By Lisa Keen
AP Photo: Jose Luis Magana
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The Supreme Court of the United States will rule any day now on whether it is a violation of the U.S. Constitution for states to bar same-sex couples from marrying. But for weeks, in apparent anticipation that the Court will strike down such bans, states that still have or want to keep their bans have been passing legislation aimed at trying to circumvent such a ruling.
North Carolina's legislature this month overrode its governor's veto and enacted legislation that permits public magistrates and registrars to refuse to process marriage license applications for any couple by claiming to have a "sincerely held religious objection" to the marriage.
Indiana passed a law to allow any person, organization or business being sued for discrimination to claim he or it is exercising religious beliefs as a defense in any proceeding against him or it. The aim of the measure was to enable businesses, including restaurants, bakers and florists, to deny service to same-sex couples. There was such a backlash nationally against the law, the legislature amended it within days to state that the law did not mean businesses could refuse service based on sexual orientation.
Texas legislators, who missed a deadline to introduce a bill this year, will no doubt try again next year to prohibit the use of state funds to process and issue marriage licenses to same-sex couples. The Alabama Supreme Court ordered state clerks to defy a federal court ruling to issue marriage licenses to same-sex couples.
And the Michigan legislature passed bills that allow adoption agencies to refuse child placement services to anyone by claiming to be motivated by "sincerely held religious beliefs." The bills were motivated by agencies seeking to deny services to same-sex couples.
Denying Equal Treatment
While some of these specific tactics are novel, efforts to avoid complying with a court order to provide equal protection to same-sex couples — including efforts to deny adoptions — were tried in Massachusetts after the state Supreme Judicial Court (SJC) ruled in 2003, in Goodridge v. Department of Public Health, that the state constitution requires equal treatment of same-sex couples in marriage licensing.
The SJC gave Massachusetts 180 days to comply with its order, but the legislature instead held a special session to vote on proposals to amend the state constitution to ban same-sex couples from marrying and to offer them only civil unions. One proposal passed its first vote but was killed the following year. There were also four different lawsuits (three in state court, one in federal court) to challenge whether the SJC had jurisdiction to decide the marriage issue. None succeeded.
Then Gov. Mitt Romney pushed for a stay of the SJC decision. That failed too. For a few years, Romney did succeed in blocking the state from issuing marriage licenses to same-sex couples from other states who might travel there seeking a license. He did this by reviving an obscure law passed in 1913 to block interracial couples from marrying in Massachusetts.
And there were rumors that Romney might order town clerks to defy the court's ruling and refuse to issue marriage licenses to same-sex couples. Although the governor did not issue such an order, Mary Bonauto, the attorney who argued Goodridge and also argued the current appeal at the U.S. Supreme Court, recalls that some marriage clerks in Massachusetts were reluctant to comply with the SJC ruling and "a few resigned."
But despite its initial vigorous resistance, Massachusetts did ultimately comply with the decision, the legislature repealed the 1913 law, and though opponents still exist, the fighting in Massachusetts has long been over. The U.S. Supreme Court decision this month — if it does strike down state bans — will only reinforce the SJC's landmark decision.
Last Ditch Efforts
As for the states who are now trying to resist compliance preemptively with a possible Supreme Court decision striking down their bans on marriage for same-sex couples: LGBT legal activists are clearly ready.
"If we win at the Supreme Court and state or local authorities refuse to comply, they should expect to be sued," said Jon Davidson, national legal director for Lambda Legal. "Public officials will need to keep in mind that the right of same-sex couples to marry will have been clearly established at that point, and any interference with that right likely would subject government officials to personal liability for damages and attorneys' fees.
"In addition, refusal to comply with court orders that will control them in some jurisdictions may lead to them being held in contempt of court and the imposition of sanctions," said Davidson. "I think there will be less resistance than some are predicting, but we are ready to hold officials responsible for failure to comply with the law — indeed, we're looking forward to it."
Lambda Senior Attorney Jenny Pizer says it's possible "obnoxious — even outrageous — measures will be proposed."
"Bills seeking to expand religious exemptions in inappropriate ways are likely to continue to be among the most pernicious," said Pizer. "I hope we'll continue to be able to stop most of them if not allÉ (or) of those that pass, at least to narrow them substantially."
Pizer says it may be "essential" that the LGBT community and friends "be prepared to help from all corners of the country much more than we've done up to this point."
But legal activists also expect that resistance will follow the same course it did in Massachusetts.
"If we win," said Bonauto, "…I think it is fair to expect that there will be a few last ditch efforts to block marriages. They will fizzle."
