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NEWS ANALYSIS: Winning the battle for marriage equality, one state at a time

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In 1970, Jack Baker and James Michael McConnell made history when they became the first gay couple in the U.S. to seek a marriage license.

Their request was denied by the County Clerk’s Office in Hennepin County, Minn. They sued in district court and lost.

Gay marriage may have been a novel idea in the Seventies, but it slowly gained momentum in the years that followed as gays and lesbians began to realize that committed couples were being denied a slew of legal rights afforded to married straight couples.

The federal government’s Government Accountability Office lists more than 1,138 rights and protections that the government grants to opposite-sex couples who marry. They include Social Security benefits, veterans benefits, health insurance, Medicaid, estate taxes, retirement savings, pensions, family leave and immigration law.

But as the marriage equality movement grew, Congress in 1996 passed the Defense of Marriage Act (DOMA) that prevents the federal government from recognizing the validity of same-sex marriages.

In effect, DOMA relegates gays and lesbians to second-class citizenship.

DOMA has failed to stop the movement, however, and public opinion has shifted dramatically in support of marriage equality.

Flash forward to 2011

Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and Washington, D.C., provide gay marriage under state law.

Five other states — California, Nevada, New Jersey, Oregon and Washington — provide same-sex couples with access to almost of all the state level benefits and responsibilities of marriage, through either civil unions or domestic partnerships.

In Illinois, a new law providing for civil unions will take effect on June 1.

This week, Hawaii approved civil unions, and the governor has promised to sign the bill into law.

Maryland and Rhode Island are currently debating gay marriage, and equality supporters are cautiously optimistic that both states will approve the bills.

New York’s governor wants gay marriage to be debated in his state legislature as soon as possible, and Colorado and Washington lawmakers have introduced bills in support of marriage equality. Delaware lawmakers are expected to consider civil unions legislation in March.

Currently, Maryland and New York recognize out-of-jurisdiction same-sex marriages, but do not provide marriage licenses to same-sex couples in those states. An attorney general opinion and subsequent court ruling in Rhode Island resulted in limited recognition of out-of-jurisdiction marriages of same-sex couples.

Colorado, Hawaii, Maine and Wisconsin provide gay and lesbian couples with limited rights and benefits, not all rights provided to married couples.

California recognized marriage for same-sex couples between June and November of 2008, before voters approved Proposition 8, which purports to amend the state constitution to prohibit marriage equality. Couples married during that window remain married under California law, but all other same-sex couples can only receive a domestic partnership within the state. The state will recognize out-of-jurisdiction same-sex marriages that occurred before Nov. 5, 2008, as marriages and those that occurred on or after Nov. 5, 2008, as similar to domestic partnerships.

Meanwhile, Proposition 8 has been ruled unconstitutional, and the appeal of federal Judge Vaughn Walker’s ruling is tied up in the courts.

With victories come setbacks

The march forward comes with potholes in the road toward full equality.

The Republican landslide in the November elections ushered in conservative lawmakers in places like Iowa and New Hampshire. Most campaigned on a platform of providing jobs and jump-starting the economy, but instead the first thing they began tackling were social issues. The voters were tricked.

In Iowa, voters recalled three state Supreme Court justices who had ruled for gay marriage. They also elected a Republican majority in the House, and the first order of business was to approve a bill that would put on the ballot a constitutional amendment that would ban gay marriage. Majority Leader Michael Gronstal of the Iowa Senate, taking a very courageous stand, has vowed that a similar bill will not make it through the Senate. He says he will not put people’s constitutional rights up for a public vote.

In New Hampshire, the supermajority Republican legislature has already broken its campaign promise to work on economic issues by threatening to repeal the state’s gay marriage law. The issue is now being debated in Concord. Although the Democratic governor has vowed to veto any repeal bill, the supermajority Republican-controlled legislature appears to have the votes to override the veto.

Meanwhile in Indiana, the new Republican majority in the House has voted for a ban on gay marriage — and more. They don’t even want to recognize civil unions or any other legal recognition of rights for committed gay and lesbian couples. How mean-spirited can you get?

The Wyoming Senate is likely today to pass a ban on recognizing gay marriages from outside the state, sending the bill to the governor for his signature. Wyoming already bans gay marriage within the state.

Some conservative lawmakers in states such as North Carolina and Utah are also itching to introduce anti-gay marriage legislation.

The bottom line

Same-sex couples do not receive federal rights and benefits in any state because of DOMA. For an electronic map showing where marriage equality stands in the states, visit the Human Rights Campaign website.

Ken Williams is Editor in Chief of SDGLN. He can be reached at [email protected] or by calling toll-free to (877) 727-5446, ext. 713.

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