Wednesday, November 7, 2012

Voters in Maryland, Maine and Washington To Approve Gay Marriage

Well, it seems to have happened.  All three of the states - Maryland, Maine and Washington - where same-sex marriage ballot initiatives were voted on yesterday, appear to be creating the right of same-sex marriage.  They join six other states (Massachusetts, Connecticut, New Hampshire, Vermont, Iowa, and New York) for a new total of nine states, plus the District of Columbia, where gay and lesbian couples may now marry.

(The vote has not yet been officially announced in Washington state, but is expected to come soon.)

These new states will be the first to create marriage equality through a popular vote, rather than through judicial or legislative action.  Three states, including our own Massachusetts, as well as Connecticut and Iowa, have judicially-created gay marriage.  The other three states, Vermont, New Hampshire, and New York, have legislatively-created gay marriage.

No doubt popular support for gay marriage equality is growing.  I continue to hope that family law scholar Joanna Grossman was right when, early this year, she optimistically foresaw, as her article title itself (following link) suggested, "the beginning of the end of the anti-same sex movement."  Indeed, another hopeful sign, from yesterday, was that Minnesota's voters rejected the ballot initiative there which called for a state constitutional amendment limiting marriage to the traditional, heterosexual marriage between a man and a woman.

I fear, however, that I may also be right in my own more pessimistic response that although progress is real, it is likely to continue to be rather slow.  (Here I am reminded of one of my favorite George Orwell quotes: "Progress is not an illusion, it happens, but it is slow and invariably disappointing.") Just as there will be a few states moving in the direction of equality, I believe there will continue to be, for many years, a large majority of states where social conservatives stubbornly refuse to recognize gay marriage.  After all, we're still only up to 9 states plus D.C..  That leaves 41 states without gay marriage, many of which already have bans on gay marriages. And of course we are still living with the federal statute (the Defense of Marriage Act).

Stay tuned.   The U.S. Supreme Court will surely weigh in soon on at least some of the issues presented by the laws for and against gay marriage.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

2 comments:

Scott Morgan said...

Steven thanks for the great post. I am afraid I agree with you that while there is progress being made there will be definitely be some holdout states for years to come. I live in one of them. Texas has actually gone to the extent of passing a constitutional amendment defining marriage as a union between a man and a woman.

This creates some unique legal issues, such as when a gay couple legally marries in another state, then moves to Texas and later wants to divorce. Currently they can't divorce here because the state doesn't recognize theirs as a legal marriage, yet Texas is the only state where the meet the residency requirements to divorce. A hell of a catch 22. I wrote a post about it here: http://houstondivorce.com/blog/2009/01/gay-divorce-in-texas/

Steven Ballard said...

So true, Scott. I used to report here on my blog about such conflicts, but as time has gone on, there have been too many such issues for me to cover them all. There is too much inconsistency and uncertainty. There are so many dilemmas for same-sex marriage couples. Of course even Massachusetts gay or lesbian couples who never leave this state have issues related to the federal non-recognition of gay marriages. An interesting problem, given that last year Secretary of State Hillary Clinton called gay marriage a human rights issue. Her words as Secretary of State obviously are at odds with federal law (DOMA) at the moment. It will be interesting to see if, how and when these conflicts will be resolved.