Same sex redux: how did same sex marriage re-emerge as one of the most vexing social issues facing lawmakers?

• Author: Nelson, Christine

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When President Bill Clinton signed the Defense of Marriage Act in 1996, defining marriage as between one man and one woman, it seemed inconceivable that same sex couples would ever be allowed to marry.

In the 12 years following the federal act, more than 40 state legislatures enacted similar statutes. Fearing judicial intervention, 30 of the states went a step further and placed "one man, one woman" marriage laws in their state constitutions. In addition, no constitutional amendment placed on a ballot and put before voters has ever failed.

So, how is it that same sex marriage is quickly becoming one of the most challenging states' rights issues of our time?

The tug of war between judicial decisions, which in some cases have forced states to legalize same sex marriage, and public opinion, which has routinely disapproved of same sex marriage, has left legislators squarely in the middle of a divisive political hot potato.

"I've been spending a lot of time on this issue for 20 years," says New York Senator Ruben Diaz Sr., "and of course, it will continue."

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PLENTY OF ACTION

In the last seven years, both the judiciary and state legislatures have played key roles in the fight to recognize same sex marriage. Massachusetts and Connecticut began performing same sex marriages as the result of judicial decisions in 2003 and 2008, respectively. And just last year, the Iowa Supreme Court upheld a lower court decision that ruled denying same sex couples the right to marry was a violation of the equal protection clause in the state constitution.

In addition to Iowa, three other states--Vermont, Maine and New Hampshire--enacted same sex marriage in 2009 as a result of legislative action without a judicial mandate.

The Vermont legislature was the first of the three to pass same sex marriage, overriding the veto of Governor Jim Douglas. The District of Columbia Council passed same sex marriage and the measure took effect in March.

And lawmakers in New York and New Jersey recently passed legislation in one chamber to allow it, but failed to do so in the other.

As a result of these developments, an important secondary question has emerged: Are states without same sex marriage obligated to recognize same sex marriages performed in other states?

In New York, Rhode Island and Maryland, the answer is yes. New York Governor David Patterson issued an executive order in 2008 directing all state agencies to recognize same sex marriages from other states. Attorneys general in Maryland and Rhode Island have issued opinions on the matter, drawing parallels between the recognition of common law marriage, which can only be established in a handful of states, but is recognized as a legal marriage in all states. And, just prior to legalizing same sex marriage, the...