Any day now, the Maryland Supreme Court may decide whether same-sex couples have a right to marry.
After Massachusetts' highest court extended that right in 2003, many lawyers expected a cascade of lawsuits in other states. But resistance from conservative legal groups and the public has been stiffer than expected, forcing advocates to abandon the courts and settle for civil unions — at least for now.
A Stepping Stone to Marriage
Maria and Lidia Agramonte-Gomez live with a 90-pound dog and five cats in a house perched at the top of a hill in New Britain, Conn. They met seven years ago and have lived together for six. On an April evening, they sat around eating flan for dinner and talking about Oct. 1, 2005. On that crisp New England day, Connecticut offered civil-union licenses for the first time in its history. Maria and Lidia rushed to the statehouse.
"We got up early, because I was concerned there would be a lot of people, and I didn't want to spend the whole day there," Maria recalled. "But there were only 26 people, so we ended up being first."
The civil union was historic, but Lidia saw it as a necessary stepping stone to marriage.
"Because we can go back and we can say to people, 'We have tried this civil union, this new social construct. And it isn't equal,'" Lidia said. "If we had never tried it, then the argument on the other side, I think, would have been, 'How do you know it doesn't work, if you haven't given it a chance?'"
Now the two women, along with other couples, are lobbying for Connecticut to take the next step: to enact a same-sex marriage bill. The Agramonte-Gomezes recently invited a state senator to their house, to meet with straight and gay folks about why they support same-sex marriage. Maria testified in March before the state legislature's Judiciary Committee, a 12-hour marathon of testimonies for and against gay marriage. If the committee decides to approve a marriage bill, it will go before the full legislature.
Maria and Lidia embody the shifting strategy of advocates for same-sex marriage. Advocates long ago decided that it was too risky to allow these cases to go before federal courts, since they believe the current U.S. Supreme Court would not be favorably disposed toward this new type of marriage. But they have also shifted away from fighting in state courts. Instead, they're wooing state lawmakers.
"We actually have seen a record number of states this year in which bills were introduced to end gay couples' exclusion from marriage," says Evan Wolfson of Freedom to Marry. "Some of them will move forward. Some of them may move forward slowly over a period of a few years. And some of them will see a nonlinear progress, where they may move toward marriage, but through other measures, such as partnership or civil union, on the way to marriage equality. But the conversation has begun, and it's begun at the right level."
Recently California, Illinois, New Jersey, New Mexico and Washington state have considered changing state laws prohibiting same-sex recognition. In New Hampshire, the state House has approved a civil-union bill, and the Senate is expected to pass it Thursday. Vermont already has civil unions, and New Jersey — faced with a command from the state's highest court to strike down discrimination — passed a civil union law rather than a marriage law.
A Narrowing Window of Opportunity
This "conversation" about gay marriage — or pitched battle, depending on your point of view — began in earnest in 2003, when the Massachusetts Supreme Court legalized same-sex marriage. That ruling set loose a frenzy of nuptial activity: First, Mayor Gavin Newsome of San Francisco handed out hundreds of marriage licenses to same-sex couples. His actions were replicated by officials in Oregon, New York, New Jersey and New Mexico.
But according to Greg Lavy, senior counsel at the Alliance Defense Fund, which opposes gay marriage, as the television news showed men wedding men and women kissing women, the American public balked.
"People looked at that and said, 'Wait a minute, that's not marriage. Marriage is the union of a man and a woman,'" he says. "So there was a big public backlash, which resulted in a lot of marriage amendments since then."
In 23 states, voters have changed their state constitutions to prohibit same-sex marriage; most of the other states have laws that do the same thing. As gay couples sued to change the laws in state courts, they were repeatedly slapped down. In 2006, of the 12 cases before state or federal courts, gay-rights advocates lost 10.
"That was a good year," Lavy observes, "particularly in July. Six of those were in July."
Now, gay marriage advocates face the possibility of victory in only a handful of state courts. Even states targeted as open to gay marriage – such as New York and Washington state — upheld laws defining marriage as between a man and a woman. According to Matthew Staver, founder of Liberty Counsel, a legal group that opposes same-sex marriage, as the momentum shifted, so did the legal strategy for gay-marriage advocates.
"I think within the judicial landscape... the window of opportunity has narrowed significantly," says Staver. "So rather than making the macro steps which they hoped to do in these states, they have to retreat, and make micro steps, and re-gather, and move forward with a longer-term assault."
A Long Legal Battle Ahead
Rather than challenging marriage statutes straight on, gay-marriage advocates are trying to win incremental rights, such as domestic partnership benefits, or hospital-visitation rights. David Buckel, a senior attorney at the gay advocacy group Lambda Legal, says he never expected a straight line to gay marriage.
"There were disappointments in the courts, but there have been successes as well," he says. "This is how these civil rights movements go forward — with ups and downs. And the question really is whether or not we're in it for the long haul, trekking all the way to the end, even though there are some valleys and mountains. And the answer is yes."
He points out that California became the first state to rule that interracial couples could marry in 1948. It took another 19 years before the U.S. Supreme Court sanctioned it in 1967. Evan Wolfson at Freedom to Marry says the years in between were peppered with setbacks.
"If people had stopped after the first challenge or after the third challenge or after the 13th challenge, we may have gone a very, very long time in this country before we saw an end to race restrictions on who could marry whom," Wolfson says. "But the 14th one was the charm. So the point of that story is that courts don't always get it right, and you have to keep at it."
For her part, Maria Agramonte-Gomez believes that same-sex marriage is inevitable — that demographics are on her and her partner's side.
"I've talked to a lot of much younger people than me, and the next generation, they're there," she says. "So it may wait till we all die off, but it's going to happen."
A Pew Forum poll last year found that 70 percent of people older than 50 still oppose gay marriage. But more than half of those polled who were younger than 30 said that gay marriage should be the law of the land.