Last week in gay marriage, which brought groundbreaking developments in Iowa and Vermont, underlined the patchwork nature of our country’s legal fabric, leaving citizens across the country scratching their heads: “What does it mean?” “What happens next?”
ACLU Director Matt Coles has written a short guide to the issue at the ACLU blog, where he explains that the future of gay marriage hinges on what happens in states like Colorado.
Coles says that there are roughly 11 states where the next round of developments is likely to break, with New York high on the list.
The key site of struggle, however, is the 29 states such as Colorado that passed constitutional amendments banning gay marriage — because constitutional amendments are so difficult to change.
There are just two ways to get marriage now in those 29 states. First, you could go to the voters to get the amendments repealed. That’s a very costly process, and one not likely to work in many of the states with amendments (like Alabama and Mississippi).
You could instead go to the federal courts, and ask them to rule that the state constitutional amendments violate the federal constitution. But that’s not a very good bet. A few years ago, the ACLU and Lambda Legal sued to set aside the most egregious amendment, Nebraska’s (it bans every form of relationship recognition for same-sex couples, and none for heterosexuals). We lost, in a moderate federal appeals court.
Moreover, any federal case in which we win will surely wind up in the Supreme Court. Winning there is a long shot anytime soon. Losing could prevent us from winning state cases and might even hurt us in cases about parenting, schools and jobs.
Coles writes that 19 of the states with anti-gay marriage amendments have banned anything similar to marriage or any kind of recognition. There’s little action that can be taken in those states to bring change any time soon.
But in a state like Colorado, where the Constitution bans gay marriage but not other forms of recognition, gay marriage advocates can work to pass laws offering civil unions or domestic partnerships.
And that’s exactly what’s happening here. Proponents of a 2010 civil unions ballot initiative are beginning to collect signatures now.
According to Coles, lining up legal recognition of rights in swing states like Colorado will go a long way toward winning equality coast to coast.