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What's Next for Same-Sex Marriage?

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D.C. Mayor Adrian Fenty discusses the D.C. Council's decision Tuesday to recognize gay marriages performed elsewhere, and how he thinks Congress will react. Video by News Channel 8/WJLA-TV 7

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Tuesday, April 7, 2009; 2:23 PM

The Post asked observers and activists for their take on Tuesday's legalization of gay marriage in Vermont and last week's legalization of gay marriage by the Iowa Supreme Court, as well as the D.C. Council's vote to recognize same-sex marriages performed in other states. Below, Joe Mathews, Gary Busek, Samuel Rodriguez, Lea Brilmayer, Scott Keeter and Bruce Fein weigh in. Please let us know what you think in the comments section.

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JOE MATHEWS

Senior fellow at the New America Foundation

The Vermont news is good for gay couples who want to marry there, but it's not a big development in the national push for same-sex marriage. Don't expect Congress to follow suit.

Yes, President Obama has expressed his opposition to the federal Defense of Marriage Act (DOMA), which bars federal recognition of same-sex marriage. But, given the major economic and national security challenges on his plate and on the congressional aganda, neither the White House nor Capitol Hill can be expected to make federal recognition of same-sex marriage a priority right now.

The issue also isn't yet ripe on the national level. Federal recognition will come only when the fight for hearts and minds is won in the states. So far, only four states have legalized same-sex marriage, none of them south of Indianapolis. It's nice that courts (in Iowa, Massachusetts and Connecticut) and state legislatures (in Vermont and California, where lawmakers have passed legalization bills only to see them vetoed) have shown support for equal marriage rights. But voters have consistently chosen to ban same-sex marriage when given the choice. Only when more states are added to the list of those that support same-sex marriage will there be political space for Obama and the Democrats to overturn DOMA and make marriage equality the law of the land.

That said, Congressional Democrats may soon have an opportunity to pass an important half-measure: providing federal recognition for gay civil unions, so that gay partners become eligible for federal benefits (pensions, veterans benefits, etc.) for which spouses are eligible.

GARY BUSEK

Legal director of Gay & Lesbian Advocates & Defenders

It's been a breakthrough week for marriage equality. Same-sex couples in Iowa and Vermont will be able to show their neighbors -- and, perhaps, their president -- how right it is for them to have the dignity and respect of marriage.

None of these couples will have federal benefits because of the Defense of Marriage Act. President Obama has said he supports the repeal of DOMA, which is great. But he continues to say he believes that marriage is between one man and one woman.

The president is an intelligent, compassionate, highly educated person with an unparalleled appreciation for the power of language. Possibly the most important thing he could do on the issue of marriage equality is to do away with simplistic rhetoric and engage more sincerely on the issue. "One man and one woman" does not address the very real constitutional question of why similarly situated citizens should be split into two classes -- those admitted to the civil institution of marriage and those barred from it.

SAMUEL RODRIGUEZ

President of the National Hispanic Christian Leadership Conference

The legalization of gay marriage in Iowa and Vermont should be seen as a declaration of war on traditional values. Of course, Vermont should not surprise anyone. Politicians in the state of Howard Dean used a legislative a strategy that began with legalizing civil unions and ended with redefining marriage. But Iowa's decision -- not from the liberal Northeast or from the left coast, but, rather, from the heartland -- serves as a warning to values voters and to moderates and centrists who believe marriage is a sacred union between one man and one woman. The message is clear: Marriage traditionally defined is in jeopardy even in the heartland.

Ultimately, the Christian right and the GOP alone cannot defend traditional marriage. Traditional marriage will be protected only via a coalition of moderates, centrists, Republicans, Democrats, independents, men, women, blacks, whites and Latinos who agree with the African American community in California, which voted for Proposition 8. President Obama's response to Iowa and Vermont could further rile values voters in 2010 and 2012. If the president threatens the Defense of Marriage Act, Iowa and Vermont redefining marriage may become the answer to the conservative's prayer.

LEA BRILMAYER

Howard Holtzmann professor of international law at Yale Law School

If President Obama hoped to buy some peace by ignoring the explosive issue of same-sex marriage, recent events in Iowa and Vermont have made that strategy look increasingly questionable. The growing number of states providing for same sex marriage puts Washington on the spot because federal tax and social security laws (to give just two examples) require knowing whether or not couples are legally married.

The feds can't tell couples filing tax returns that they are married for purposes of income earned in Iowa but single for purposes of income that they earned across the state line in South Dakota. A uniform answer is needed. The current Defense of Marriage Act specifies that for federal law purposes marriage means one man and one woman. The Obama administration is unlikely to favor this solution, especially as more states decide the opposite.

There are good reasons to leave regulation of marriage to the states. But which? The one where the marriage was celebrated, the one where the parties lived at the time, or the one where the parties are living when they file their tax return? The best solution lies in a choice of law rule known as "alternative reference," which upholds a transaction if it would be recognized as valid by any of the involved states. That would easily solve Washington's legal problem and balance states' rights to regulate local issues, such as family law, with the federal need for uniformity.

SCOTT KEETER

Pew Research Center director of survey research

The Vermont legislature's action comes amid a flurry of activity on the issue in several states. While court rulings have provided the impetus for change in some states, legislatures also are acting. This may well reflect growing public acceptance of the idea of same-sex marriage -- especially in the parts of the country where legislative debates are underway. Although national polls such as those conducted by the Pew Research Center still find the public mostly opposed to allowing gays and lesbians to marry legally, the opposition is declining and is less intense than a few years ago. A Pew poll last summer found 52 percent opposed to same-sex marriage, down from 61 percent as recently as December 2004.

Much of the current legislative activity is occurring in Northeastern states, where public opinion is more supportive of same-sex marriage. In Pew's 2008 poll, a plurality of Northeasterners (49 percent) favored same-sex marriage (versus 42 percent who opposed it). Support nearly matched opposition (45 percent favor, 47 percent oppose) in Western states, as well. In other parts of the country, opposition is greater.

The latest moves by Vermont and other states may have the effect of raising the salience of the issue and mobilizing opponents of same-sex marriage, a pattern seen in the fall of 2003 after the Massachusetts Supreme Judicial Court ruled that the state had to accommodate same-sex marriage. Polls following that decision found an increase in opposition to the idea of allowing gays and lesbians to marry, and voters in many states in 2004 approved constitutional amendments banning same-sex marriage.

But if opponents of same-sex marriage want to make the issue more important to voters, they may have an uphill battle in an environment in which the economy is dominating most political discussions. Even in mid-summer of last year, before the worst of the economic news broke, voters ranked same-sex marriage at the very bottom of a list of 12 issues in importance to their presidential vote.

BRUCE FEIN

Constitutional lawyer and author of "Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy"

Vermont's legislative embrace of gay marriage confirms a national trend: Vermont joins Massachusetts, Connecticut and Iowa in prohibiting discrimination based on sexual orientation in marriage. Other states such as New York recognize same-sex marriages consummated in other jurisdictions. In none has the institution of the family weakened.

So plenty more is likely to happen on the federal level. President Obama has declared his support for repealing the Defense of Marriage Act's prohibition on recognizing same-sex marriages in the application of federal law. Federal litigation on the matter is already emerging over decisions by two federal appellate judges to grant health benefits for the same-sex spouses of federal employees. A congressional repeal of DOMA seems inevitable, unless the U.S. Supreme Court first holds that marriage discrimination based on sexual orientation is unconstitutional.

With DOMA's demise, Obama is likely to support federal laws that would recognize -- as a matter of states' rights -- same-sex marriages legally consummated under state law. Still, the politics will be fraught. Obama probably will say nothing about their wisdom in order to avoid inflaming Christian conservatives.


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