Prop. 8 likely to re­main

The Washington Times Weekly - - Culture, Etc. -

Gay mar­riage is on the march, so here’s a run­down about two re­cent events with na­tional im­pli­ca­tions. First up is the ques­tion of whether Cal­i­for­nia will again be a gay mar­riage state.

We’ll know for sure by early June. But af­ter the March 5 ar­gu­ments at the Cal­i­for­nia Supreme Court, many ob­servers, my­self in­cluded, do not see the court throw­ing out Propo­si­tion 8. If that’s the case, gay mar­riage is over for the Golden State, al­though it re­mains le­gal in Mas­sachusetts and Con­necti­cut.

Prop. 8, of course, is the voter­passed con­sti­tu­tional amend­ment that says only mar­riages of one man and one woman are valid or rec­og­nized in Cal­i­for­nia. It was put on the bal­lot to trump any Cal­i­for­nia Supreme Court rul­ing le­gal­iz­ing gay mar­riage.

The court did, in fact, le­gal­ize gay mar­riage last May, but when Prop. 8 passed in Novem­ber, the court stopped the mar­riages.

At the March 5 oral ar­gu­ments, gay mar­riage ad­vo­cates asked the court to throw out Prop. 8 be-


cause it il­le­gally “re­vised” the con­sti­tu­tion, but most jus­tices just didn’t seem to buy that ar­gu­ment. The peo­ple have an in­alien­able right to change their con­sti­tu­tion, one jus­tice said.

What about the 18,000 gay cou­ples who mar­ried in Cal­i­for­nia last year? Be­cause they did so un­der the color of law, their unions should re­main le­gal, the jus­tices seemed to say.

At times, the three-hour col­lo­quy be­tween lawyers and jus­tices was just riv­et­ing. It can be seen in the video archive (the case is Strauss v. Horton) at www.calchan­

A sec­ond le­gal front in the march for gay mar­riage also opened this month.

The case, Gill v. Of­fice of Per­son­nel Man­age­ment, is aimed at throw­ing out the 1996 De­fense of Mar­riage Act (DOMA), which lim­its fed­eral ben­e­fits to mar­riages of one man and one woman. It also tells states they don’t have to rec­og­nize out-of­s­tate gay unions.

The law­suit, filed March 3 in District Court of Bos­ton, is brought by eight mar­ried gay cou­ples and three gay wid­ow­ers, all of Mas­sachusetts.

They say that DOMA is un­fairly de­priv­ing them of fed­eral ben­e­fits, such as fed­eral health care, So­cial Se­cu­rity sur­vivor ben­e­fits and spousal be­reave­ment pay­ments.

“Same-sex mar­ried cou­ples have taken on the com­mit­ment of mar­riage, play by the rules and pay into the sys­tem,” said Mary Bo­nauto of Gay & Les­bian Ad­vo­cates & De­fend­ers, which won the land­mark Mas­sachusetts and Con­necti­cut gay mar­riage cases. It’s time for the fed­eral gov­ern­ment to “end its bla­tant dou­ble stan­dard,” when it comes to mar­riage rights and pro­tec­tions, she said.

A DOMA chal­lenge had been ex­pected: It’s the “leg­isla­tive Holy Grail” for gay rights ac­tivists, say leaders of the Al­liance for Mar­riage (AFM), an or­ga­ni­za­tion launched in 1999 to pre­vent fa­ther­less homes, strengthen tra­di­tional fam­i­lies and pro­tect DOMA.

Congress also hasn’t shown a will­ing­ness to over­turn DOMA, but that may now change un­der the Obama ad­min­is­tra­tion and the Demo­crat-led Congress. “Fed­eral law should not dis­crim­i­nate in any way against gay and les­bian cou­ples, which is pre­cisely what DOMA does,” Pres­i­dent Obama said while cam­paign­ing.

Since 37 states have their own DO­MAs and 30 states have voter­passed amend­ments out­law­ing gay mar­riage, a re­peal of DOMA would be both dizzy­ing — and far-reach­ing.

Ch­eryl Wetzstein can be reached at cwet­zstein@wash­ing­ton­

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