The Growing State-by-State Fight over Marriage Equality

The Atlantic Wire
The Growing State-by-State Fight over Marriage Equality
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The Growing State-by-State Fight over Marriage Equality

New Jersey's effective prohibition on gay marriages is facing a court challenge from an advocacy group in the state. The group, already suing the state, submitted a court filing on Wednesday in the wake of the Supreme Court's decision on the Defense of Marriage Act. They join Michiganranked numbers 1 and 2 on our list of states that might approve gay marriage after DOMA — and a handful of other states rapidly mounting challenges to existing state marriage laws. 

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The Supreme Court stopped short of granting gay marriage rights, essentially leaving the definition of marriage to the states. But the court upped the stakes in the state-by-state fight when they effectively provided federal benefits to LGBT couples who are already, or will become, legally married. In New Jersey, Lambda Legal is in the middle of a lawsuit challenging the state, which technically has no law on the books either way on gay marriage. The state does have provisions for legal same-sex unions, but the equality of those to a marriage in the state is a huge point of contention. The DOMA decision is cited as the specific reason the group will now ask for a judge to rule in court on the state's position on gay marriage, with a hearing tentatively set for August 15th. Meanwhile, New Jersey governor Chris Christie, who has said that he believes marriage is between a man and a woman, tentatively supports a November referendum on the issue, even as Democrats in the state's legislature attempt to overturn his a veto on a same-sex marriage bill.

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New Jersey and Michigan aren't the only states seeing new or renewed challenges to get same-sex marriage rights after SCOTUS's ruling. In Florida, an advocacy group is looking for plaintiffs for a possible court challenge there. There are at least two notable lawsuits filed in New Mexico, where state law neither grants nor prohibits gay marriage: one seeking a court order for a county clerk to issue a marriage license to a gay couple, and another seeking to test whether the state will recognize gay marriages from other states. There's an existing challenge to the Utah amendment banning recognition of same-sex marriages, and a new lawsuit in Arkansas on the issue, where there's also a constitutional ban on gay marriage. There's also a suit filed in Texas challenging that state's constitutional ban after DOMA, but that suit almost certainly doesn't make a strong legal case — the plaintiff, a retired nuclear engineer, is representing himself, apparently without help from national or state advocacy groups. According to the ACLU, there are at least eight notable challenges to state marriage equality bans pending in the courts. Those probably include two cases, in Nevada and Hawaii, that could end up tempting SCOTUS in a future term to make a decision on constitutional bans against gay marriage — currently in place in 29 states. 

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