Gay Marriage Opponents Line Up Legal Challenges

While thousands of same sex couples in New York state line up to get their marriage licenses, opponents of the new law are already looking for legal grounds to overturn the newly passed legislation — and stop efforts to pass similar laws in other states.

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LINDA WERTHEIMER, host: Around the country, New York's law legalizing same-sex marriage has given new momentum to the push for similar legislation in other states.

NPR's Tovia Smith has been following all of this and she joins us from Boston. Good morning, Tovia.

TOVIA SMITH: Good morning.

WERTHEIMER: So how do these now-legal gay weddings in New York affect the larger battle over same-sex marriage?

SMITH: In some ways you could say that it jacks it up, both inside New York and out. Within the state, opponents are now vowing to defeat what they call these Benedict Arnold lawmakers. And they're trying to bring the issues to voters directly in a referendum. You may recall in the past, opponents objected to what they called the activist judges doing this. Now they're objecting to what they call the corrupt legislative process.

As they point out, every time gay marriage has come to a popular vote, it has lost. But in New York anyway, that is a long and hard process to get the issue on the ballot. But nationally, yes, New York is a biggie. Advocates are calling this a tipping point. New York doubles the number of Americans living in states where gay marriage is legal.

And as more people live with it and get used to seeing same-sex married couples, advocates that that softens opposition and helps their case, and they're hoping New York encourages political support elsewhere, as it begins to appear that supporting gay marriage is less radical, less politically risky.

WERTHEIMER: It's probably fair to say that supporting gay marriage is less risky these days, given the way public opinion polls are going.

SMITH: For sure, public support for gay marriage for the first time has crossed into majority territory. It's at 53 percent or so. And more striking when you break it down by age. There's much more support among younger folks. That's somewhere around 70 percent. So as advocates say the writing is on the wall, and they're not perhaps the only ones taking note.

It's interesting that in stark contrast to even just a few years ago, you see a lot of elected officials now on Capitol Hill this week at the hearing to repeal the Defense of Marriage Act. On the campaign trail, a lot of opponents of gay marriage these days are playing the issue down, not up.

WERTHEIMER: So do you think the shift in public opinion has been a real game changer, will be a real game changer on gay marriage?

SMITH: Especially so now. I think until now, gay marriage has come around, you know, through the courts and the legislatures. But we're getting into a new phase where gay marriage is one way or another headed for popular votes. And that's because most of the states that don't already have gay marriage do have either an explicit ban - a Defense of Marriage Act - that would have to be overturned by voters, or they have a recall process, so if lawmakers pass gay marriage, for example, a law would be immediately put to the test of a ballot initiative for repeal, as we saw in Maine. So if the past is any indication, we can expect some pretty heated fights around popular votes in the next couple of years.

WERTHEIMER: You talk about the Defense of Marriage Act. There were congressional hearings this week on whether the federal Defense of Marriage Act should be repealed. That bars federal recognition of gay marriage.

Do you think something like that could happen?

SMITH: It's gaining momentum. You know, DOMA signed by President Clinton, of course, 15 years ago. Now President Obama is calling for repeal, and that would be significant in states where gay marriage is already legal, because federal recognition would mean that same-sex couples would get the whole loaf, as they say, not just half. They'd be married in the eyes of the federal government and get those benefits, as well as in the eyes of their state.

But there are also broader and even more high-stakes challenges to DOMA working their way through the federal courts. One from California arguing that the state DOMA violates the federal constitution. Another from Massachusetts seeking federal recognition.

Ultimately, this will all land at the U.S. Supreme Court in the not-so-distant future.

WERTHEIMER: NPR's Tovia Smith, thank you very much.

SMITH: Thank you.

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