By Lisa Keen
WASHINGTON – The next month is shaping up to be one of the biggest ever in gay marriage history. The supreme court of Massachusetts will rule on whether out-of-state couples can marry there, and the supreme court of Washington will deliver an opinion that could make Washington the second state to issue marriage licenses to same-sex couples. A victory in either case will carry an enormous impact nationally.
And, as gay activist groups promote this week as “Freedom to Marry Week,” the supreme court of New Jersey heard arguments Wednesday in a case seeking equal marriage rights there, and the supreme court of New York this month received its first briefs in that state’s marriage lawsuit.
The Massachusetts Supreme Judicial Court is preparing to rule on a lawsuit challenging the enforcement of a 1913 law that was passed to discourage interracial couples. Republican Governor Mitt Romney ordered state officials to use the law to prevent out-of-state gay couples from marrying in Massachusetts.
In its lawsuit, filed on behalf of eight same-sex couples from six neighboring states, Gay & Lesbian Advocates & Defenders argued that the state’s application of the 1913 law violates the state and U.S. constitutions. A second lawsuit, filed by 13 town clerks, argued that the 1913 law has not been enforced against out-of-state couples for many decades and that the state’s directive to enforce it against same-sex couples was “blatantly discriminatory.”
The Massachusetts Supreme Court issued the landmark 2003 decision which said the constitution requires the state to issue marriage licenses to same-sex couples.
In November, the Washington State Spreme Court voted 7 to 2 in favor of a lesbian’s right to a trial to prove she is a parent to a child her former partner gave birth to. The majority said the best interests of a child must be examined “in the face of differing notions of family” and that “Reason and common sense support recognizing the existence of de facto parents and according them the rights and responsibilities which attach to parents in this state.”
That ruling bodes well on the marriage issue, and the court is expected to rule by March 9 on two cases which seek equal marriage rights. One of the lawsuits in Washington, Andersen v. King County, was the first of many to be filed around the country following the landmark Goodridge decision in Massachusetts. And each limits its challenge to state constitutional issues, thus minimizing the likelihood that the case could be appealed to the U.S. Supreme Court. (Because it involves a U.S. constitutional issue, the Massachusetts 1913 case could be appealed to the U.S. Supreme Court.)
Andersen v. King County was brought by Lambda Legal Defense and Education Fund with the Northwest Women’s Law Center; the other lawsuit, Castle v. Washington, was brought by the ACLU. Both cases won successful declarations at the lower court level.
In both Washington and Massachusetts, ballot initiatives are stirring. Washington voters could decide this November whether to keep a recently passed law to prohibit discrimination based on sexual orientation and no matter how the state supreme court rules, anti-gay activists are expected to try to pass a constitutional amendment to ban gay marriage. Massachusetts voters are expected to vote in 2008 on whether to amend the constitution to ban same-sex marriage and legal recognition of any form of same-sex relationship.
In almost a dozen other states, other lawsuits are pressing forward, with those in New Jersey and New York leading the second wave.
The farthest along is in New Jersey, where the state supreme court heard oral arguments Wednesday. Lewis v. Harris, brought by Lambda Legal, focuses solely on state constitutional issues and lost at the lower court level. Justices are appointed in New Jersey, and this court includes three women and a man appointed by then-Republican Governor Christine Todd Whitman and three men appointed by then-Democratic Governor James McGreevey, who left office after acknowledging he was gay.
In New York, there are five cases pending, but the farthest along is Hernandez v. Robles, brought by Lambda Legal, which filed its first briefs with the state supreme court earlier this month. The challenge was successful at the trial level but reversed at the intermediate appeals level.