Court victories Thursday in two states have turned the nation's focus back toward protecting marriage — and there is much to be optimistic about.
Even with the highest state courts in New York and Georgia ruling in favor of traditional marriage, as they did Thursday, the battle to defend society's bedrock institution is still being fought in state and federal courtrooms nationwide.
What's more, the November elections will place the issue of how marriage should be defined in front of voters in as many as eight states. Twenty states have already approved marriage-protection amendments to their constitutions, most by margins of at least 70 percent.
Nebraska is one of those states — but its amendment has yet to be implemented, thanks to the intervention of judicial activists.
"A federal court in Nebraska has already overruled traditional marriage," explained Bruce Hausknecht, judicial analyst for Focus on the Family Action. "A federal district judge ruled that the state marriage amendment — passed by 70 percent of the state's voters in 2000 — violated the U.S. Constitution."
The case is currently on appeal, just one of many caught up in a morass of federal challenges:
• A federal court in Oklahoma has been asked to declare that the state's marriage amendment is unconstitutional.
• A federal court in Washington state has been asked to declare the federal Defense of Marriage Act (a legislatively enacted law, known colloquially as DOMA) unconstitutional. The court has also been asked to recognize Canadian same-sex marriage for federal law purposes.
• A federal appeals court in California has been asked to declare that California's marriage laws — which don't allow same-sex unions — violate the U.S. Constitution. The case has been sent back to trial court.
• A federal court in Minnesota has been asked to rule that it is unconstitutional for the Internal Revenue Service to refuse to acknowledge same-sex marriage.
And that doesn't even take into account the battles raging in state courts.
"Two cases in Washington state, heard by the state Supreme Court in 2005, are demanding that same-sex marriages be created judicially," Hausknecht said. "The cases have yet to be decided."
And Washington State is not alone:
• In California, several cases have been consolidated into one appeal from trial-court decisions holding that California's marriage status violates the state's constitution. The cases are working their way through the appellate courts.
• New York, New Jersey, Connecticut, Maryland and Iowa are facing similar challenges to state marriage statutes. In New York and Maryland, trial courts have already held in favor of same-sex marriage in at least one case each.
• Georgia, Tennessee, Oregon and Massachusetts each face challenges to ballot initiatives intended to limit marriage to one man and one woman.
The legal threat to traditional marriage, in addition to leading 20 states to pass marriage-protection amendments, has led to others passing DOMAs of their own. Nineteen states currently have DOMAs as their only means of preserving the traditional definition of marriage; additional states have some sort of legal protection for marriage, but it does not rise to the level of a Defense of Marriage Act (see sidebar map).
And they remain ripe for legal challenges, according to Hausknecht.
"The courts should be willing to accept the legislature's judgment on marital issues, but a DOMA is susceptible to constitutional challenges charging that it violates either that state's constitution or the U.S. Constitution," he said. "We have seen numerous state and federal lawsuits over the years that do exactly that."
The first way to protect a state DOMA, Hausknecht said, is to enact a state marriage amendment which prevents a state constitutional challenge. That is why some states that had DOMAs have gone a step further and passed a constitutional amendment (see sidebar map).
Massachusetts did have a state law defining marriage as the union of one man and one union — but not a constitutional amendment. The actions of a rogue court determined that law to be unconstitutional. Gay marriage is now legal in that state.
In November, as many as eight states will have the opportunity to add marriage- protection amendments to their state constitutions. Six of them — Idaho, South Carolina, South Dakota, Tennessee, Virginia and Wisconsin — are guaranteed to put a ballot measure before voters this fall, and two others are in the process of collecting signatures to do the same.
• Protect Marriage Arizona turned in petitions containing 307,576 signatures to the secretary of state on Thursday. State law requires 183,917 valid signatures — those of registered voters — for a ballot initiative to qualify.
• Coloradans for Marriage is currently circulating petitions and must turn in 67,829 valid signatures by Aug. 7 to place the amendment on November's ballot.
Even if all these amendments pass, with the quagmire of legal challenges ongoing, Hausknecht said the need for the federal Marriage Protection Amendment (MPA) is greater than ever.
"Since even a state marriage amendment is subject to being overturned because of a federal constitutional challenge," he said, "then only a federal marriage amendment can ultimately provide the protection we need from activist judges eager to redefine marriage for the rest of us."
Amanda Banks, federal issues analyst for Focus on the Family Action, agreed, saying the House of Representatives will vote on the MPA during the week of July 17.
"When the House voted in 2004, they got a majority vote, but not the two-thirds necessary to pass the amendment," she said. "We are hoping to increase that majority this time."
But if the amendment doesn't pass, is it all gloom and doom? Not at all, said Hausknecht.
"It seems as if more and more courts are 'getting it,' " he said. "Marriage is best left to the will of the voters and their elected representatives."
Not only is that constitutionally correct, he said, but it's politically smart for judges to avoid the firestorm of criticism that was generated against the Massachusetts Supreme Judicial Court after it legalized same-sex marriage.
"At this point," he noted, "any judge who concludes that either a state or federal constitution 'requires' the imposition of same-sex marriage finds him or herself all alone legally and politically — and rightly so."
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