Gay-marriage foes scrambling after court setbacks

“It is ultimately the Supreme Court that is going to bring marriage equality to all 50 states.”

Fred Sainz of the Human Rights Campaign, a national gay-rights group

Opponents of same-sex marriage are scrambling to find effective responses, in Congress and state legislatures, to a rash of court rulings that would force some of America’s most conservative states to accept gay nuptials.

Some gay-marriage foes are backing a bill recently introduced in both chambers of Congress that would leave states fully in charge of their marriage policies, though the measure stands little chance of passage.

In the states, they are endorsing a multitude of bills — some intended to protect gay-marriage bans, others to assert a right, based on religious freedom, to have nothing to do with gay marriages should those bans be struck down.

In Utah, Oklahoma, Kentucky and Virginia, federal judges have voided part or all of the bans on same-sex marriage that voters approved between 2004 and 2006.

Each of the rulings has been stayed pending appeals, and a final nationwide resolution may be a few years away in the U.S. Supreme Court.

The trend is unsettling to the activists who oppose gay marriage, and some have called for extraordinary measures in response.

Alabama Chief Justice Roy Moore, known for fighting to display the Ten Commandments in a judicial building, has written to all 50 governors urging them to support a federal constitutional amendment defining marriage as between only a man and a woman.

In Missouri, where voters approved a gay-marriage ban in 2004, eight Republican House members filed articles of impeachment against Democratic Gov. Jay Nixon after he ordered his administration to accept joint tax returns from same-sex couples who were legally married in other states. The Republican House leader has yet to schedule the matter for public hearings, but some GOP sponsors insist they are serious.

“The people put it in the constitution that marriage is between one man and one woman — the issue is the governor has absolutely ignored the constitution and the people’s will,” said Rep. Ron Schieber, a Republican from Kansas City.

The demand for religious exemptions, meanwhile, is widespread. Gay marriage opponents have fought for strong exemptions in every state where lawmakers have already decided the issue. In New York, for example, gay marriage was recognized only after Gov. Andrew Cuomo and the state’s top two legislators struck an 11th-hour compromise on religious accommodations.

However, the resulting exemptions have generally been limited in scope — and haven’t come anywhere near to what gay marriage opponents sought. In Massachusetts and Iowa, where same-sex marriage won recognition through the courts, there are no religious exemptions related to the rulings.

In light of this track record, opponents have been proposing pre-emptive bills with broad accommodations for religious objectors. Most of the bills aim to protect individuals or businesses who, for religious reasons, don’t want to serve same-sex couples.

Bills in Ohio, Mississippi, Arizona, Idaho and Oklahoma would allow a person or company to assert a religious freedom defense against a lawsuit from another private party. For example, a baker who refused to make a wedding cake for a gay couple could defend his decision as a legally protected religious right.

In some states, they have suffered setbacks.

The Kansas House passed a measure last week providing a faith-based legal shield for people who refuse to provide services to gays and lesbians. It details which services would be exempted — ranging from bakeries to adoption agencies to government clerks — and allows faith-based refusal of services to gay couples in any domestic partnership.

But the top Republican in the state Senate put a quick stop to the bill’s momentum, declaring that a majority of GOP lawmakers in that chamber don’t support it.

“A strong majority of my members support laws that define traditional marriage,” said Senate President Susan Wagle. “However, my members also don’t condone discrimination.”

In South Dakota, a Republican-led Senate committee narrowly defeated a similar bill that would have barred lawsuits or criminal charges against clergy who refuse to perform same-sex weddings. Critics of the bill said it was unnecessary because the U.S. Constitution already guarantees religious freedom.

One of the sponsors of that measure was Rep. Steve Hickey, pastor of a Sioux Falls church that opposes gay marriage.

“I’m saying keep the state out of my church,” Hickey said at a committee hearing. “I only promote and perform traditional marriages. … It’s not because there is any bigotry. It’s because I deeply care about people.”

In Indiana, the battle over gay marriage has revealed rifts among Republicans. GOP Gov. Mike Pence urged lawmakers to refer a constitutional ban on gay marriage to the November ballot, but the measure suffered a significant setback last week that could delay a vote until 2016.

Proposed constitutional amendments must be approved twice by the Indiana Legislature — unchanged and in consecutive biennial sessions — before making the ballot. The proposed gay-marriage ban cleared the Republican-led Legislature two years ago but was changed recently to remove a ban on civil unions, thus preventing it from going to the 2014 ballot.

Peter Sprigg, a senior fellow with the conservative Family Research Council, expressed disappointment with the Indiana development.

“That was our best hope for a victory at the ballot box this year,” he said.

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Overall, Sprigg said he remained hopeful that the U.S. Supreme Court — if it takes up appeals of any of the recent federal court cases — would not rush to legalize same-sex marriage nationwide.

Last June, the high court did order the federal government to recognize valid same-sex marriages, which are allowed in 17 states and the District of Columbia. But the court declined to go further and require all states to allow them.

John Eastman, an opponent of same-sex marriage who chairs the National Organization for Marriage, said he and his allies were battling to challenge a growing perception that nationwide gay marriage is inevitable.

In particular, he derided Republican political consultants who were advising the party — which officially opposes same-sex marriage — to tone down its rhetoric on the issue.

“The consultant class of the GOP has been stupid,” Eastman said.

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Eastman’s organization has praised a bill recently introduced in Congress by conservative Republicans titled the State Marriage Defense Act. It would require the federal government to respect state determinations of the marital status of their residents when applying federal law.

However, the bill is considered to have no chance of passage in the Democratic-led Senate, and its prospects in the GOP-controlled House are uncertain.

“The bill is so tortured by hypocrisy that it falls of its own weight,” said Fred Sainz of the Human Rights Campaign, a national gay-rights group. He noted that only a few years ago, many social conservatives sought a federal amendment that would ban gay marriage nationwide, overriding the wishes of states that had legalized it.

But opponents of same-sex marriage insist on the right to take their cause to the statehouses.

“We support the right of people in the country to disagree on the policy of marriage,” said Jim Campbell of the conservative legal group Alliance Defending Freedom. “We as a people, state by state, need to decide what the future of marriage is going to be.”