Mass. landmark ruling pushed issue onto ballots

First of two parts

WASHINGTON -- Kansas House speaker pro tempore John Ballou, one of the state's most conservative lawmakers, suspected he was ''taking the last vote" of his political career when he opposed a constitutional ban on gay marriage.

He was right: On Election Day 2004, he and three other Republicans targeted by the religious right were booted out. On April 5, Ballou was still looking for a new job while Kansas voters marched to the polls to make their state the 14th in the past nine months to erect a constitutional firewall against the prospect of same-sex marriage being imported from Massachusetts.

Two weeks later and half a continent away, Connecticut's Republican governor signed a law permitting same-sex couples to enter into civil unions. And last week, both chambers of California's Democratic-controlled Legislature rejected constitutional bans on gay marriage; now a showdown looms as family-value groups launch a petition drive to get the measure on the ballot.

When Massachusetts, acting under a high-court ruling, became the first state in the union to grant marriage licenses to gay and lesbian couples as of May 2004, it unleashed a torrential political spillover. ''It was an earthquake," said Jonathan Rauch, a Brookings Institution writer and author of a recent book advocating same-sex unions. ''Massachusetts put every state in the union on notice that you could have gay marriage imposed by a court."

Not since Roe v. Wade gave a nationwide stamp of approval to abortion has a court decision so profoundly crystallized America's cultural divide. For proponents, the ruling was a landmark victory for civil rights and equality. For opponents, it was a startling assault on the traditional family and a symbol of judicial power run amok.

Politically, the ruling rocketed a still-divisive social issue into statehouses, ballot booths, and living rooms. Barring the Massachusetts ruling and a subsequent decision by San Francisco's mayor to grant marriage licenses to same-sex partners, many analysts say, gay unions would have remained ''a middle-burner" issue. ''There was that middle ground. The American public seems pretty moderate on this," said Christopher Malone, a political scientist at New York's Pace University. ''If the courts get too far ahead of public opinion, that's when you have that backlash effect."

Joe Solmonese, president of the Human Rights Campaign, defended the court's ruling as a ''historic moment," adding that ''this is the way social change happens." Rauch countered that the ruling prompted a mean-spirited outpouring of legal action, from the revocation of domestic partner benefits in Michigan to a measure passed last month by the Texas House of Representatives to take foster children away from gay parents.

''It's foolish to pretend that the Massachusetts court did not push to the limits and beyond," Rauch said. ''I don't think George Bush would have endorsed a constitutional ban if not for Massachusetts." (President Bush's endorsement came 20 days after the state's court reaffirmed its decision.)

But all sides agree that the Massachusetts action mobilized social conservatives, with dollars and volunteers pouring in -- and ballot initiative drives building membership lists. ''We joke that the people who contributed most to our cause were Margaret Marshall and Gavin Newsom," Richard Sprigg, senior director of policy studies at the conservative Family Research Council, said in a reference to the chief justice of the Massachusetts Supreme Judicial Court and the San Francisco mayor, respectively.

Most of the past year's action reflected fierce voter opposition to the idea of altering the definition of marriage. Last year, voters in 13 states amended their constitutions to ban gay marriage, and in nine cases, civil unions. The margins of support were eye-popping, especially in the South: 86 percent in Mississippi, 78 percent in Louisiana, and 75 percent in Arkansas and Kentucky.

But a few liberal states are moving in the other direction. Connecticut on April 20 followed Vermont in allowing civil unions, and Maryland on April 12 created a domestic partnership registry for gay and lesbian couples. Solmonese also noted that legislatures in 14 states defeated antigay constitutional amendments in 2004.,

''We have to put this in context," he said of his movement's defeats over the past year. ''There's always going to be that ebb and flow."

So far, no statewide votes have granted approval to gay marriage. Ceremonies conducted in Massachusetts resulted from the court ruling. The issue is also playing out in court in New York, where a judge's January ruling in favor of gay marriage is on appeal.

The split reaction to Massachusetts was apparent even among its neighbors: New Hampshire early last year adopted a law invalidating any marriage contracted outside the state that doesn't conform to its definition of marriage as the union of one man and one woman. By contrast, a host of bills welcoming same-sex unions are pending in Maine's statehouse.

When gay marriage foes face resistance to constitutional bans in legislatures, they are successfully taking their case directly to voters by collecting enough signatures to put initiatives on the ballot. That worked last year in three politically moderate states: Oregon, where 57 percent approved a constitutional ban, Michigan at 59 percent, and Ohio at 62 percent. Next year, voters in Alabama, South Dakota, Tennessee, and, most likely, Indiana and Virginia will consider ballot initiatives. Wisconsin may vote as early as this year, and initiative drives are underway in Florida and California, among others.

But polls consistently show broad acceptance for gay unions among young people, who could reshift the political balance as they age. Foes of gay unions ''wish to foreclose what they view as inevitable" by adopting constitutional bans, said Roger Lancaster, director of cultural studies at George Mason University in Fairfax County, Va.

What activists on the right fear most is a Supreme Court decision that attempts to sort out the different directions of states, ultimately by legalizing gay unions. ''You can't have a crazy quilt nation over something as fundamental as marriage," said Robert Knight, an official at Concerned Women for America. ''It will go to the Supreme Court."

On Thursday, a federal judge struck down Nebraska's constitutional ban, prompting renewed calls from conservatives to supersede the courts by amending the US Constitution. ''If it is not up to the states, Congress has the responsibility to weigh in in defense of traditional marriage rather than allow the courts to seize this decision-making authority from the people or their elected representatives," said US Senator Wayne Allard, Republican of Colorado.

Allard, author of the constitutional ban, which failed on a procedural vote last summer, is looking for the right moment to bring it up again. And this time, Allard said, he will be armed with witness testimony from ongoing hearings that ''build up a sizable record on the sociological impact in other countries" of allowing same-sex unions.

Allard's amendment is limited to gay marriage. ''If the states decide they want to go with civil unions, that's fine, but I don't think they ought to be redefining marriage," he said.

While political analysts say the issue hurts Democrats in culturally conservative states, gay marriage is already causing splits inside the Republican Party and could play out in a 2008 presidential primary campaign that pits the GOP's moderates such as former New York mayor Rudolph Giuliani and US Senator John McCain of Arizona, who oppose constitutional bans, against staunch conservatives.

In California, Republican Governor Arnold Schwarzenegger has said he would support same-sex marriage if his state's Supreme Court upheld it. ''There are some real differences within the Republican Party," said Christopher R. Barron, political director for the Log Cabin Republicans.

The fate of Ballou, the Kansas statehouse leader, highlights those internal GOP rifts. Ballou has a reputation as a ''conservative's conservative, as antiabortion, antitax, and antigun control as they come," as the local weekly Kansas City Pitch put it.

''I'm a redneck, ol' country boy," said the construction contractor-turned-lobbyist.

His decision to cast the vote that ended his political career, he said, was based on his readings of the US Constitution and the Federalist Papers.

''There's nothing in the Constitution that denies rights; everything grants rights," said Ballou. ''When you start going to the Constitution and denying rights because you don't like what someone stands for, who's next?"

About a dozen Kansas legislators, targeted by gay-marriage foes, were defeated or barely survived tight races. Four of those defeated were Republicans, including the son of former US senator Nancy Kassebaum.

The resistance to constitutional bans on gay marriage extends up the GOP food chain. At the national level, Vice President Dick Cheney, who steadfastly avoids public disagreements with the president, stunned the political world last summer when he spoke out against the proposal to amend the US Constitution to ban gay marriage, saying the issue should be left to the states. His daughter, political strategist Mary Cheney, is a lesbian.

While Bush has expressed support for that amendment, he has indicated he will not press for legislation because Senate supporters lack the votes. Privately, some White House officials say the administration, fearful of appearing intolerant, is uncomfortable making a high-profile push for a constitutional ban.

Gay-rights groups, eager to tap into that emotion, are going out of their way to humanize their cause, meeting with legislators in conservative states, passing out photos of their children, and describing their committed relationships. ''The more we can take something from the abstract and put a name and a face and a story to this, the more success we will have," said Solmonese.

Senate backers of the constitutional ban are concerned about image, too. Allard, a genial veterinarian who mostly works on economic and regulatory issues, said he was asked to draft the measure by other senators. ''I think they felt like I didn't carry a lot of baggage," he noted. ''I don't always jump out on a lot of family issues."

Allard started attending sessions with constitutional scholars, overcoming his concerns about impeding the rights of states, the traditional arbiters of marriage issues, and concluding that traditional marriage was ''the foundation of society" and should be protected.

''As much as any issue I can think of, it affects every American out there and they can relate to that," he said.

Tomorrow: Opposition wanes in Massachusetts