruled that the ACLU did not have standing to bring the suit, and dismissed it on July 14. Voters are likely to approve the amendment in the fall.
The "silver lining" to these losses, as well as those the previous week in New York and Georgia, is that they are likely to dampen down the hysteria behind the call for an amendment to the U.S. Constitution to ban gay marriage. They strengthen the hand of those who argue that an amendment is not necessary, that the legal and political processes are working.
House Republican leaders have declared this to be "values week" and have scheduled a series of votes on social issues such as the marriage amendment. The Senate has twice declined to pass such an amendment and the House vote is expected to fall well short of the two-thirds majority necessary for passage.
