(UPDATED 10-23-2013 with court arguments)
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 were argued Wednesday – along with coming legislative battles in at least two more states – could prove significant in the debate over gay marriage.
Stateline examined fresh actions in four states: Wisconsin, New Mexico, Illinois and Hawaii.
The Wisconsin Supreme Court on Wednesday tested the boundaries of what could define a “domestic partnership” in the state without violating a voter-approved constitutional ban on same-sex marriage.
Opponents of same-sex marriage sued the state over the domestic partnership registry, arguing that it violates the gay marriage ban passed by voters in 2006. Those defending the registry argued that it was intended only to provide limited benefits to same-sex couples, but with significant differences.
The justices questioned attorneys for both sides about what changes would have to be made to uphold the law under the state's gay marriage ban. Some of the justices seemed guarded about striking down the entire measure, which is what opponents have asked the court to do.
Attorney Austin Nimocks of the Alliance Defense Fund argued that the registry law was written to explicitly look like marriage, including requirements that the two people be of a certain age and not be blood relatives. Those would only be included, he said, “If they were trying to mimic marriage.”
Christopher Clark, an attorney with the gay advocacy group Lambda Legal, countered that the partnership is so limited, both from a legal standpoint and from the benefits it allows, that it's far enough removed from a marriage to be considered constitutional. He said there's no obligation for one partner to support the other, as there is in a marriage, and said that one partner could unilaterally end a partnership by signing a piece of paper – a simple task compared to divorce proceedings.
Justice Michael Gableman pressed Clark on the structure of the law. “What's the purpose of the requirements if not to mimic marriage?” he asked.
“This is a far cry from a legal marriage,” Clark countered, saying that the law was written to give some couples limited benefits. He pointed out that, for legal purposes, the federal government refuses to recognize domestic partnerships despite the Supreme Court's gay marriage ruling last summer.
Wisconsin voters approved the 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.
Opponents see the case as more than a debate over technicalities. Wisconsin Family Action, which first supported the suit, 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.
A majority of the New Mexico Supreme Court asked skeptical questions Wednesday of attorneys arguing that state law bans same-sex marriage.
The state high court waded into a debate that's been simmering there for more than a decade. In two hours of arguments, the justices pressed attorney James Campbell, representing more than two dozen Republican lawmakers, as to whether current law bans same-sex marriage and, if it does, what interest the state has in continuing that policy.
The question is significant because New Mexico is the only state in the U.S. without a law that explicitly bans or allows same-sex marriage. The ambiguity led to 64 same-sex couples marrying on one day in 2004, and more than 1,400 couples marrying since a handful of counties began issuing marriages for same-sex marriages in August.
Campbell argued that when the state's marriage laws were first enacted more than a century ago, policymakers had no reason to consider same-sex marriage as a possibility. Along with that, he argued, lawmakers and courts have for years assumed marriage was limited to one man and one woman, so state law should be understood as always prohibiting gay marriage. He cited decisions in four other states supporting that definition of marriage.
A number of justices questioned his argument, with Justice Charles Daniels asking why lawmakers have tried to introduce measures to ban gay marriage if it is already prohibited. In pointing out a catch-22 for same-sex marriage supporters trying to change an ambiguous law, Daniels asked, “How do you repeal an assumption?”
Campbell faced equally skeptical questions about why the state should ban gay marriage, with justices pointing out that the state recognizes same-sex marriages performed elsewhere. They pressed him to deliver evidence that the state had an interest in limiting marriage to opposite-sex couples, echoing arguments heard at the U.S. Supreme Court last spring.
Assistant Attorney General Scott Fuqua reiterated the state's position that current law doesn't allow same-sex couples to marry, but that the policy is unconstitutional. The attorney general, Democrat Gary King, has refused to prohibit counties from issuing same-sex couples marriage licenses.
The second hour of arguments focused on broader constitutional questions. Attorney Maureen Sanders, representing same-sex couples who've married since August, and Sean Cunniff, also of the Attorney General's office, agreed that barring same-sex couples from marrying was unconstitutional.
“Today is a historic moment in the history of New Mexico,” Sanders told the court, saying same-sex couples had a fundamental right to marry under the state constitution.
Some justices on the court were skeptical of that claim, asking to what extent the state should be allowed to bar some of its citizens from marrying. Others wondered aloud how they could declare the state's ban on gay marriage unconstitutional when it's not even clear that such a ban exists.
Campell argued the state had the right under its own constitution to ban gay marriage, and that lawmakers have used it. If there's any ambiguity, he added, the question of whether or not a ban should be put in place should be left to the legislature, not the courts.
Two justices on the court – Chief Justice Petra Jimenez Maes and Justice Barbara Vigil – brought up an alternative solution of putting the matter before voters.
While Campbell supported a political solution to the problem, both Sanders and lawyers representing the Attorney General's office rejected that, saying that under the state's constitution, any policy that bars same-sex couples from marrying – no matter how it's enacted – is unconstitutional. The legislature thus far has declined to put the issue on an election ballot.
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.