WETZSTEIN: Gay marriage issue still simmers

With Election Day here, it’s time to assess the status of gay marriage issues.

It’s been rare in the past 12 years not to have a question on a state ballot to protect traditional marriage, but there’s none this year.

That doesn’t mean that the gay marriage issue is dead. Not at all.

To recap, the national frenzy started in 1998, when supporters of traditional marriage collected signatures and got constitutional amendments on the ballots in Hawaii and Alaska to trump court decisions in favor of gay marriage. Both measures succeeded, and similar groups used the same gambit in Nebraska and Nevada in 2000.

After a lull in 2002, the number of states passing these state marriage amendments, which defined marriage as only the union of one man and one woman, grew by 13 in 2004, two in 2005, eight in 2006 and three in 2008, for a total of 30.

Last year, Maine voters duked it out over a law signed by the governor that allowed gay marriage. Voters threw it out, 53 percent to 47 percent, making it the 31st time voters rejected gay marriage.

This year’s ballot is not entirely devoid of any gay marriage issue, however. In Iowa, three state Supreme Court judges are up for “retention” and a host of traditional-values groups are asking voters to “just say ’no’” to them.

The reason is that the three judges — Chief Justice Marsha K. Ternus and Justices David L. Baker and Michael J. Streit — joined their four colleagues last year in declaring gay marriage constitutional in Iowa, based on equal protection rights.

In recent speeches, two of the justices have said their ruling was a proper defense of the Constitution, even if it was unpopular.

But Family Research Council President Tony Perkins, who has joined Rep. Steve King, Iowa Republican, in calling for the judges’ ouster, said the trio rewrote state marriage laws without respect for lawmakers and the people. “If the Iowa Supreme Court will do this to marriage, every one of our freedoms, including gun rights and private property, is in danger of being usurped by activist judges who are unelected officials,” Mr. Perkins said.

What to expect Tuesday in Iowa? Polls have been wobbly, showing voters retaining the judges, then throwing them out, and then being too split to tell.

Lastly, if Democrats win certain gubernatorial races, gay marriage, which is legal in Massachusetts, Connecticut, Iowa, New Hampshire, Vermont and Washington, D.C., could expand into as many as three more states.

• In New York, Democrat Andrew Cuomo is polling far ahead of Republican opponent Carl Paladino, and he is a vocal supporter of gay rights. “I want to be the governor who signs the law that makes [marriage] equality a reality in the state of New York,” Mr. Cuomo told the Empire State Pride Agenda dinner a few weeks ago.

Years ago, New York gay couples filed several lawsuits seeking to marry. Their efforts came to naught in 2006, when the New York State Court of Appeals upheld state marriage laws as rational and in the state’s interest.

Since then, lawmakers have frequently come close to passing a gay marriage law; if Democrats hold both chambers, it’s likely Mr Cuomo will get his wish. But Republicans are fighting to regain control of the state Senate, and if they succeed, it probably will delay such a law.

• In Minnesota, Democrat Mark Dayton holds a lead over Republican Tom Emmer. Mr. Dayton supports gay marriage, while Mr. Emmer does not. Minnesota is one of 20 states without a constitutional amendment defining marriage, so the issue could be very much in play in a Dayton administration.

• In California, a major court case over voter-passed Proposition 8, which disallows gay marriage, is in federal appeals court, presumably on its way to the Supreme Court. Democratic gubernatorial candidate Jerry Brown has refused to defend Prop 8 as state attorney general, so clearly he will help kill it as governor. In contrast, Republican candidate Meg Whitman supports Prop 8, but polls show her trailing Mr. Brown by several percentage points.

• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.