“Springfield must ensure that using an illegal weapon carries more jail time than shoplifting or selling an unmarked pack of cigarettes.”— ChicagoMayorsOffice (@ChicagosMayor) October 23, 2013
The recent victory by same-sex marriage advocates in New Jersey and court fights elsewhere have refocused the spotlight on gay marriage in the states, a trend that legal experts predicted in the wake of U.S. Supreme Court rulings in June.
A pair of state Supreme Court cases to be argued Wednesday – along with coming legislative battles in at least two more states – could prove significant in the debate over gay marriage.
Stateline examined upcoming action in four states: Wisconsin, New Mexico, Illinois and Hawaii.
On Wednesday, the state Supreme Court will tackle a question that turns the familiar legal fight over same-sex marriage on its head: Can a state with a constitutional ban on same-sex marriage allow domestic partnerships for those couples instead?
Opponents of same-sex marriage sued, arguing that the state’s domestic partnership registry violates the gay marriage ban. It’s a reversal of the usual legal role in which gay marriage supporters take the offensive.
In this case, opponents of the unions hope to score a legal victory and potentially set a precedent for states that don’t allow same-sex marriages but offer some kind of civil union or domestic partnership, like Colorado, Oregon, Nevada and Illinois.
Wisconsin voters approved a same-sex marriage ban in 2006 by almost 20 percentage points, but Democrats – then in control of state government – approved a domestic partner registry in 2009. It’s limited and doesn’t offer the same benefits as marriage as civil unions do elsewhere. Among other notable differences: No formal divorce is required to end a partnership.
Advocates who worked to pass the same-sex marriage ban in the first place have targeted the registry in court.
“The question essentially comes down to this,” Julaine Appling, president of Wisconsin Family Action, a plaintiff in the suit, said in a statement, “does the marriage amendment mean what it says?”
State Divide over Gay Marriage: Infographic Where do states stand on same-sex marriage and unions?
Christopher Clark, an attorney with the national gay and lesbian advocacy group Lambda Legal, which is defending the registry, points out that couples have been left without the benefits of marriage exactly because the registry is so limited.
“It’s not a close call,” he said. “It is about a very limited registry that provides a small number of important benefits to same-sex couples.”
Clark said he expects the court to focus on those technical differences as it considers whether the registry violates the spirit of the ban, rather than wading into the broader debate over same-sex marriage.
Opponents clearly see it as more than a debate over technicalities. Wisconsin Family Action has likened the registry to a backdoor marriage for same-sex couples and a move to subvert the will of voters. For them and other opponents, the case has broader significance at a time when momentum in many states has been against them.
“For a legislature to pass a domestic partner registry in defiance of their constitution is something that can’t go unchallenged,” said Peter Sprigg of the Family Research Council, a conservative lobbying organization.
It’s been almost 10 years since New Mexico legalized same-sex marriage for all of eight hours one day in February 2004. On Wednesday, the state Supreme Court will take the first step toward a definitive ruling on whether state law bans or allows same-sex marriage.
The arguments Wednesday were spawned in part by the decision this year by one county clerk to issue same-sex couples marriage licenses. Unlike 2004 – when just 64 couples were married before the state put a stop to it – officials and the courts refused to block the licenses this time. Since August, a handful of other counties have followed suit and hundreds of couples have married.
As the only state in the country with no law explicitly banning or allowing same-sex marriage, New Mexico has been an anomaly for years. Lawyers questioned what the ambiguity means for couples, and advocates argued about whether pursuing marriages through a legal loophole was the best strategy.
Lawmakers have been similarly vexed. While public opinion has generally shifted toward legalization and the state began recognizing unions performed elsewhere in 2011, political divisions at the state Capitol have left the issue unresolved. Both pro- and anti-same-sex marriage proposals have failed. A move toward putting the issue to a popular vote in 2014 has not gained traction.
Lower courts in the state have said couples have a right to marry under existing law. Democratic Attorney General Gary King has said the practice of barring couples from marrying is unconstitutional and refused to block counties from issuing licenses. County clerks as a group have also asked the court for a ruling.
“The clerks are there to do a job,” said Steve Kopelman, general counsel for the New Mexico Association of Counties. “They uniformly all want a decision from the Supreme Court.”
Many New Mexico Republicans have taken a stronger stance even as Gov. Susana Martinez, a Republican, has voiced support for a popular vote despite her personal opposition to gay marriage. More than two dozen lawmakers argue the courts and county clerks are subverting the legislature.
“The court, instead of trying to interpret the law, they try to make the law from the bench,” said Republican Rep. Anna Crook, who signed onto the lawmakers’ brief. “I think the clerks have gone outside the law.”
The next round of Illinois’ gay marriage debate began Tuesday, when lawmakers gathered for the first of two three-day veto sessions (the second will begin Nov. 5).
The state Senate approved a same-sex marriage bill in February and Democratic Gov. Pat Quinn said he’d sign it. But months later the House adjourned without a vote. Backers feared they hadn’t secured the necessary 60 votes to pass it and opted to avoid potential defeat.
There’s no guarantee the bill will come up for a vote, and much of the conversation around the measure has been whether backers have secured enough support this time.
For some Democrats, it’s a delicate issue. Many represent rural areas, and a strong caucus of black lawmakers has felt pressure from church groups. Democrats don’t want to endanger their majorities.
“The Democrats did very well last go-round, with Obama on the ballot and so forth, which means they’re relatively highly exposed,” said Christopher Mooney, director of the Institute of Government and Public Affairs at University of Illinois.
The state already allows civil unions. The state also has an ongoing lawsuit, backed by the American Civil Liberties Union and Lambda Legal, to overturn the existing ban that’s working its way through the courts.
Hawaii lawmakers gather in Honolulu for a special session Oct. 28 that Gov. Neil Abercrombie called to try to pass a same-sex marriage bill.
Firmly in control of both branches, Democrats are confident heading into next week’s session and opponents have been guarded. The Mormon Church, for example, which has more than 72,000 members in Hawaii, has notably taken a backseat approach compared with efforts in other states.
Passage next week would end a tumultuous year of debate in Hawaii. The legislature adjourned without a vote on any gay marriage-related bills. But by August, in the wake of the U.S. Supreme Court rulings, the state Democratic Party unanimously approved a resolution calling on its members to support a marriage measure.
In the early and mid-1990s, supporters of gay marriage scored legal victories in Hawaii arguing that the state’s practice of prohibiting same-sex unions was unconstitutional. Some say it was a 1993 ruling by the state Supreme Court allowing same-sex marriage that sparked the debate nationwide – and led lawmakers there to enact a ban a year later.
For much of the 2000s, Democratic wariness and Republican Gov. Linda Lingle combined to block efforts to change state law. But by 2011, the state moved to allow civil unions. The Supreme Court’s ruling this year provided the final push.
“The decision to call a special session is based on doing what is right to create equity for all in Hawaii,” Abercrombie said when he announced the special session.