Gay marriage faces lengthy legislative struggle

THE ISSUE Highest courts in Georgia and New York have ruled against legalizing same-sex marriages.

ADVOCATES of legalizing same-sex marriages lost court battles last week in New York and Georgia, and their hopes in other states appear bleak in the immediate future. As attitudes change, their goals are more likely to be realized in state legislatures rather than courts -- later rather than sooner.

The Georgia Supreme Court upheld a ban of same-sex marriage that was supported by 76 percent of voters who cast ballots in 2004. On the same day, New York's Court of Appeals, the state's highest court, ruled that laws enacted nearly a century ago were intended to limit marriage to a union between a man and a woman.

Decisions in similar cases are expected soon in New Jersey and Washington, and other cases are pending in California, Connecticut, Iowa and Maryland. The only state where homosexual marriage is legal is Massachusetts, where a constitutional amendment to impose a ban could go before voters in 2008.

All of this activity followed a Hawaii Supreme Court decision in 1993 that required the state to provide a compelling reason why gay marriages should be forbidden. A state judge subsequently ruled that a state constitutional amendment would be required to enforce such a ban.

Such an amendment empowering -- but not requiring -- the Legislature to restrict marriage to opposite-sex couples, affirming what the legislators already had done, was approved by nearly 70 percent of voters in 1998.

Domestic relations laws were enacted in virtually all states many decades ago, making it difficult to prove that they were intended to include gay couples. Typically, New York's 1909 law uses the terms "bride" and "groom." As Americans' acceptance of homosexuality grows, they are more likely to support broadening of those laws.

Ten years ago, 65 percent of Americans polled by the Pew Research Center opposed legalizing gay marriage. That opposition declined to 53 percent by 2003, spiked to 63 percent in a backlash to the Massachusetts Supreme Court decision in February 2004 and fell to 51 percent in March of this year. Those favoring legalization of gay marriage rose from 27 percent in 1996 to 39 percent this March.

Similar changes in acceptance of homosexuality are seen in related issues. Those in support of allowing adoptions by gay couples rose from 38 percent in 1999 to 46 percent this year, while support of gays serving openly in the military grew from 52 percent in 1994 to 60 percent this year.

Those changes have been reflected in a few states by enactment of new laws. Same-sex civil unions are permitted now in Vermont and Connecticut.

Hawaii's 1997 Legislature recognized "reciprocal beneficiaries," granting gay partners probate, hospital visitation and other rights that had been limited to spouses in heterosexual marriages. Hawaii also forbids sexual-orientation discrimination in employment.

Alan Van Capelle, executive director of the Empire State Pride Agenda, said it had taken 31 years of lobbying before New York passed a law prohibiting sexual discrimination. "I promise the couples that it won't take 31 years," he said after last week's Court of Appeals ruling.