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Marriage on the march

By Lisa Keen

Just as one state's ban on gay marriage went before a federal appeals court this month, another state's legislature approved a ballot measure to put a similar ban before voters this November. Meanwhile, a group seeking to put a gay marriage ban on the 2006 ballot in Florida failed to obtain enough signatures to do so.
In the marriage case closest to a U.S. Supreme Court appeal, earlier this month, Nebraska sought to defend the decision of its voters to pass an amendment to their state constitution to ban recognition of same-sex marriage.
On Feb. 13, a three-judge panel of the U.S. Court of Appeals for the 8th Circuit heard the appeal from Nebraska, which is seeking to preserve an amendment that prohibits recognition of same-sex marriages or any other form of gay relationship.
The ACLU and Lambda Legal Defense and Education Fund challenged the amendment, adopted in 2000, in federal court and a federal district court judge ruled it unconstitutional. The judge said the amendment violates U.S. constitutional rights, including equal protection, freedom of association, and the right to petition government for redress of grievances. And he agreed with the legal advocates that the ban amounts to a "bill of attainder" – a legal term for an act which inflicts punishment without trial on an identifiable group of people.
Echoing the U.S. Supreme Court's decision in Romer v. Evans in 1996, the ACLU's Tamara Lange argued to the appeals panel in St. Louis that state laws "can't turn lesbian and gay people into political outcasts." And David Buckel, Lambda's Marriage Project Director, called the amendment "the most extreme anti-gay family law in the nation."
But Nebraska Deputy Attorney General Matt McNair told the court that the amendment does not really disadvantage gay couples because they can arrange for many of the benefits of marriage through the use of other legal instruments, such as wills, contracts, and powers of attorney.
"They have rights and benefits in other ways, but they want them based on recognition of relationship," said McNair, according to the Journal Star, a Lincoln, Nebraska, newspaper.
The panel includes Judges James B. Loken (a George Herbert Walker Bush appointee), Pasco Bowman (a Reagan appointee), and Lavenski Smith (a Bush appointee).
Meanwhile, on Feb. 15, the Idaho Senate mustered the two-thirds majority needed to send a proposed constitutional amendment to voters concerning gay marriage. The proposed amendment would, like that in Nebraska, ban recognition of any form of gay relationship, including marriage, civil unions, or domestic partnerships. The bill, which had already passed the House, failed in three previous legislative sessions in the Senate before five Republican senators changed their votes this year to support the measure.
But while voters in Idaho will be voting on a gay marriage ban in November, voters in Florida will not. According to news reports, a coalition of right-wing religious organizations called "Florida4Marriage" failed to obtain the 611,009 signatures necessary by Feb. 1 to put the issue before voters this November. However, Florida law allows organizers, who say they have collected 455,730 signatures, to continue gathering signatures and submit them for the 2008 ballot.
On Feb. 8, the ACLU argued before the Florida Supreme Court that the proposed ballot initiative should be thrown out anyway, because it misleads voters into thinking it bans only marriage between gay couples, when it bans much more.
Farther north, the state supreme court of New Jersey heard oral arguments Feb. 15 in a Lambda lawsuit challenging the state's refusal to grant marriage licenses to same-sex couples there.
Before the New Jersey Supreme Court Feb. 15, state Deputy Attorney General Patrick DeAlmeida used an argument which has been employed by several states thus far: that the job of deciding whether gay couples should get marriage licenses is the responsibility of legislators, not judges.
"To allow same-sex couples to marry would not be removing a barrier to marriage, but redefining marriage itself," said DeAlmeida, according to The Trentonian newspaper.
That same argument was proffered in three of five cases challenging New York State's refusal to issue marriage licenses to gay couples. There, a state appeals court ruled on Feb. 16 that any effort to provide marriage licenses to same-sex couples required a legislative re-definition of marriage.
Meanwhile, a much awaited decision from the Massachusetts supreme court over whether out-of-state gay couples can apply for marriage licenses has been delayed. The state supreme court indicated earlier this month that it would not make its self-imposed deadline of this month for deciding the issue. Thus, the next big news on the gay marriage front is likely to come from Seattle, where the state supreme court is expected to issue its ruling on the matter before March 9.

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