Gay Marriage Is Not Over Finish Line Just Yet

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These are exhilarating times for supporters of gay marriage.

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By Mario Tama, Getty Images

Proud: Valerie Coleman, right, and Joan Katter, a couple for 22 years, celebrate New York's new law.

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By Mario Tama, Getty Images

Proud: Valerie Coleman, right, and Joan Katter, a couple for 22 years, celebrate New York's new law.

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New York's vote last week to permit same-sex marriage brings the number of states permitting the practice to six, plus Washington, D.C. California seems likely to join the list; two consecutive governors have declined even to defend the state against a legal challenge to its 2008 voter referendum that banned gay marriage.

OPPOSING VIEW: Gay marriage is not an increase in liberty

More broadly, poll after poll shows support for same-sex marriage advancing steadily, particularly among younger people. Gallup says 53% of the public now supports gay marriage, vs. 45% opposed — a tidal shift in attitudes. Just 15 years ago, the idea was so far out of the mainstream that the Defense of Marriage Act, barring federal recognition of gay marriages, passed Congress by overwhelming majorities (85-14 in the Senate and 342-67 in the House). Now President Obama, who says his views on gay marriage are "evolving," calls the 1986 act unconstitutional and has ordered the Justice Department to stop enforcing it.

The trend seems undeniable, rooted in the American belief — and Constitutional guarantee — that everyone deserves equal treatment under the law.

All the same, the proponents would be wise not to uncork the champagne just yet.

For all the echoes of the civil rights movement, the political outcome could just as easily end up looking like the nation's endlessly divisive fight over abortion rights, with its religious intensity and vast regional differences.

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Support for gay marriage is anything but uniform. Thirty states have written bans into their constitutions. Many of those bans are recent, and so far not a single state has passed a referendum legalizing same-sex marriage. Thirty-one have done the opposite.

While more states seem likely to follow New York, it's hard even to imagine a political sweep through the Bible Belt, where separating the two definitions of marriage — one religious, the other civil — is most difficult.

Even in New York, lawmakers had to go out of their way to make the distinction. They attained a majority to pass the law only by including a provision assuring that religious organizations and their affiliates will not be penalized for refusing to perform same-sex marriages.

On one level, that's unnecessary. The First Amendment guarantees that the government cannot force members of any religion to act against their beliefs. The chances that a church will be forced to perform a gay marriage are zero. But on practical level, the New York provision helped reassure people who don't easily make the fundamental constitutional distinction: Every religion gets to write its own marriage rules. None has a right to decide the rules for others.

So far, only the gay-rights side has sought solutions that attempt to address both constitutional guarantees, with provisions such as New York's or the compromise offered by civil unions, and therein lies its greatest hope.

If supporters of allowing only traditional marriage can't find some way to do the same, they'll ultimately have to rest their hopes on a Supreme Court that is constitutionally mandated to defend both principles and that has decades of precedent — some quite recent — suggesting it will fulfill this obligation.

That is the real message coming from New York and one that should stimulate some creative thinking on the other side.

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