WASHINGTON — Now that the U.S. military's "don't ask, don't tell" policy is history, gay rights advocates and their supporters in Congress and the Obama administration are shifting their focus to repealing state and federal laws that define marriage as between one man and one woman.
While six states and the District of Columbia allow same-sex marriage and several other states provide varying degrees of legal recognition to same-sex couples, including civil unions and domestic partnerships, the 1996 Defense of Marriage Act prevents the federal government from recognizing legal same-sex marriages from any state.
Rep. David Price, D-N.C., a leading co-sponsor of repeal legislation, said the law "will look more and more anachronistic as more states adopt gay marriage."
President Barack Obama, while stopping short of a full endorsement of same-sex marriage, told one of the nation's leading gay rights organizations Saturday that he would work to repeal the law. Earlier this year, his Justice Department said it would stop defending it in court.
"I believe the law runs counter to the Constitution, and it's time for it to end once and for all," Obama said at the Human Rights Campaign's annual dinner Saturday in Washington. "It should join 'don't ask, don't tell' in the history books."
The U.S. Census Bureau announced last week that it had counted 646,000 same-sex couples across the country in 2010. Though one in five of these couples identified themselves as married, many live in states that offer limited or no legal recognition of their partnerships. That complicates many routine matters for gay couples, from child custody to inheritance to immigration.
"The vast majority of gay people identifying themselves as married actually are married or are in a legal relationship," said Evan Wolfson, the founder of Freedom to Marry, a New York-based gay rights organization. "They're doing the best they can under the imperfect law to get legal respect for their committed relationships."
Federal law permits states to define marriage any way they choose, and 37 of the 50 states have defined marriage as between one man and one woman.
Same-sex marriage opponents would like to keep it that way.
In 2008, they successfully overturned court-ordered same-sex marriage in California by taking the issue to voters. On the same night that Californians helped elect the nation's first black president, Proposition 8 passed with 52 percent of the vote. Last year, a federal district judge struck down the voter-approved law in an ongoing case that likely will end up before the U.S. Supreme Court.
"We're supposed to have a representative form of government where voters ultimately make these decisions, not one where judges make social judgment calls," said Andy Pugno, the general counsel for the Proposition 8 Defense Fund and Protect Marriage Coalition, who said he thinks the Supreme Court will uphold the law.
Same-sex marriage opponents point out that they've won in every state where the issue has been put on the ballot. But polls show that could be changing. In North Carolina, where voters will consider a constitutional amendment banning same-sex marriage next spring, an Elon University poll shows that 56 percent oppose the ban, while 39 percent support it.
Leaders in Washington are changing their minds, too. Last month, Rep. Ileana Ros-Lehtinen of Florida became the first Republican to back the repeal of the federal Defense of Marriage Act. Though she voted for the law in 1996, a decade later she declined to support a federal constitutional amendment to ban same-sex marriage.
Rep. Tammy Baldwin, D-Wis., an openly gay member of Congress who's running for the U.S. Senate, said while she hoped that Ros-Lehtinen's support would encourage other Republicans to back the repeal of an "unjust" law, last year's midterm elections dealt a "significant setback" to that effort.
The repeal bill has 125 co-sponsors in the Republican-majority House of Representatives and 29 in the Democratic-led Senate.
"It's a steep hill to climb. That's not to say we won't climb it," Price said. "Repeal is going to be a tough political fight."
Baldwin said her main focus wasn't on gay issues, but the economy. "This is a tough time for our country," she said. "My constituents don't care that I'm gay."
In the meantime, gay and lesbian couples still face a patchwork of state laws.
Roughly 50,000 same-sex couples have gotten married in the six states that allow it: New York, Vermont, New Hampshire, Connecticut, Massachusetts and Iowa, plus the District of Columbia. Other states give same-sex couples the benefits of marriage without the name, but many couples won't be satisfied until they can get married.
"Right now it's basically a second-class citizenship," said Washington state Rep. Laurie Jinkins, a Democrat and one of six openly gay members in the Washington legislature who are crafting a strategy for the passage of a marriage law, possibly as early as next spring. Washington state's voters approved a domestic partnership law in 2009.
Federal and state marriage laws pose special challenges for same-sex couples with children. According to the census bureau's American Community Survey, 115,000 such couples are raising children.
In Lexington, Ky., Jessica Bollinger and her partner of 17 years, Cathy Wieschhoff, have an 11-year-old adopted son, Lucas. Bollinger is the adoptive parent. Bollinger said that if they lived in a state that recognized same-sex marriage, there would be more security for her son.
Bollinger said she and her partner have indicated in their will and spoken with family members to assure that if she died, her partner could take custody of their son and be the legal parent.
But the law wouldn't automatically grant Wieschhoff custody, something that married opposite-sex couples would take for granted.
"She is as much his parent as I am," Bollinger said.
For other couples, the lack of marriage rights reinforces longstanding social stigmas against gay people.
Beverly Fletcher of Fort Worth, Texas, who married her partner of 20 years in Connecticut, said her family has struggled at times against barriers and "institutional challenges" in a state that doesn't recognize their marriage.
When her now 12-year-old daughter was in elementary school, another mother protested to the school that Fletcher should not be allowed to accompany the children on field trips, Fletcher said. The mother wanted her banned from the classroom, though the school supported Fletcher.
"We have spent our entire adult lives together, my wife and I," Fletcher said. "It is so discouraging to be married and to not be honored as being married here in my own community. When we go other places and visit other communities, they really are so surprised at what we still deal with here."
But others said it mattered less how the government defined their families.
Paul Wolford and Howard Freedland, both 48, of Davis, Calif., were married in June 2008 during the brief window before Proposition 8 when gay couples in California could legally do so.
Wolford, a preschool teacher, and Freedland, an attorney, are parents to an 8-year-old daughter and a 6-year-old son.
Wolford believes Americans are generally more accepting of gay couples — and harbor fewer stereotypes about them. While Wolford isn't happy that his marriage wouldn't have been permitted after Proposition 8 passed a few months later, he's decided not to vociferously campaign to repeal the measure.
"My greatest activism is just living a normal life," he said.
(Valarie Honeycutt Spears of the Lexington (Ky.) Herald-Leader, Alex Branch of the Fort Worth Star-Telegram, Jordan Schrader of The News Tribune in Tacoma, Wash., and Phillip Reese of The Sacramento Bee contributed.)
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