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By John Riley. staff writer; Andrew Metz of the Albany Bureau contributed to this story.

Newsday: Nassau and Suffolk Edition 
November 20, 2003 Thursday
NEWS, Pg. A08

In 1948, California's Supreme Court became the first in the nation to strike down a law prohibiting racially mixed marriages as unconstitutional. But it took 19 years of legal and political battles before that principle became the law of the land in a 1967 U.S. Supreme Court decision.

Yesterday, 24 hours after Massachusetts' highest court became the nation's first to grant same-sex couples a right to marry, that decision appeared poised to face a similarly lengthy struggle. Officials from Boston and Albany to the Vatican attacked its underpinnings, and legal experts predicted that its path to broad judicial acceptance would be long and difficult.

"It's going to be several decades before you get to the point where you have uniformity again in the country," said William Rubenstein, who runs a think tank on legal issues affecting gays at the University of California, Los Angeles, law school. "You're going to be in the patchwork-quilt stage for a long time."

In the ruling, a 4-3 majority of the Massachusetts Supreme Judicial Court held that the state's practice of granting marriage licenses only to heterosexual couples violated gays' right to liberty and equal protection of the law under the state constitution. It gave Massachusetts' legislature 180 days to act on the ruling.

Most legal experts say the decision left the state no way to avoid approving same-sex marriages short of a constitutional amendment outlawing them, which could not come before voters until 2006. But Republican Gov. Mitt Romney, a critic of the decision, suggested that a "civil union" law giving gay couples equal rights but not a marriage license could satisfy the court.

If he is right, the decision would be less important than most think it is. Vermont and California already have adopted such laws. Ann Dufresne, a spokesman for Massachusetts Senate President Robert Travaglini, said a civil union law might be a way to get clarification from the court, but added, "We think they want marriage."

The ruling continued to draw criticism from Catholics, religious conservatives and Republicans. At the Vatican, the Rev. Gino Concetti, a leading Catholic theologian, called it a "great wound to human dignity."

In Albany, State Senate Majority Leader Joseph Bruno (R-Brunswick) said he was not budging from his opposition to bills to legalize same-sex marriage bills that are pending in the legislature. "I don't believe people of the same sex need or ought to be legalized in marriage," Bruno said in a radio interview.

Even without legislative change, gay rights advocates hope same-sex marriages can get a foothold in New York and other states through the courts as couples married in Massachusetts seek recognition of their status outside its borders.

Those efforts, legal experts say, will rely on the U.S. Constitution's requirement that each state give "full faith and credit" to the "public acts" of other states. But the outcome, they warn, will be complicated both by precedents that say a state doesn't have to honor acts against its "public policy" and by the 1996 federal Defense of Marriage Act, which purports to exempt same-sex marriages from the full-faith-and-credit clause.

"There will be disuniformity, all kinds of interpretation," said Rubenstein.

A second set of challenges, experts say, will be brought by Massachusetts same-sex couples challenging other provisions of the 1996 federal law that put all federal marital benefits - from the tax code to Social Security - off limits to gay couples.

The U.S. Supreme Court, in its ruling this spring striking down state sodomy laws, made it clear that it was not taking a position on gay marriage. As a result, legal experts say, it is impossible to predict how the federal courts will rule on those challenges. But some say that over the long haul, the Massachusetts decision - like the California decision in 1948 - will cause judicial resistance to melt away amid changed public attitudes.

"People will realize the sky hasn't fallen," said Chai Feldblum, a civil rights specialist at Georgetown University law school. "Law can sometimes help achieve public acceptance."

Andrew Metz of the Albany Bureau contributed to this story.

GRAPHIC: Getty Images Photos - 1) Meredith Fenton during a rally Tuesday supporting gay marriage in San Francisco. 2) Belinda Ryan kisses her partner, Wendy Daw, of Fremont, Calif., during a rally Tuesday supporting gay marriages in San Francisco (Q).