'Gettysburg' for Gay Marriage?

Sunday, July 9, 2006

THE DECISION last week by New York's highest court not to legalize same-sex marriage is being portrayed as a big defeat for gay rights activists. Monte Stewart, president of the traditionalist Marriage Law Foundation, told the New York Times: "When people look back and write the history of this issue, they will view the New York decision as the Gettysburg in this big contest." New York was among a relatively small number of states whose courts might plausibly have followed the lead of the Massachusetts high court in requiring marriage equality. Its refusal to do so suggests that the high-water mark of judicial recognition of marriage rights for gay men and lesbians might not be all that high.

Yet since the Massachusetts decision in 2003, it's become clear that democratic majorities, not judges, ultimately will decide how evenhanded state marriage laws are going to be. In many states, ballot initiatives have preempted any litigation by amending state constitutions to prohibit same-sex marriage. In others, legislatures have moved to liberalize marriage laws. Even in Massachusetts, where the courts purported to resolve the issue, an amendment to overturn the decision could be in front of voters in 2008.

In other words, the most a state court can do is change the legal baseline. State laws, and even state constitutions, are generally easy enough to change that courts cannot force same-sex marriage on an unwilling populace. The fight for marriage equality in New York will simply move to the legislative arena.

So the task for Americans who support same-sex marriage, as we do, has not changed. It is to convince a majority that couples who love each ought to have the state's recognition for lifelong relationships -- and that such recognition poses no threat to heterosexual marriage. Once that happens, it won't matter what the New York court thinks. And until that happens, no victory there, or in any state court, will be safe.

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