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Courts a tough road to gay marriage

BY JAY LINDSAY, Associated Press

When bells rang in 2004 to celebrate the nation's first gay marriages in Massachusetts, opponents warned that liberal courts were moving to permit gay marriage around the nation.

Three years later, despite attempts in many states, the nation's highest courts haven't followed Massachusetts' lead. Last week, Maryland's high court became the latest after New York, Washington and New Jersey to refuse to grant marriage rights to gay residents.

"We were very disappointed to lose," said David Buckel of Lamdba Legal, which led the court fights in New York, New Jersey and Washington. "But you have to expect it in a civil rights movement because what you're doing is creating enormous change and there are enormous forces lined up against us."

Gay marriage opponents said the losses, coming in the states thought to be most open to gay marriage, show how far advocates overreached after the ruling in Massachusetts. Gay activists point to gains, such as court-ordered civil unions in New Jersey, and say they are prepared for a long fight. Two gay marriage cases are pending before high courts in Connecticut and California.

One reason for the court struggle could be that an anti-gay marriage decision in a liberal state such as New York creates cover for other high courts who face the issue, said Yale law professor William Eskridge, a constitutional scholar who supports gay rights. For example, the Maryland court cited the New York decision.

"There's a lemming effect," Eskridge said. "The fact that all the other lemmings are doing it makes the other lemmings feel not so bad about it."

Marriages in Massachusetts began six months after the state's Supreme Judicial Court ruled in November 2003 that gays had a constitutional right to marry.

Gay marriage proponents carefully selected where to advance litigation next, weighing factors such as whether the state had anti-discrimination laws protecting gay residents, the strength of the gay community and a state's legislative composition, Buckel said.

At the same time, opponents across the country immediately began to work to put marriage out of judicial reach by passing state constitutional amendments defining the union as between only a man and a woman. Twenty-seven states now have the amendments, including 14 that approved amendments in 2004.

Even in the legal venues deemed gay-friendly, that swift public backlash against the Massachusetts decision had an impact.

"I think that frankly has scared judges in state courts a bit, even in states where they've tended to be quite liberal," said Dale Carpenter, a University of Minnesota law professor.

First came the loss in New York in July 2006, followed by the decisions in Washington state, New Jersey and Maryland. Tony Perkins of the Family Research council, which opposes gay marriage, said the rulings were about more than political expediency - they're also legally correct.

"There actually are some good judges that do what they're supposed to do," he said.

Gay marriage advocates made a strategic blunder by becoming unwilling to accept modest steps toward marriage, such as same-sex partner registries, said Lynn Wardle, a Brigham Young University law professor and gay marriage opponent. A less provocative approach might have been the difference in the one-vote losses in high courts in Washington and Maryland, Wardle said.

Buckel said gay advocates would continue to bring court cases where appropriate. The process of going before the judiciary helps gay advocates reach lawmakers and the public, and that can clear the path for expanded rights, even if there's a court loss, he said.

High court losses don't mask huge gains for gays in the last decade, Eskridge said. Nine states have approved spousal rights in some form for same-sex couples - Connecticut, Vermont, New Hampshire, New Jersey, Maine, California, Oregon, Washington and Hawaii.

Every state will eventually have to create some kind of legal structure to deal with the financial and social realities of same-sex relationships, Eskridge said. It may not be gay marriage everywhere, but it will be some form of expanded rights, he said.

"It took generations to make any progress on race," Eskridge said. "This stuff doesn't come overnight."

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