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States Take Variety of Stances on Gay Marriage

SCOTT SIMON, host:

This is WEEKEND EDITION from NPR News. I'm Scott Simon.

The U.S. Senate has rejected a federal ban on same-sex marriage, but in the states, it's often a different story. Forty-four states have moved on their own to bar gay people from getting married. Twenty have passed constitutional amendments.

NPR's Kathleen Schalch reports that more state action may be on the horizon.

KATHLEEN SCHALCH reporting:

It happened again Tuesday. Alabama voters approved a constitutional amendment banning gay marriage.

(Soundbite of WCFT-TV broadcast)

Unidentified Woman: Carrying big time from the very first (unintelligible). fourteen percent of the vote counted, yes 79 percent, no 29 percent.

Unidentified Man: Does the word overwhelming come to mind...

SCHALCH: The results reported here on Birmingham TV station WCFT came as no surprise to Jack Tweedie of the National Conference of State Legislatures. He says all but six states now have laws or constitutional amendments defining marriage as between one man and one woman. These days, he says, many states want both.

Mr. JACK TWEEDIE (National Conference of State Legislatures): There's a lot of interest in this second level of protection. I think that's the main kind of activity now.

SCHALCH: Victoria Cobb, executive director of the Family Foundation in Virginia says, there's a good reason.

Ms. VICTORIA COBB (Executive Director, Family Foundation): We have seen around the country and even as close by as our neighboring state, Maryland, where one judge took a 33-year-old ban on same-sex marriage and claims that it was unconstitutional.

SCHALCH: Gay marriage advocates have also brought court challenges in Washington state, California, Connecticut, Iowa, New Jersey and New York.

Mr. KELLY SHACKELFORD (Chief Counsel, Liberty Legal Institute): A statute does nothing to stop an activist judge. The only way to an activist judge is to go above their head and actually, specifically deal with it in the constitution, which will then tie their hands.

SCHALCH: Kelly Shackelford is chief counsel of the Liberty Legal Institute, which spearheaded Texas's constitutional amendment in 2005. Eleven other states passed constitutional amendments in 2004. Virginia, South Carolina, South Dakota, Tennessee and Wisconsin may join the list this November.

Shackelford said this will thwart gay rights advocates' hopes of using liberal states as a beachhead to spread gay marriage around the country.

Mr. SHACKELFORD: If they get marriage in one state, the idea was people can go get married there then go to the other states and force it on the entire country without anybody even getting to vote on it.

SCHALCH: Gay marriage proponent Evan Wolfson says these amendments will be harmful and tough to undo. But he puts a brave face on the situation.

Mr. EVAN WOLFSON (Freedom to Marry): Well, America is in an important civil rights conversation now. And as is typical in American civil rights history, we see a patchwork. Some states move toward equality faster while others resist and even regress.

SCHALCH: Wolfson, executive director of Freedom to Marry, sees a few bright spots. He points to California. In September, its legislature passed, and Governor Schwarzenegger vetoed, a bill that would have made California the second state after Massachusetts to allow gay marriage.

Colorado voters may be asked to approve a constitutional gay marriage ban this November. But another measure will appear on the ballot as well, says National Conference of State Legislatures' Jack Tweety.

Mr. TWEETY: It allows same-sex couples to have many of the domestic legal rights of married couples: coverage in health insurance, visiting in the hospital, the privilege of getting health information.

SCHALCH: Evan Wolfson says over the long run, examples like this will change people's minds.

Mr. WOLFSON: And if some states give people the living example that families are helped and no one is hurt when marriage discrimination ends, the American people are going to rise to fairness, and even in these states where the measures have been pushed through, people are going to realize that they did the wrong thing.

SCHALCH: But in the near term, the rift between the states that want to bolster gay couples' rights and states that want to restrict them is likely to grow.

Kathleen Schalch, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Kathy Schalch