The States that Could Legalize Gay Marriage in 2009

As a result of Prop. 8, California has, quite understandably, become the focal point of the gay marriage debate. But, while the legal drama unfolds in ...
by | November 20, 2008
 

As a result of Prop. 8, California has, quite understandably, become the focal point of the gay marriage debate. But, while the legal drama unfolds in California, the issue will be heating up in other places too.

Next year, as legislatures around the country return to work, several will discuss gay marriage. In two states and the District of Columbia, there's a good chance (perhaps a 50-50 chance or better) that gay marriage will pass. If one of these places does legalize gay marriage, it will be the first time a state (or a non-state in D.C.'s case) has taken that step without being ordered by a court to do so.

Vermont, the state that was at the center of the same-sex civil union debate a decade ago, seems likely to be at the center of the gay marriage debate this year.

Democrats have lopsided majorities in both houses of the legislature. They seem disposed to push for gay marriage. The legislature commissioned a study of the issue last year, which found that Vermonters with civil unions faced legal obstacles to recognition of their relationships. Many observers saw that report as setting the stage for gay marriage.

The question, though, is whether there are veto-proof majorities in favor of gay marriage in both houses. Vermont Governor Jim Douglas, a Republican, opposes gay marriage. To override a veto takes a two-thirds vote of both houses.

Recounts are still pending in both houses of the legislature. For now, Democrats have a 23-7 edge in the Vermont Senate. In the 150-member House, the membership appears to be 95 Democrats, 5 Progressive, 48 Republicans and 2 independents.

In others words, if the Democrats stick together and if the Progressives join with the Democrats in the House, they can override the governor's veto without any Republican votes. However, that would take some impressive party unity. Even if the votes for a veto override aren't there this year, it seems fairly likely that the state will approve gay marriage the next time a Democrat holds the governorship.

New Jersey approved civil unions in 2006, at the prodding of the state Supreme Court. As in Vermont, gay rights advocates have complained since then that the unions are separate and unequal institutions.

Most of New Jersey's top elected leaders appear to agree. Joseph Roberts, the Speaker of the Assembly, said earlier this year that gay marriage in the state "is simply a question of when, not if." Gov. Jon Corzine, a Democrat, has said he will sign a gay marriage bill if it reaches him.

The New Jersey legislature is actually still in session, so it's possible a vote could even occur this year. Legislative leaders would probably want to make sure they have the votes before bringing up the issue. Democrats have comfortable -- though not overwhelming -- advantages in both houses.

One possible complicating factor: Next year will be an election year in New Jersey, with Corzine and legislators up for reelection. That could make lawmakers squeamish about tackling such a hot-button issue, but it could also add urgency to the efforts of gay marriage supporters.

District of Columbia City Councilman David Catania says he has the votes for gay marriage, as DCist reports:

D.C. Council member David Catania (I-At-large) reassured local gay and lesbian business owners over the weekend that despite the success of initiatives like Prop 8 in California and other states, he's confident that a bill legalizing same-sex marriage in the District of Columbia will pass the D.C. Council next year.

...

In a brief interview with DCist, Catania reaffirmed that a same-sex marriage bill will be introduced to the Council in January, and that he is sure it will pass.

(Hat tip: Andrew Sullivan)

Mayor Adrian Fenty also supports gay marriage. The big obstacle in the past would have been Congress. However, with Democrats firmly in charge of both houses of Congress, there's probably a good chance they will allow the District to do what it pleases. Democrats, of course, often are more sympathetic to gay rights, and, perhaps just as importantly, they're usually more sympathetic to allowing the District to manage its own affairs.

Besides Vermont, New Jersey and Washington, D.C., several other states are less likely to act, but worth watching this year or in future years:

New York Governor David Paterson favors gay marriage, as do a majority of legislators in the overwhelmingly Democratic State Assembly. In the past, the opposition has come from the Senate, where Republicans have held a majority for decades.

Earlier this month, Democrats won a 32-30 majority in the Senate (perhaps even 33-29, if a recount goes their way). That result appeared to elevate Democrat Malcolm Smith, a gay marriage supporter, to the majority leader post. The situation, though, remains complicated.

Three Democrats are refusing to back Smith, at least for now. They could support a Republican for majority leader or look for a different Democrat. One of the sticking points, in fact, is gay marriage.

Even if Smith does end up in charge, I'm skeptical that he'll have the votes to legalize same-sex marriages this year. However, if Democrats still have complete control of the state's government after the 2010 elections, they'll be in charge of legislative redistricting. They'd draw a map to elect a wider Democratic majority in the Senate -- a majority that would be likely to favor gay marriage.

Maryland's Supreme Court last year upheld the state law prohibiting gay marriage, throwing the issue to the legislature. Lawmakers talked about the subject earlier this year, but ultimately the votes weren't there to change the law. Maryland didn't have legislative elections this year, so it would take the same cast of characters having a change of heart for there to be action in 2009.

Iowa isn't going to legalize gay marriage through the legislative process, even though Democrats control the state government (Gov. Chet Culver, among others, is opposed). However, the Iowa Supreme Court could rule to allow gay marriage. If that happens, it's not clear whether lawmakers would move to ban gay marriage in the state constitution.

New Hampshire approved a civil unions law last year and isn't likely to go further right away. Gov. John Lynch signed the unions bill, but opposes gay marriage.

Washington gradually has been expanding the scope of its domestic partnership law, but Gov. Christine Gregoire, a Democrat, says she doesn't favor gay marriage.

Josh Goodman
Josh Goodman  |  Former Staff Writer
mailbox@governing.com

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