Plotting Strategy in the Gay-Marriage Debate: Pro Gay-marriage supporters suffered two high-profile defeats in recent days. More legal battles are ahead. What's next for activists on each side? Brad Sears, an advocate of same-sex marriage, gives Sheilah Kast his view.
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Plotting Strategy in the Gay-Marriage Debate: Pro

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Plotting Strategy in the Gay-Marriage Debate: Pro

Plotting Strategy in the Gay-Marriage Debate: Pro

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SHEILAH KAST, host:

Late last week, supporters of gay marriage suffered two high-profile defeats. The six justices of the Georgia Supreme Court unanimously reaffirmed that state's ban on same-sex marriage. In New York, the Court of Appeals ruled 4-2 that denying same-sex couples the right to marry does not violate the state constitution.

Battles over gay marriage continue this week. In California tomorrow, the Court of Appeals faces a marathon day of arguments in six cases about whether the state's constitution can exclude same-sex couples from marriage. Later in the week, the legislature in Massachusetts, the only state where same-sex weddings are now legal, will consider a proposed constitutional amendment to ban gay marriage.

All this raises the question, what's next for activists on each side of the issue? Today the first of two perspectives. To find out what's on the minds of advocates for same-sex marriage, we've called Brad Sears. He's the executive director of the Williams Institute on Sexual Orientation Law and Public Policy, a think-tank at the University of California, Los Angeles. Welcome.

Professor R. BRADLEY SEARS (University of California, Los Angeles): Thank you, it's great to be here.

KAST: So, let's start with New York. Activists there seem disappointed, yet hopeful. Why is that?

Prof. SEARS: I think they're disappointed because this was a pretty big reality check for gay rights advocates. For the first time, a state's highest court did not find a statute unconstitutional that excluded gay and lesbian couples from marriage. The hope was in that the court really didn't make a substantive decision on the issues; instead it really deferred to the legislature, and actually said it hoped the legislature would be the ultimate decider of this issue. So advocates were picking up that suggestion, and turning to the legislature.

KAST: Okay, let's look at Georgia. Two years ago, 76 percent of voters approved a measure to ban gay marriage. Now that judges have kept that intact, what's the recourse there for supporters of same-sex marriage?

Prof. SEARS: I think that's pretty much foreclosing any opportunity to proceed in the short term in Georgia. There is now a bar on proceeding, either through the court or the legislature, on passing a same-sex marriage law or an alternative, something like a civil union or a domestic partnership statute.

KAST: California. Gay couples already have domestic partnership benefits. So what's at stake in the cases being heard there this coming week?

Prof. SEARS: Well, this is a unique case, and really the first time we're going to see a case in this posture, where the decision is really one of, is separate equal, or is it not equal in the case of gay marriage? So, the state does not allow marriage, but it does allow same-sex couples access to almost all the rights of marriage through domestic partnership. The state can't argue, like the reasoning in the New York opinion, that marriage shouldn't be provided to same-sex couples because it may harm children, because parental rights are already provided to same-sex couples through domestic partnership.

KAST: In light of last week's rulings, what do you expect to happen in Massachusetts, where the highest court has legalized same-sex marriage? A constitutional amendment needs approval of 50 of the 200 legislators.

Prof. SEARS: We're seeing a repeat of something that was already tried by gay rights opponents to reverse a court decision in Massachusetts, and that's using a constitutional amendment process. It looks like there may be enough votes for this step Wednesday, which is step one, an approval by the legislature. That step has to be repeated again, so step two is another legislative vote in a year. And then, in 2008, this would go to the voters.

I think gay rights advocates are banking on the hope that with a lot of experience by citizens in Massachusetts, with neighbors who are gay and lesbian couples and who are married, they just won't see this as an issue, kind of these fears of what will happen if we allow gays to marry will not have come true, in fact, in the state, and therefore will not support the measure openly.

KAST: And so what strategies, from your perspective, would be most useful?

Prof. SEARS: Well, I think we see both sides picking, forum picking, going to the forum that's best for them. For opponents of gay rights, that's meant going to the legislature or going to the people largely. We have 45 states who have passed statutes or constitutional amendments prohibiting same-sex marriage.

Gay rights advocates have, up until now largely thought the court was the better venue. So right now you have eight pending court challenges, challenging statutes that limit marriage to different sex couples. But we just saw, in New York, that that isn't always the best venue for gay rights advocates, and they're increasingly looking to the legislature.

KAST: Well, and that is an even wider question, whether it, from your perspective, is the best strategy to continue to push for marriage rights, state by state, or would you have more chance of success pushing for civil unions or domestic partnerships?

Prof. SEARS: If you look at public opinion right now, definitely there is more support and broader support for something that's not called marriage. I think the real strategic question that gay and lesbian advocates are trying to figure out right now is pushing for a way to get marriage and also the best way to get civil unions and domestic partnerships. Shoot for the moon, and you get a star or to on the way.

KAST: Brad Sears is a law professor at UCLA and executive director of the Williams Institute on Sexual Orientation Law and Public Policy. Thanks a lot.

Prof. SEARS: Thank you.

KAST: Next week we'll here from an opponent of gay marriage. To learn more about gay marriage amendments, votes, and court rulings across the country, check out an interactive map at npr.org.

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