November 30, 2004|By Gail Gibson | Gail Gibson,SUN NATIONAL STAFF
WASHINGTON -- The U.S. Supreme Court refused for a second time yesterday to get pulled into the politically charged fight over gay marriage in Massachusetts, rejecting an appeal from some state lawmakers and national conservative groups that want to see a year-old state court ruling that legalized gay unions overturned.
The justices did not comment in declining to hear the appeal, just as the court remained silent in May when it refused to stop county clerks in Massachusetts from issuing the first marriage licenses to same-sex couples. Its refusal means the state court's decision will stand, and gay marriage remains legal in Massachusetts.
But despite the high court's apparent willingness to let the issue play out at the state level for now, legal observers said yesterday that it is all but certain to reach the court again. They point to a slew of lawsuits and battles joined in state legislatures across the country.
"I think, eventually, they will be asked and they will have to hear one of these cases -- there are just too many out there," said Erik W. Stanley, chief counsel for the Orlando, Fla.-based Liberty Council, which brought the challenge to the Massachusetts ruling. "This is a national problem, and it needs a national solution."
While more than 3,000 gay couples have married in Massachusetts this year, the issue is far from settled and played a prominent role in the recent presidential campaign.
Lawsuits in other states have challenged the validity of those unions as well as laws against gay marriage. Voters in 11 states this month approved bans on gay marriage, and voters in Massachusetts could do the same next year.
President Bush has pledged that he will push Congress to enact a constitutional amendment against gay marriage during his second term.
"The president remains firmly committed to moving forward on a constitutional amendment that would allow the voice of the people to be heard," White House spokesman Scott McClellan said yesterday when asked about the Supreme Court's decision. "And that's different from allowing the activist judges to redefine this without the people's voice being heard."
Yesterday's decision ended the legal challenges to last November's 4-3 decision by the state Supreme Court in Massachusetts, which gave gay couples the right to marry. In their lawsuit, critics of that decision said it violated the rarely invoked "guarantee clause" of the U.S. Constitution, which promises each state a republican form of government.
Foes said the state court had overstepped its bounds with the ruling and appropriated for itself powers that should be left to the state legislature. But the suit failed before the 1st U.S. Circuit Court of Appeals in Boston, which allowed the state court decision to stand.
"That this disagreement is important is obvious," the appeals court wrote in a preliminary ruling. "But ... it is not obvious why its resolution one way rather than another threatens a republican form of government."
Stanley, of the Liberty Council, said he viewed the Supreme Court's decision not to hear the case as more a reflection on its unwillingness to examine those questions than a reluctance to consider gay marriage.
He said the group will continue the fight in other ways. Already, the conservative group -- which also represents municipalities that want to display the Ten Commandments in a case pending before the court -- is lobbying in about two dozen states in favor of passing gay marriage bans.
An attorney who represented gay couples in Massachusetts who wanted to marry said invoking the guarantee of a republican government was "really a stretch" and never had a strong chance for review by the Supreme Court. That could change, said attorney Michele M. Granda with the Gay & Lesbian Advocates and Defenders in Boston, but for now she welcomed the decision to let the Massachusetts ruling stand.
"Ultimately, this may get to the Supreme Court in a different phase, but that will be years from now," Granda said.
Among the cases still on the horizon are lawsuits brought against four states -- California, New Jersey, New York and Washington -- by the national gay-rights group Lambda Legal on behalf of same-sex couples who want to marry.
In Maryland, nine gay couples sued the state in July after court clerks in Baltimore City and several counties refused to issue marriage licenses to them. The lawsuit, brought by the American Civil Liberties Union and Equality of Maryland, a gay advocacy group, contends that the state's ban on gay marriage is unconstitutional.
David Buckel, Lambda's marriage project director, said that yesterday's decision at the Supreme Court was an encouraging sign.
"This was a weak and misguided legal effort from right-wing antigay groups that never really stood much chance of being heard at the Supreme Court," Buckel said. "The bottom line is that nobody is being harmed by the Massachusetts state law treating all couples equally. For more than six months, same-sex couples in Massachusetts have been getting married, and nobody else's marriage has been affected."
