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Same-sex marriage creates uncertainties decade after Massachusetts implementation

Published: Saturday, May 17 2014 4:00 a.m. MDT

The Massachusetts decision "started the same sort of lawlessness that we've seen with judges (elsewhere) saying they have the right to define marriage for a state, subverting the democratic process."

Brown said the "redefinition of marriage has had consequences" beyond what proponents concluded. In Massachusetts, the state has "deconstructed gender" by referring to mothers and fathers solely by the word "parent" in official proceedings, he claimed, and in schools, "kids are now taught their parents are bigots if they support the traditional definition of marriage."

The traditional marriage advocate said when the Massachusetts Senate refused to consider a voter-signed petition calling for a constitutional amendment defining marriage as between a man and a woman, it started a trend of elected officials in other states refusing to defend marriage laws and amendments passed by voters and/or legislatures.

In Oregon, state Attorney General Ellen Rosenbaum declared three months ago there was "no rational basis" for the 2004 voter-approved constitutional amendment defining marriage as being between one man and one woman, according to the Oregonian newspaper. On Wednesday, U.S. District Judge Michael McShane ruled Brown's group "had no (legal) standing" to defend the measure in that state.

Rippling consequences

The Oregon case is among dozens now wending their way through the federal and state courts. Out of the 10 federal cases on appeal, nine are rulings favoring same-sex marriage, most recently in Idaho, according to Freedom to Marry's database.

And if, as supporters hope and opponents fear, the Supreme Court of the United States weighs in and sets a national standard approving same-sex marriage, Franck and others fear the rippling consequences.

"Just look at what happened to Catholic Charities, which ceased adoption services in Massachusetts in the aftermath" of the 2003 ruling, he said. The Roman Catholic social-service agency shut down after the state required the agency to place children with same-sex married couples.

And other religiously linked institutions with admission, employment, housing or other policies prohibiting same-sex couples may face challenges, said attorney Nicholas Miller, director of the International Religious Liberty Institute at Andrews University in Berrien Springs, Michigan, which is owned by the Seventh-day Adventist Church.

"States may not have as strong a religious rights lobby as there is at the federal level," Miller said. Despite the fact that the Seventh-day Adventist Church does not endorse same-sex marriage, Miller said Adventist- and Catholic-owned hospitals in California are being required to provide employee benefits to same-sex couples.

Greg Scott, a spokesman for the Alliance Defending Freedom, which is litigating in several states to support traditional marriage, said the group hopes the U.S. Supreme Court will continue its view that marriage should be defined by the states, as it expressed in its 2013 ruling, U.S. vs. Windsor, which struck down the prohibition against same-sex marriage in federal law.

"We hope the Supreme Court stays consistent," Scott said. "Marriage is worth fighting for and there are a lot of people that do believe that. Perhaps a wrong decision at the Supreme Court will inspire millions of Americans to rebuild a culture of strong marriages and understand again what marriage is about."

Picking up the pieces

Meantime, legislators, attorneys and judges may be left to pick through the pieces of court rulings and state statutes to determine who must — and who may not — accommodate same-sex marriage.

Lawmakers could pass exemptions protecting a quasi-religious social organization such as the Catholic-based Knights of Columbus from having to rent its banquet facilities for a same-sex marriage reception, said Robin Fretwell Wilson, a law professor at the University of Illinois and an advocate for religious exemptions to same-sex marriage laws.

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