Emboldened, gay marriage activists eye 50 states

Marisol Bello | USA TODAY

The Supreme Court ruling that struck down parts of the Defense of Marriage Act in June opened the door to an explosion of activity by gay marriage proponents.

Same-sex marriage is now legal in Hawaii after Gov. Neil Abercrombie signed a bill Wednesday. In Illinois, Gov. Pat Quinn will sign a similar bill Nov. 20.

That makes 16 states, plus the District of Columbia, where two men or two women may legally wed.

Activists are pushing for more, waging a campaign in legislatures, filing lawsuits and encouraging public officials to defy state bans.

Since June, couples have filed 23 lawsuits to end bans in 21 states; governors and state attorneys general in at least three states have refused to defend their state bans in court; and county clerks in four states have issued marriage licenses to gay couples despite laws against it.

Opponents see the efforts as "lawless" attempts to circumvent the will of the majority, including in places that have voted for gay marriage bans.

The Supreme Court ruling invalidated a section of the 17-year-old Defense of Marriage Act that denied federal benefits, such as Social Security survivors benefits and joint tax filing, to married gay men and lesbians in states that allow gay marriage. That measure, the court declared, existed primarily "to demean those persons who are in a lawful same-sex marriage." The landmark decision emboldened activists to argue that if the federal government can't discriminate against married gay people, neither can the states.

SURPRISINGLY SWIFT CHANGE

The flurry of activity has given Patrick Bova and James Darby of Chicago hope that they might see what was once unimaginable in their 50 years as a couple: legal gay marriage in all 50 states.

Bova, 75, and Darby, 81, grew up in a time when gays and lesbians led closeted lives in fear of discrimination or violence. They marvel at the shifting attitudes.

"The notion that you can get married, and even adopt children, was so foreign to us," Bova says. "It never occurred to me that it was possible to do, and now it is."

The number of Americans who favor same-sex marriage has been creeping up. In the mid-1990s, opinion polls showed, at most a quarter of people supported gay marriage, says Michael Klarman, a Harvard law professor who wrote From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage.

Fast-forward more than 15 years to a September poll by Bloomberg, which found that 55% of Americans support allowing gay and lesbian couples to marry. The national poll found 36% were opposed.

"This is demonstrably inevitable," Klarman says.

Gay marriage opponents are not convinced.

Thirty-four states ban same-sex marriage, most through constitutional amendments, notes Peter Breen, senior counsel at the Thomas More Society, a Chicago law firm that advocates for traditional marriage.

In Illinois, the state's anti-gay marriage law was overturned when the Legislature approved gay marriage, but Breen says the almost year-long legislative struggle demonstrates that legalizing gay marriage is not a slam dunk.

"When you look at Illinois, it was assumed they'd go for same-sex marriage," because the state leans liberal and Democratic, he says. But repeated efforts this year to pass a law recognizing same-sex marriage failed when the bills passed in the state Senate but not the House. The bill passed the Senate again this month and on Tuesday passed the House, 61 to 58.

Breen says gay rights advocates are using the courts and county clerks to make an end run around voters who approved the bans.

"It's lawless," says John Eastman, chairman of the National Organization for Marriage. "The clerks in states like Pennsylvania and New Mexico are issuing licenses without the legal authority to do it. The advocates know that they lose if they put this to the vote of the people."

AN ECHO OF THE PAST

The fight for gay marriage is reminiscent of the black civil rights movement of the 1950s and '60s because advocates are waging it on several tracks, says Jose Gabilondo, a law professor at Florida International University. Advocates then fought in the courts and through acts of civil disobedience such as lunch-counter sit-ins.

New Mexico, the only state that doesn't explicitly allow or ban gay marriage, entered the fray when Dona Ana County Clerk Lynn Ellins, a Democrat who supports gay marriage, began issuing marriage licenses to same-sex couples in August. Since then, seven other county clerks have issued licenses to more than 1,000 couples.

In a suit brought by six same-sex couples who were denied marriage licenses, the state Supreme Court is considering whether licenses can legally be denied to gay couples. The court is also deciding whether the licenses already issued are valid. The justices did not say when they would issue a ruling.

Fifteen Republican lawmakers are defending the state's right to deny marriage licenses to same-sex couples after Democratic Attorney General Gary King and Republican Gov. Susana Martinez declined to do so.

Therese Councilor, 52, and Tanya Struble, 47, who live an hour north of Albuquerque in Jemez Springs, initially sought and were denied a marriage license, but over the summer, they were among the first to receive a license and get married.

Their wedding capped a love affair that began 23 years ago when the two met while putting on a product show for IBM.

Councilor and Struble say they would not consider a civil union or domestic partnership because it relegates them to second-class status. Unlike marriage, a civil union or domestic partnership grants couples different rights in different states.

"Nobody when they are kids dreams about walking down the aisle and getting civil unionized," Councilor says. "Why can't we be in the same category? It's separate and not equal."

MOVEMENT IN THE SOUTH

Even conservative bastions in the South are seeing activity. Lawsuits challenging bans have been filed in Arkansas, Tennessee and North Carolina.

In the latter, Buncombe County Register of Deeds Drew Reisinger, a supporter of gay marriage, has accepted marriage applications from same-sex couples. He said he was moved to do so by the Supreme Court ruling. He was stopped by Democratic Attorney General Roy Cooper, who says the licenses were illegal because North Carolina voted last year for a constitutional amendment banning same-sex marriage. The ban passed with 61% of the vote.

Still, things are happening a lot faster than Brenda Clark, 66, or her partner of 25 years, Carol McCrory, 69, thought possible.

"I thought I'd be 90 before I saw the laws change," says McCrory, a retired teacher.

Two years ago, they had T-shirts made to wear every time there is a development in the fight for gay marriage.

"Before I die," the shirts say. They've been donning the shirts a lot these days.