Same-sex marriage in the United States

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Same-sex marriage is legally recognized in some jurisdictions within the United States and by the federal government. Seventeen states[a] and the District of Columbia have legalized same-sex marriage. Eight Native American tribal jurisdictions[b] issue marriage licenses for same-sex couples. Oregon recognizes same-sex marriages performed in other jurisdictions. Limited recognition has been granted to out-of-state same-sex marriages in Ohio,[2] Missouri,[3] and Colorado.[4] Utah recognizes for 2013 income tax filings all pre-2014 same-sex marriages, but offers no further recognition.[5]

Recently, U.S. district courts in Utah,[6] Oklahoma,[7] Kentucky,[8] Virginia,[9] Texas,[10] Michigan[11] and Ohio[12] have declared that state constitutional amendments banning same-sex marriage violate the Constitution of the United States: The Kentucky and Ohio decisions order state recognition of out-of-state same-sex marriages; the greater balance of the courts going further, mandating same-sex marriage to be performed in-state. All of the rulings have been stayed from enforcement pending appeals, or in the case of Ohio, a hearing. In Utah, more than 1,300 marriage licenses were issued to same-sex couples before the U.S. Supreme Court stayed the court's order on January 6, 2014.[13] On March 14, 2014, a federal district court in Tennessee issued a preliminary injunction against the state, ordering it to recognize the out-of-state same-sex marriages of the plaintiff couples while their case is pending.[14] A U.S. district court issued an injunction requiring Indiana to recognize the same-sex marriage of one same-sex couple. It will last for 28 days from its initial ruling date April 10, 2014.[15]

While many jurisdictions have legalized same-sex civil marriage through court rulings, legislative action, and popular vote, four states prohibit same-sex civil marriage by statute and 29 prohibit it in their constitutions.[16] The Defense of Marriage Act (DOMA), enacted in 1996, allows states to refuse to recognize same-sex marriages performed under the laws of other states. Section 3 of DOMA prevented the federal government from recognizing same-sex marriages until that provision was ruled unconstitutional by the Supreme Court on June 26, 2013, in United States v. Windsor.[17][18]

The movement to obtain civil marriage rights and benefits for same-sex couples in the United States began in the 1970s,[19] but became more prominent in American politics in 1993 when the Hawaii Supreme Court declared the state's prohibition to be unconstitutional in Baehr v. Lewin.[20] On May 17, 2004, Massachusetts became the first U.S. state and the sixth jurisdiction in the world to legalize same-sex marriage following the Supreme Judicial Court's decision in Goodridge v. Department of Public Health six months earlier.[21] During the 21st century, public support for same-sex civil marriage has grown considerably,[22][23] and national polls conducted since 2011 show that a majority of Americans support legalizing it. On May 9, 2012, Barack Obama became the first sitting U.S. President to publicly declare support for the legalization of same-sex civil marriage.[24] On November 6, 2012, Maine, Maryland, and Washington became the first states to legalize same-sex civil marriage through popular vote.

Legal issues[edit]

Civil same-sex marriage ceremony being performed in San Francisco City Hall in June 2008.

Federal law[edit]

The legal issues surrounding same-sex marriage in the United States are determined by the nation's federal system of government, in which the status of a person (including marriage) in general is determined by the individual states. Prior to 1996, the federal government did not define marriage; any marriage recognized by a state was recognized by the federal government, even if that marriage was not recognized by one or more other states (as was the case with interracial marriage before 1967 due to anti-miscegenation laws). With the passage of the Defense of Marriage Act (DOMA) in 1996, a marriage was explicitly defined in federal law as a union of one man and one woman.[25]

DOMA was challenged in the federal court system. On July 8, 2010, Judge Joseph Tauro of the District Court of Massachusetts held that the denial of federal rights and benefits to lawfully married Massachusetts same-sex couples is unconstitutional under the Tenth Amendment to the U.S. Constitution.[26][27] Since 2010, eight federal courts have found DOMA to be unconstitutional on issues including bankruptcy, public employee benefits, estate taxes, and immigration.[28][29][30] On October 18, 2012, the Second Circuit Court of Appeals became the first court[31] to hold sexual orientation to be a quasi-suspect classification and applied intermediate scrutiny to strike down Section 3 of DOMA as unconstitutional in Windsor v. United States.[32] Windsor and four other federal cases were considered for review by the U.S. Supreme Court,[33][34] which, in its June 26, 2013, decision in Windsor, held Section 3 to be a violation of the Fifth Amendment.[35]

According to the federal government's Government Accountability Office (GAO) in 2004, more than 1,138 rights and protections are conferred to U.S. citizens upon marriage by the federal government; areas affected include Social Security benefits, veterans' benefits, health insurance, Medicaid, hospital visitation, estate taxes, retirement savings, pensions, family leave, and immigration law.[36]

As a result of the Windsor decision, married same-sex couples - regardless of domicile - have social security benefits, tax benefits (which include the previously unavailable ability to file joint tax returns with the IRS), veterans and military benefits, federal employment benefits for employees of the U.S Government and immigration benefits.[37][38] In February 2014, the Justice Department expanded recognition of same-sex marriages in federal legal matters, including bankruptcies, prison visits, survivor benefits and the legal right to refuse to testify to incriminate a spouse.[39]

Many aspects of marriage law are determined by the states, rather than the federal government. The Defense of Marriage Act does not prevent individual states from defining marriage as they see fit. In 1972, the U.S. Supreme Court dismissed Baker v. Nelson, a same-sex marriage case filed in Minnesota, "for want of a substantial federal question."[40] In doing so, the court upheld the state of Minnesota's right to restrict marriage to different-sex couples.[41]

On November 15, 2013, a U.S. district court in Pennsylvania denied a motion to dismiss in a same-sex marriage case, put forth by defendants who argued that Baker v. Nelson is binding precedent. The court said that "[t]he jurisprudence of equal protection and substantive due process has undergone what can only be characterized as a sea change since 1972," allowing the case to proceed to trial in 2014.[42]

Marriage laws in states that do not permit or recognize same-sex marriage have led to court challenges, including Hollingsworth v. Perry, which challenged the validity of California's Proposition 8 under the United States Constitution,[43] Sevcik v. Sandoval, which challenges Nevada's system of marriage for different-sex couples and domestic partnerships for same-sex couples under the equal protection clause,[44] and others.

Opponents of same-sex marriage have worked to prevent individual states from recognizing same-sex unions by attempting to amend the United States Constitution to define marriage as a union between one man and one woman. In 2006, the Federal Marriage Amendment, which would prohibit states from recognizing same-sex marriages, was approved by the Senate Judiciary Committee on a party-line vote and was debated by the full United States Senate, but was ultimately defeated in both Houses of Congress.[45]

On April 2, 2014, the Alabama state house adopted a resolution calling for a constitutional convention to propose an amendment to ban same-sex marriage nation-wide.[46]

State laws[edit]

State laws regarding same-sex partnerships in the United States*
  Same-sex marriage allowed1
  Domestic partnerships or civil unions granting privileges similar to marriage for same-sex domestic partners2
  Limited/enumerated privileges granted by state
  Same-sex marriage performed elsewhere recognized
  No prohibition or recognition of same-sex marriage or unions in territory law
  Judicial ruling against a same-sex marriage ban stayed pending appeal3
  Statute bans same-sex marriage
  Constitution and statute ban same-sex marriage
  Constitution and statute ban same-sex marriage and some or all other same-sex unions

*The federal government recognizes all legally performed same-sex marriages, regardless of the state of residence.
1 The bill legalizing same-sex marriage in Illinois goes into effect on June 1, 2014, but same-sex marriages have already begun in Cook County and select other counties following a court ruling. Eight Native American tribal jurisdictions also allow same-sex marriage.
2 Not recognized by federal government. Some states that allow same-sex marriage also allow other same-sex unions.
3 Same-sex marriages were briefly performed in Utah and Michigan prior to their respective judicial rulings being stayed. The stayed rulings in Kentucky and Ohio would overturn the states' bans on recognizing out-of-state same-sex marriages.

Prior to 2004, same-sex civil marriage was not recognized in any U.S. jurisdiction. It has since been legalized in different jurisdictions through legislation, court ruling,[47] tribal council rulings,[48] and upheld by popular vote in a statewide referendum in three of these states.[49][50]

As of March 22, 2014, sixteen state governments (those of California, Connecticut, Delaware, Hawaii, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, Washington along with the District of Columbia) routinely issue same-sex marriage licenses. Illinois will begin regularly issuing licenses on June 1, 2014, while Utah, Oklahoma, Virginia, Michigan, and Texas are awaiting appellate court decisions after lower courts ruled in favor of allowing such licenses.

All jurisdictions in the Northeast Corridor save Pennsylvania have legalized same-sex marriage.

Colorado, Nevada, Oregon, and Wisconsin have created legal unions for same-sex couples that offer varying subsets of the rights and responsibilities of marriage under the laws of those jurisdictions.

History[edit]

Early history[edit]

In 1998, in response to the Hawaii Supreme Court's ruling in Baehr v. Miike, Hawaii voters approved a state constitutional amendment ("Amendment 2") allowing their legislature to ban same-sex marriage.[51] In 2003, the US Supreme Court struck down Texas' "Homosexual Conduct" law[52] in Lawrence v. Texas.[53] The ruling effectively nullified similar same-sex sodomy laws in Kansas, Oklahoma and Missouri along with broader sodomy laws in nine other states.[54]

Same-sex marriage was first recognized by a United States jurisdiction on November 18, 2003, pursuant to the ruling of the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health.[55]

On February 20, 2004, Sandoval County become the first county in New Mexico to issue marriage licenses to same-sex couples. A restraining order was later issued to prohibit the county clerk from issuing licenses to same-sex couples for the rest of her term, which ended on January 1, 2005.

On May 15, 2008, the Supreme Court of California issued a decision in which it effectively legalized same-sex marriage in California, holding that California's existing opposite-sex definition of marriage violated the constitutional rights of same-sex couples.[56][57] Same-sex marriage opponents in California placed a state constitutional amendment known as Proposition 8 on the November 2008 ballot for the purpose of restoring an opposite-sex definition of marriage.[58] (Proposition 8 was somewhat unusual compared to other initiatives connected to same-sex marriage, since California had ratified same-sex marriages and Proposition 8 was a response intended to subsequently re-remove the right of marriage.) Proposition 8 was passed on Election Day 2008, as were proposed marriage-limiting amendments in Florida and Arizona.[59]

On August 4, 2010, a decision by the U.S. District Court in Perry v. Schwarzenegger ruled that Proposition 8 was unconstitutional.[60] The decision in that case was upheld at appeal and – as the State of California decided not to appeal or defend Proposition 8 – the voters who initially instigated the initiative appealed to the Supreme Court, which asked to be briefed for arguments concerning the appellants' standing, and heard oral arguments on March 26, 2013.[61] In accordance with numerous precedent cases rejecting the concept of proponents' standing to defend a challenged law in Federal court, the Supreme Court dismissed the case for lack of standing in a decision issued June 26, 2013,[62] after which same-sex marriage once again became legal in California.[63] Proposition 8 supporters have expressed the intent to fight on (for example by asserting the ruling only applies to the persons or counties involved), but this was rejected by California's Attorney General Kamala Harris, who noted that "state officials are obligated to govern marriage equally in all counties and that Walker's ruling specifically covers those officials".[64] Same-sex marriages resumed on June 28, 2013.[65]

On October 10, 2008, the Connecticut Supreme Court overturned the state's civil unions statute as unconstitutionally discriminatory against same-sex couples, and required the state to recognize same-sex marriages.[66] The following year, the state general assembly passed gender-neutral marriage legislation, which the state's Republican governor signed into law.[67] Same-sex marriage was legalized in Iowa following the unanimous ruling of the Iowa Supreme Court in Varnum v. Brien on April 3, 2009.[68] This decision was initially scheduled to take effect on April 24, but the date was changed to April 27 for administrative reasons.[69] On December 18, 2009, a same-sex marriage bill was signed into law by the Mayor of the District of Columbia;[70] same-sex marriage licenses became available in Washington, D.C., on March 3, 2010.[71]

By 2009, New England became the center of an organized push to legalize same-sex marriage,[72] which was achieved in all six states in that region by 2013 when Rhode Island legalized such marriages. On April 7, 2009, Vermont legalized same-sex marriage through legislation. The Governor of Vermont had previously vetoed the measure, but the veto was overridden by the Legislature. Vermont became the first state in the United States to legalize same-sex marriage through legislative means rather than litigation. On May 6, 2009, Maine Governor John Baldacci signed a law legalizing same-sex marriage, becoming the first state governor to do so.[73] Nonetheless, the legislation was stayed pending a vote and never went into effect. It was repealed by referendum in November 2009.[47] On June 3, 2009, New Hampshire became the sixth state nationally to legalize same-sex marriage.[74]

2010s[edit]

As of January 2010, 29 states had constitutional provisions restricting marriage to one man and one woman, while 12 others had statutes that did so.[75] Nineteen states banned any legal recognition of same-sex unions that would be equivalent to civil marriage.[76] In 28 out of 30 states where constitutional amendments or initiatives that define marriage as the union of a man and a woman were put on the ballot in a referendum, voters approved such amendments.[c] Arizonans voted down one such amendment in 2006,[77] but approved a different amendment to that effect in 2008.[78] In 2012, Minnesota became the second state to reject an amendment to its state constitution banning same-sex marriage, though Democrats increased their numbers in the legislature in the same election, leading to the May 2013 enactment of same-sex marriage legislation there.[79] A bill that would have legalized same-sex marriage in New Jersey was vetoed by Governor Chris Christie on February 17, 2012[80] before a New Jersey Superior Court ruling led to its legalization in October 2013.

Prior to the November 2012 election, Maryland recognized same-sex marriages formed in other jurisdictions, but did not allow forming such marriages within its borders.[81] New York had been in a similar situation as its courts had held that same-sex marriages conducted in states where they are legal must be recognized by those states, but that the state statutes did not allow the issuance of same-sex marriage licenses,[82] a situation which changed when its legislature legalized granting licenses to same-sex couples in 2011.

On May 8, 2012, North Carolina voters approved a constitutional amendment banning same-sex marriage as well as all other types of same-sex unions. The North Carolina vote was held on the same day as the Republican Presidential primary (which was won by Romney),[83] therefore disproportionally drawing more Republicans to this special election. The amendment was approved 61.04% to 38.96%, with a voter turnout of 34.66%.[84] North Carolina already prohibited same-sex marriages by statute.

In the regular November 2012 elections, however, state voters for the first time approved same-sex marriage by popular vote, in Maine, Maryland, and Washington. Maine's law took effect on December 29, 2012.[85] By law, Maryland started allowing same-sex marriages on January 1, 2013,[86] The Washington legislature had enacted legislation that would institute same-sex marriage in the state in February 2012, but the enactment was stayed pending a voter referendum, which passed. The referendum was certified on December 5, 2012, and the first licenses were distributed on December 9.[87][88] In the same election, Minnesota became the second state to reject a statewide constitutional ban against same-sex marriage by a popular vote.[89][90]

Several governments enacted same-sex marriage in 2013. The Little Traverse Bay Band of Odawa Indians of Michigan voted in March 2013 to legalize same-sex marriages under their tribal jurisdiction, although the state maintained that it would not recognize the marriages.[48] The Rhode Island legislature passed a bill legalizing same-sex marriage on May 2, which took effect August 1;[91] Delaware enacted legislation on May 7, which took effect July 1;[92] and Minnesota enacted legislation on May 14, which took effect August 1.[93] In July 2013, a court clerk in Montgomery County, Pennsylvania began issuing marriage licenses to same-sex couples, with the rationale that the state marriage statutes are unconstitutional,[94] but his action was overruled by a state intermediate appellate court in September and he was ordered to cease issuing the licenses.[95]

New Jersey began issuing same-sex marriage licenses on October 21, 2013, following a September 27 state superior court decision which found an equal protection guarantee for same-sex couples. Governor Chris Christie originally filed an appeal to the New Jersey Supreme Court, but withdrew it after the court declined to issue a stay on the lower court's ruling.[96][97][98][99]

In October and November 2013, both houses of the Hawaii legislature enacted legislation legalizing same-sex marriage, which Governor Neil Abercrombie signed on November 13. The law took effect on December 2, 2013.[100] The Illinois General Assembly passed a bill legalizing same-sex marriage on November 5, 2013. The House of Representatives narrowly passed an amended version of an earlier Senate bill 61–54–2 with the Senate approving the House version 32–21 only about an hour later. Governor Pat Quinn signed the legislation on November 20.[101] On February 21, 2014 U.S District Judge Sharon Johnson Coleman ruled that same-sex couples in Cook County, which includes Illinois' largest city Chicago, can obtain marriage licenses immediately and need not wait until the law's June 1 effective date.[102] On February 26, 2014, a Champaign County clerk began issuing same-sex marriage licenses after consulting the State's Attorney and concluding that the Cook County order is applicable.[103]

In 2013, certain New Mexico counties, either on the basis of a court decision or their clerks' own volition, began issuing marriage licenses to same-sex couples. In August 2013, Doña Ana County[104] and Santa Fe County began issuing same-sex marriage licenses, the latter through a court order.[105][106][107][108][109] Although opponents filed for an injunction,[110] same-sex marriage expanded to a total of eight New Mexico counties.[111] On December 19, 2013, the state Supreme Court ruled unanimously that, effective immediately, same-sex marriage would be permitted throughout the state.[112]

On December 20, 2013, Judge Robert J. Shelby of the U.S. District Court for Utah struck down Utah's same-sex marriage ban as unconstitutional in Kitchen v. Herbert.[113] Salt Lake County began issuing marriage licenses immediately, followed by other counties.[114] After failing to get the District Court or the Tenth Circuit Court of Appeals to stay the decision pending appeal, Utah state officials asked for a stay from the United States Supreme Court, which granted the request on January 6, 2014.[6][115] The stay allowed Utah to reinstate its ban on same-sex marriage and deny state services to married same-sex couples.[116] On January 10, U.S. Attorney General Eric Holder announced that the federal government would recognize the marriages of same-sex couples who married in Utah between December 20, 2013, and January 6, 2014.[117] The Tenth Circuit ordered the appeals process to be heard on an expedited basis[118] and set a briefing schedule to be completed by February 25.[119]

On January 14, 2014, U.S. District Court Judge Terence C. Kern ruled in Bishop v. Oklahoma that Oklahoma's ban on same-sex marriage is unconstitutional. He stayed his ruling pending appeal.[7] On January 23, Virginia Attorney General Mark Herring announced that the state would reverse its position and support a federal lawsuit challenging the Virginia state constitution's ban on same-sex marriage.[120] On January 21, a 3-judge panel of the Ninth Circuit Court of Appeals, considering issues unrelated to marriage in SmithKline Beecham Corporation v. Abbott Laboratories, ruled that distinctions based on sexual orientation are subject to the "heightened scrutiny" standard of review.[121] In response to that decision, on February 10, Nevada State Attorney General Catherine Cortez Masto withdrew the state's brief in Sevcik v. Sandoval, ending its defense of the state's ban on same-sex marriage.[122] Because the decision in SmithKline was not appealed, heightened scrutiny remains the standard of review in the Ninth Circuit for laws and government actions that draw distinctions based on sexual orientation.[123]

On February 12, U.S. District Judge John G. Heyburn declared Kentucky's refusal to recognize same-sex marriages from other jurisdictions unconstitutional, and suggested that the state's ban on performing same-sex marriages within its borders would not survive a constitutional challenge.[8][124] On February 27, Judge Heyburn issued an order requiring the state to recognize same-sex marriages performed in other jurisdictions,[125] but the next day he stayed that order until March 20.[126] On March 19, the stay was extended pending action by the Sixth Circuit, noting the stay granted by the U.S. Supreme Court in Kitchen v. Herbert.[127]

On February 13, Judge Arenda L. Wright Allen of the U.S. District Court for the Eastern District of Virginia ruled that the state's ban on same-sex marriage is unconstitutional. She stayed enforcement of her ruling in Bostic v. Rainey pending appeal.[128] On February 26, Judge Orlando Garcia ruled in De Leon v. Perry that Texas' ban on same-sex marriage is unconstitutional, "[w]ithout a rational relation to a legitimate governmental purpose", and stayed enforcement of his ruling pending appeal to the Fifth Circuit.[129]

On March 4, Illinois Attorney General Lisa Madigan issued an opinion that a recent court decision ordering Cook County to issue marriage licenses immediately did not apply to all county clerks, but advised clerks that they should find the decision "persuasive as you evaluate whether to issue marriage licenses to same-sex couples". Governor Pat Quinn then announced that the Illinois Department of Public Health would record marriages issued by any county clerk.[130] Several of the state's 102 county clerks began, or announced plans to begin, issuing marriage licenses to same-sex couples in March.[131]

On March 21, U.S. District Court Judge Bernard A. Friedman issued a decision that found Michigan's ban on same-sex marriage unconstitutional. He did not stay enforcement of his decision. Michigan Attorney General Bill Schuette filed an emergency request with the Sixth Circuit Court of Appeals for a stay pending appeal.[132] Hundreds of same-sex couples obtained marriage licenses and some married in Michigan on the morning of March 22 before the appeals court temporarily stayed enforcement of the ruling until March 26.[133] On March 25, the stay pending appeal was granted by the appellate court.

States that license same-sex marriage (table)[edit]

Note: This table shows only states that license same-sex marriages or have legalized it. It does not include states that recognize same-sex marriages but do not license them.

States (and D.C.) with same-sex marriage
State or federal district State population
(US Census estimate 2013[134])
Legalization date Effective date Legalization method
1.  Massachusetts 6,692,824 November 18, 2003 May 17, 2004 Massachusetts Supreme Judicial Court ruling in Goodridge v. Department of Public Health.
2.  California 38,332,521 May 15, 2008 June 16, 2008 California Supreme Court ruling in in re Marriage Cases. Same-sex marriages were permitted for some months until they were curtailed upon the passage of Proposition 8 on November 5, 2008.
August 4, 2010 June 28, 2013 In Perry v. Schwarzenegger, Proposition 8 was ruled unconstitutional on August 4, 2010. The case reached the U.S. Supreme Court after an appeal in the Ninth Circuit. The U.S. Supreme Court ruled that the official proponents of Proposition 8 lacked standing to appeal in federal court due to a lack of direct injury required by well-established precedential standards. (June 26, 2013) Same-sex marriages resumed on June 28, 2013.[65]
3.  Connecticut 3,596,080 October 10, 2008 November 12, 2008 Connecticut Supreme Court ruling in Kerrigan v. Commissioner of Public Health, subsequently passed by the Connecticut General Assembly as Public Act 09-13.
4.  Iowa 3,090,416 April 3, 2009 April 27, 2009 Iowa Supreme Court ruling in Varnum v. Brien.
5.  Vermont 626,630 April 7, 2009 September 1, 2009 Passed by the Vermont General Assembly (overriding Governor Douglas' veto).
6.  New Hampshire 1,323,459 June 3, 2009 January 1, 2010 Passed by the New Hampshire General Court.
-  District of Columbia 646,449 December 18, 2009 March 9, 2010 Passed by the Council of the District of Columbia.
7.  New York 19,651,127 June 24, 2011 July 24, 2011 Passed by the New York State Legislature (Marriage Equality Act (New York)).
8. Washington (state) Washington 6,971,406 November 6, 2012 December 6, 2012 Passed by the Washington State Legislature; approved by voters in Referendum 74.
9.  Maine 1,328,302 December 29, 2012 Approved by voters in Question 1 (2012).
10.  Maryland 5,928,814 January 1, 2013 Passed by the Maryland General Assembly and upheld by voters in Question 6 referendum.
11.  Rhode Island 1,051,511 May 2, 2013 August 1, 2013 Passed by the Rhode Island General Assembly.
12.  Delaware 925,749 May 7, 2013 July 1, 2013 Passed by the Delaware General Assembly.
13.  Minnesota 5,420,380 May 14, 2013 August 1, 2013 Passed by the Minnesota Legislature.
14.  New Jersey 8,899,339 September 27, 2013 October 21, 2013 New Jersey Superior Court ruling in Garden State Equality v. Dow.
15.  Hawaii 1,404,054 November 13, 2013 December 2, 2013 Passed by the Hawaii State Legislature (Hawaii Marriage Equality Act).
16.  Illinois 12,882,135 November 20, 2013 June 1, 2014 Passed by the Illinois General Assembly. Law goes into effect on June 1, 2014. On March 4, 2014, Governor Pat Quinn directed the Illinois Department of Health to accept marriage licenses issued by any county clerk in the state.[135]
17.  New Mexico 2,085,287 December 19, 2013 December 19, 2013 New Mexico Supreme Court ruling in Griego v. Oliver.
Total 120,856,483
(38.23% of the U.S. population)

States with stayed rulings for same-sex marriage[edit]

Note: This table only lists states where a court has ruled the state's prohibition on performing same-sex marriage unconstitutional while staying enforcement of its ruling pending appeal.

States with stayed rulings for same-sex marriage
State State population
(US Census estimate 2013[134])
Ruling date Stayed from date Court ruling
1.  Utah 2,900,872 December 20, 2013 January 6, 2014 United States District Court for the District of Utah ruling in Kitchen v. Herbert.[136] District Court's order stayed on January 6, 2014, by the United States Supreme Court pending appeal. About 1,400 same-sex marriages were performed in Utah in the 17 days before the stay was issued.[137] The Tenth Circuit heard oral argument on April 10.[138]
2.  Oklahoma 3,814,820 January 14, 2014 January 14, 2014 United States District Court for the Northern District of Oklahoma ruling in Bishop v. Oklahoma.[139] Enforcement stayed in initial ruling, referencing the Supreme Court's stay in Kitchen v. Herbert. The Tenth Circuit has scheduled oral argument for April 17.[140]
3.  Virginia 8,260,405 February 13, 2014 February 13, 2014 United States District Court for the Eastern District of Virginia ruling in Bostic v. Rainey.[141] Enforcement stayed in initial ruling, referencing the Supreme Court's stay in Kitchen v. Herbert. The Fourth Circuit has scheduled oral argument for the week of May 12.[142]
4.  Texas 26,448,193 February 26, 2014 February 26, 2014 United States District Court for the Western District of Texas ruling in De Leon v. Perry.[143] Enforcement stayed in initial ruling, referencing the Supreme Court's stay in Kitchen v. Herbert.
5.  Michigan 9,895,622 March 21, 2014 March 22, 2014 United States District Court for the Eastern District of Michigan ruling in DeBoer v. Snyder. Enforcement temporarily stayed until Wednesday, March 26, 2014 in initial ruling, citing the need for more time for consideration of a full stay.[144] On March 25, the stay was extended indefinitely.[145] Same-sex marriages were performed in Michigan on the morning of March 22 before the stay was issued that same day.
Total 51,319,912
(16.23% of the U.S. population)

State(s) that recognize same-sex marriage[edit]

Note: This table only includes states with full recognition of same-sex marriage. It doesn't include states that license same-sex marriages or have legalized it.

State(s) that recognize same-sex marriage
State State population
(US Census estimate 2013[134])
Legalization date Effective date Legalization method
1.  Oregon 3,930,065 October 16, 2013 October 18, 2013 The Chief Operating Officer Michael Jordan sent a memo to all of the state agencies to recognize all same-sex marriages performed in states where legal.[146]
Total 3,930,065
(1.24% of the U.S. population)

States with stayed rulings to recognize same-sex marriage[edit]

Note: This table only lists states where a court has ruled the state's prohibition on recognizing same-sex marriage unconstitutional while staying enforcement of its ruling pending appeal.

States with stayed rulings for same-sex marriage
State State population
(US Census estimate 2013[134])
Ruling date Stayed from date Court ruling
1.  Kentucky 4,395,295 February 27, 2014 February 28, 2014 United States District Court for the Western District of Kentucky ruling in Love v. Beshear that the state must recognize same-sex marriages from other jurisdictions.[147] Enforcement stayed the day after the initial ruling[148] and stay confirmed March 19,[127] referencing the Supreme Court's stay in Kitchen v. Herbert.
2.  Ohio 11,570,808 April 14, 2014 April 14, 2014 United States District Court for the Southern District of Ohio ruling in Henry v. Himes that the state must recognize same-sex marriages from other jurisdictions.[12] Enforcement temporarily stayed until the district judge holds a hearing on a full stay, after being briefed.
Total 15,966,103
(5.05% of the U.S. population)

Tribal laws[edit]

In the United States, federally recognized Native American tribes have the legal right to form their own marriage laws.[149] There are eight tribal jurisdictions that legally recognize same-sex marriage: the Cheyenne and Arapaho Tribes,[150] the Confederated Tribes of the Colville Reservation,[151] the Coquille Tribe,[152] the Little Traverse Bay Bands of Odawa Indians,[153] the Pokagon Band of Potawatomi Indians,[154] the Santa Ysabel Tribe,[155] the Leech Lake Band of Ojibwe,[156] and the Suquamish tribe.[157]

Debate[edit]

Support[edit]

Rally for same-sex marriage (May 2009, San Francisco, California)

Same-sex marriage supporters make several arguments in support of their position. Gail Mathabane likens prohibitions on same-sex marriage to past U.S. prohibitions on interracial marriage.[158] Fernando Espuelas argues that same-sex marriage should be allowed because same-sex marriage extends a civil right to a minority group.[159] According to an American history scholar, Nancy Cott, "there really is no comparison, because there is nothing that is like marriage except marriage."[160]

The Human Rights Campaign (HRC) is one of the leading advocacy groups in support of same-sex marriage. According to the HRC's website, "Many same-sex couples want the right to legally marry because they are in love—many, in fact, have spent the last 10, 20 or 50 years with that person—and they want to honor their relationship in the greatest way our society has to offer, by making a public commitment to stand together in good times and bad, through all the joys and challenges family life brings."[161]

The leading associations of psychological, psychiatric, medical, and social work professionals in the United States such as American Psychiatric Association, American Psychological Association, American Medical Association, American Academy of Pediatrics, American Academy of Nursing and National Association of Social Workers have said that claims that the legal recognition of marriage for same–sex couples undermines the institution of marriage and harms children is inconsistent with the scientific evidence which supports the conclusions: that homosexuality is a normal expression of human sexuality that is not chosen; that gay and lesbian people form stable, committed relationships essentially equivalent to heterosexual relationships; that same-sex parents are no less capable than opposite-sex parents to raise children; and that the children of same-sex parents are no less psychologically healthy and well-adjusted than children of opposite-sex parents.[162][163][164][165][166][167][168] The body of research strongly supports the conclusion that discrimination by the federal government between married same-sex couples and married opposite-sex couples in granting benefits unfairly stigmatizes same-sex couples. The research also contradicts the stereotype-based rationales advanced to support passage of DOMA that the Equal Protection Clause was designed to prohibit.[169]

Garden State Equality states that the wording "same-sex marriage" implies a separate, and therefore unequal, category of marriage.[170] The 2012 Democratic Party Platform used the term "marriage equality" in its support.[171]

Role of social media[edit]

Supporters of the legalization of same-sex marriage have successfully used social media websites such as Facebook to help achieve that goal.[172][173][174] Some have argued that the successful use of social media websites by LGBT groups has played a key role in the defeat of religion-based opposition.[175]

One of the largest scale uses of social media to mobilize support for same-sex marriage preceded and coincided with the arrival at the US Supreme Court of high-profile legal cases for Proposition 8 and the Defense of Marriage Act in March 2013. The 'red equals sign' project started by the Human Rights Campaign was an electronic campaign primarily based on Facebook which encouraged users to change their profile images to a red equal sign to express support for same-sex marriage.[176] At the time of the court hearings it was estimated that approximately 2.5 million Facebook users changed their profile images to a red equals sign.[177]

Opposition[edit]

Rally for Prop 8 in Fresno, California (October 2008)

Opponents of same-sex marriage in the United States ground their arguments on parenting concerns, religious concerns, concerns that changes to the definition of marriage would lead to the inclusion of polygamy or incest, and in natural law-based reasoning.[178] The Southern Baptist Convention adopted a statement in June 2003 that legalizing same-sex relationships would "convey a societal approval of a homosexual lifestyle, which the Bible calls sinful and dangerous both to the individuals involved and to society at large".[179] The Church of Jesus Christ of Latter-day Saints, the United States Conference of Catholic Bishops, the Southern Baptist Convention, and National Organization for Marriage claim that children do best when raised by a mother and father, and that legalizing same-sex marriage is, therefore, contrary to the best interests of children.[180][181][182][183] Maggie Gallagher of the National Organization for Marriage has raised concerns about the impact of same-sex marriage upon religious liberty and upon faith-based charities in the United States.[184] Opponents of same-sex marriage have claimed that redefining marriage to include same-sex relationships would have harmful effects on biological family, children's rights, and social welfare.[185][186] Stanley Kurtz of the Weekly Standard has written that same-sex marriage would eventually lead to the legalization of polygamy and polyamory, or group marriage, in the United States.[187]

The funding of the amendment referendum campaigns has been an issue of great dispute. Both judges[188][189] and the IRS[190] have ruled that it is either questionable or illegal for campaign contributions to be shielded by anonymity. In February 2012, the National Organization for Marriage vowed to spend $250,000 in Washington legislative races to defeat the Republican state senators who voted for same-sex marriage.[191]

Obama administration[edit]

President Barack Obama explains his change of view on same-sex marriage with Robin Roberts of ABC's Good Morning America, in the Cabinet Room of the White House, May 9, 2012.

In the first half of 2009, it was reported that Barack Obama opposed a federal mandate for same-sex marriage, and also opposed the Defense of Marriage Act,[192] stating that individual states should decide the issue.[193][194] Obama opposed Proposition 8—California's constitutional ban on same-sex marriage—in 2008.[195] In December 2010, the White House website stated that the president supported full civil unions and federal rights for LGBT couples and opposed a constitutional ban on same-sex marriage.[196] He also stated that his position on same-sex marriage was "evolving" and that he recognized that civil unions from the perspective of same-sex couples was "not enough", before subsequently declaring his full support for the legalization of same-sex marriage in 2012.[197]

On May 9, 2012, President Obama announced in an interview with ABC News that after wrestling with the subject for many years, he had come to believe same-sex couples should be allowed to marry. In the same interview, he stated his belief that individual states should have the final say as to whether same-sex marriage is recognized. The announcement made Obama the first United States president to publicly declare his support of same-sex marriage while in office, and marked a departure from his previous stance on the issue.[24][198][199][200] During the 2008 presidential campaign, Obama had stated, "I believe that marriage is the union between a man and a woman. For me as a Christian, it is a sacred union. You know, God is in the mix."[201] although he remained supportive of the rights of individuals who identified as gay or lesbian.[196] Obama had previously made comments in support of same-sex marriage as early as the 1990s during his campaign for the Illinois Senate.[202] In a 1996 newspaper interview, Obama stated "I favor legalizing same-sex marriages, and would fight efforts to prohibit such marriages."[203]

In the run-up to the 2012 presidential election, the campaign of the Democratic presidential ticket (Obama-Biden) continually emphasized the administration's support for marriage equality, making it a key part of the campaign. President Obama was reelected and mentioned LGBT rights and marriage equality both explicitly and implicitly in both his victory speech on November 7, 2012, and in his inauguration speech on January 21, 2013.

Politicians and media figures[edit]

Former presidents Bill Clinton[204] and Jimmy Carter,[205] former vice presidents Dick Cheney[206] and Al Gore,[207] and current Vice President Joe Biden have voiced their support for legal recognition, as have former first ladies Laura Bush[208] and Hillary Clinton.[209] Former president George H. W. Bush and his wife Barbara have served as witnesses to a same-sex wedding, but neither has publicly stated whether this means they support same-sex marriage in general.[210] In May 2012, Barack Obama became the first sitting President to support same-sex marriage.[24] In March 2013, Rob Portman became the first sitting Republican senator to endorse same-sex marriage.[211] After the Supreme Court heard arguments in Hollingsworth v. Perry and United States v. Windsor the same month, support for same-sex marriage in the Senate increased. 15 Senators announced their support in the following weeks,[212] including another Republican, Senator Mark Kirk of Illinois. A majority of the Senate now supports same-sex marriage.[213] In June 2013, Lisa Murkowski became the third Republican senator to endorse same-sex marriage.[214]

During the 2008 presidential election campaign, then-Republican Vice Presidential candidate Sarah Palin stated: "I have voted along with the vast majority of Alaskans who had the opportunity to vote to amend our Constitution defining marriage as between one man and one woman. I wish on a federal level that that's where we would go because I don't support gay marriage."[215]

Congressman Barney Frank voiced his concern in September 2009 with regard to the ability to obtain sufficient votes to overturn the Defense of Marriage Act: "If we had a chance to pass that, it would be a different story, but I don't think it's a good idea to rekindle that debate when there's no chance of passage in the near term."[216] In 2009, Pelosi described the difficulty in repealing the Defense of Marriage Act: "I would like to get rid of all of it. But the fact is we have to make decisions on what we can pass at a given time. It doesn't mean the other issues are not important. It is a matter of getting the votes and the legislative floor time to do it."[217]

Commenting on the decision by U.S. District Court Judge Vaughn Walker regarding Proposition 8 in California, former Speaker of the House of Representatives Newt Gingrich issued a statement in opposition to same-sex marriage, which read, in part, as follows: "Judge Walker's ruling overturning Prop 8 is an outrageous disrespect for our Constitution and for the majority of people of the United States who believe marriage is the union of husband and wife... Congress now has the responsibility to act immediately to reaffirm marriage as a union of one man and one woman as our national policy."[218] Gingrich, whose sister is openly gay,[219] later commented that he could accept civil—but not religious—same-sex marriages, and encouraged the Republican Party to accept the "reality" of same-sex marriage becoming legal.[220]

Then-Speaker of the House Nancy Pelosi expressed her support for Judge Walker's decision: "I am extremely encouraged by the ruling today, which found that Proposition 8 violated both the due process and equal protection clauses of the U.S. Constitution. Proposition 8 has taken away individual rights and freedoms, and is a stain upon the California Constitution. We must continue to fight against discriminatory marriage amendments and work toward the day when all American families are treated equally."[221]

In an O'Reilly Factor interview in August 2010, when Glenn Beck was asked if he "believe(s) that gay marriage is a threat to [this] country in any way", he stated, "No I don't...I believe that Thomas Jefferson said: 'If it neither breaks my leg nor picks my pocket what difference is it to me?'"[222][223]

On his radio show in August 2010, Rush Limbaugh made the following comments: "Marriage? There's a definition of it, for it. It means something. Marriage is a union of a man and woman. It's always been that. If you want to get married and you're a man, marry a woman. Nobody's stopping you. This is about tearing apart an institution."[224]

Public opinion[edit]

  Recent polls that show a majority of that state's population supports same-sex marriage.
  Recent polls that show a plurality of that state's population supports same-sex marriage.
  Recent polls that show a plurality of that state's population opposes same-sex marriage.
  Recent polls that show a majority of that state's population opposes same-sex marriage.
  No recent poll data.

As of 2013, public support for same-sex marriage in the United States has solidified above 50%.[225][226][227] Public support for same-sex marriage has grown at an increasing pace since the 1990s.[22] In 1996, just 25% of Americans supported legalization of same-sex marriage. Polls have shown that support is identical among whites and Hispanics, while support for same-sex marriage trails among blacks.[228] Polling trends in 2010 and 2011 showed support for same-sex marriage gaining a majority, although the difference is within the error limit of the analysis.[229] On May 20, 2011, Gallup reported majority support for same-sex marriage for the first time in the country.[230] In June 2011, two prominent polling organizations released an analysis of the changing trend in public opinion about same-sex marriage in the United States, concluding that "public support for the freedom to marry has increased, at an accelerating rate, with most polls showing that a majority of Americans now support full marriage rights for all Americans."[231]

A 2013 poll showed a record high of 58% of the American people supporting legal recognition for same-sex marriage.[232][233] In May 2013, a Gallup poll showed that 53% of Americans would vote for a law legalizing same-sex marriage in all 50 states. Three previous readings over the course of a year consistently showed support at 50% or above. Gallup noted: "Just three years ago, support for gay marriage was 44%. The current 53% level of support is essentially double the 27% in Gallup's initial measurement on gay marriage, in 1996."[234] Some commentators, however, have noted instances where polling data has overstated voter opposition to referendums banning same-sex marriage.[235] One 2010 study concluded that "polls on gay marriage ballot initiatives generally under-estimate the opposition to gay marriage by about seven percentage points".[236]

Effects of same-sex marriage[edit]

Economic impact on same-sex couples[edit]

In June 2013, the Supreme Court's ruling in United States v. Windsor struck down section 3 of the Defense of Marriage Act and required the federal government to treat legally married same-sex couples on an equal basis with heterosexual married couples. Before that ruling, however, same-sex married couples faced a number of severe disadvantages. While some states extended full marriage rights to same-sex couples within their borders, until section 3 of DOMA was struck down none of those legally married couples were recognized by the federal government for any purpose, financial or otherwise.

According to a 1997 General Accounting Office study requested by Rep. Henry Hyde (R), at least 1,049 U.S. federal laws and regulations include reference to marital status.[237] A later 2004 study by the Congressional Budget Office found 1,138 statutory provisions "in which marital status is a factor in determining or receiving 'benefits, rights, and privileges.'"[238] Many of these laws govern property rights, benefits, and taxation. Same-sex couples whose marriages are not recognized by the federal government were ineligible for spousal and survivor Social Security benefits.[238] Badgett's research found that the resulting difference in Social Security income for same-sex couples compared to opposite-sex married couples was US$5,588 per year.

The federal ban on same-sex marriage and benefits through the 1996 Defense of Marriage Act (DOMA) also extended to federal government employee benefits.[238] According to Badgett's work, same-sex couples faced the following other financial disadvantages against which legal marriage at least partially shielded opposite-sex couples:[239]

  • Legal costs associated with obtaining domestic partner documents to gain legal abilities granted automatically by legal marriage, including power of attorney, health care decision-making, and inheritance[239]
  • A legal spouse could inherit an unlimited amount from the deceased without incurring an estate tax but a same-sex partner would have to pay the estate tax on the inheritance from her/his partner[238]
  • Same-sex couples were not eligible to file jointly as a married couple and thus could not take the advantages of lower tax rates when the individual income of the partners differs significantly[238] (however, in early 2013 the IRS did recognize the community property and income of same-sex partners in community property states[240])
  • Only 18% of companies offered domestic partner health care benefits[239]
  • Employer-provided health insurance coverage for a same-sex partner incurred federal income tax, unlike like coverage provided to a heterosexual couple[238]
  • Higher health costs associated with lack of insurance and preventative care: 20% of same-sex couples had a member who was uninsured compared to 10% of married opposite-sex couples[239]
  • Inability to protect jointly-owned home from loss due to costs of potential medical catastrophe[239]
  • Inability of a U.S. citizen to sponsor a same-sex spouse for citizenship, as married heterosexuals automatically could[239]

Some 7,400 companies were offering spousal benefits to same-sex couples as of 2008. In states that recognize same-sex marriages, same-sex couples can continue to receive those same benefits only if they marry.[241]

Potential economic disadvantages[edit]

While the legal benefits of marriage are numerous, same-sex couples could face the same financial constraints of legal marriage as opposite-sex married couples. Such potential effects include the marriage penalty in taxation.[238] Similarly, while social service providers usually do not count one partner's assets toward the income means test for welfare and disability assistance for the other partner, a legally married couple's joint assets are normally used in calculating whether a married individual qualifies for assistance.[238]

Economic impact on the federal government[edit]

The 2004 Congressional Budget Office study, working from an assumption "that about 0.6 percent of adults would enter into same-sex marriages if they had the opportunity" (an assumption in which they admitted "significant uncertainty") estimated that legalizing same-sex marriage throughout the United States "would improve the budget's bottom line to a small extent: by less than $1 billion in each of the next 10 years". This result reflects an increase in net government revenues (increased income taxes due to marriage penalties more than offsetting decreased tax revenues arising from postponed estate taxes). Marriage recognition would increase the government expenses for Social Security and Federal Employee Health Benefits but that increase would be more than made up for by decreased expenses for Medicaid, Medicare, and Supplemental Security Income.[238]

Mental health[edit]

Based in part on research that has been conducted on the adverse effects of stigmatization of gays and lesbians, numerous prominent social science organizations have issued position statements supporting same-sex marriage and opposing discrimination on the basis of sexual orientation; these organizations include the American Psychoanalytic Association and the American Psychological Association.[169]

Several psychological studies[242][243][244] have shown that an increase in exposure to negative conversations and media messages about same-sex marriage creates a harmful environment for the LGBT population that may affect their health and well-being.

One study surveyed more than 1,500 lesbian, gay and bisexual adults across the nation and found that respondents from the 25 states that have outlawed same-sex marriage had the highest reports of "minority stress"—the chronic social stress that results from minority-group stigmatization—as well as general psychological distress. According to the study, the negative campaigning that comes with a ban is directly responsible for the increased stress. Past research has shown that minority stress is linked to health risks such as risky sexual behavior and substance abuse.[245]

Two other studies examined personal reports from LGBT adults and their families living in Memphis, Tennessee, immediately after a successful 2006 ballot campaign banned same-sex marriage. Most respondents reported feeling alienated from their communities. The studies also found that families experienced a kind of secondary minority stress, says Jennifer Arm, a counseling graduate student at the University of Memphis.[246]

At the Perry v. Schwarzenegger trial, expert witness Ilan Meyer testified that the mental health outcomes for gays and lesbians would improve if laws such as Proposition 8 did not exist because "when people are exposed to more stress...they are more likely to get sick..." and that particular situation is consistent with laws that say to gay people "you are not welcome here, your relationships are not valued." Such laws have "significant power", he said.[247]

Physical health[edit]

In 2009, a pair of economists at Emory University tied the passage of state bans on same-sex marriage in the US to an increase in the rates of HIV infection.[248][249] The study linked the passage of same-sex marriage ban in a state to an increase in the annual HIV rate within that state of roughly 4 cases per 100,000 population.

A study by the Columbia Mailman School of Public Health found that gay men in Massachusetts visited health clinics significantly less often following the legalization of same-sex marriage in that state.[250]

Polling[edit]

Polling in states that have legalized same-sex marriage has shown that a majority of respondents generally agree the legalization of same-sex marriage has had no effect on them.

A survey done by Public Policy Polling of 1,539 registered Massachusetts voters in May 2013 found that 60% of respondents claimed the legalization of same-sex marriage had "no impact" on their personal lives, with an additional 25% citing a "positive impact". Only 15% of respondents claimed the legalization of same-sex marriage had a "negative impact" on their personal lives.[251]

A survey done by Public Policy Polling of 953 registered Maine voters in August 2013 found that 62% of respondents claimed the legalization of same-sex marriage had "no impact" on their personal lives, with an additional 18% citing a "positive impact". Only 20% of respondents claimed the legalization of same-sex marriage had a "negative impact" on their personal lives.[252]

A survey done by Public Policy Polling of 1,354 registered New Hampshire voters in January 2014 found that 66% of respondents claimed the legalization of same-sex marriage had "no impact" on their personal lives, with an additional 20% citing a "positive impact". Only 14% of respondents claimed the legalization of same-sex marriage had a "negative impact" on their personal lives.[253]

A survey done by Public Policy Polling of 869 registered Iowa voters in February 2014 found that 64% of respondents claimed the legalization of same-sex marriage had "no impact" on their personal lives, with an additional 14% citing a "positive impact". Only 22% of respondents claimed the legalization of same-sex marriage had a "negative impact" on their personal lives.[254]

Case law[edit]

United States case law regarding same-sex marriage:

1970s[edit]

  • Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) (upholding a Minnesota law defining marriage as the union of a man and a woman)
  • Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973) upholding the denial of a marriage license to two women in Kentucky based on dictionary definitions of marriage, despite the fact that state statutes do not restrict marriage to a male-female couple, because "in substance, the relationship proposed ... is not a marriage."[255][256]
  • Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974) (ban on same-sex marriage was constitutional on the basis of gender discrimination; because the historical definition of marriage is between one man and one woman, same-sex couples are inherently ineligible to marry)

1980s[edit]

  • Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (affirming that same-sex marriage does not make one a "spouse" under the Immigration and Nationality Act)
  • De Santo v. Barnsley, 476 A.2d 952 (Pa. Super. Ct. 1984) (same-sex couples cannot undergo divorce proceedings because they cannot enter a common law marriage)[257]

1990s[edit]

  • In re Estate of Cooper, 564 N.Y.S.2d 684 (Fam. Ct. 1990) (the state has a compelling interest in fostering the traditional institution of marriage and prohibiting same-sex marriage)
  • Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (holding that statute limiting marriage to opposite-sex couples violates the Hawaii constitution's equal-protection clause unless the state can show that the statute is (1) justified by compelling state interests and (2) narrowly tailored, prompting a state constitutional amendment and the federal Defense of Marriage Act)
  • Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995)
  • Storrs v. Holcomb, 645 N.Y.S.2d 286 (App. Div. 1996) (New York does not recognize or authorize same-sex marriage); overturned in part by Martinez v. County of Monroe (2008) (out-of-state same-sex marriages must be recognized equal to out-of-state opposite-sex marriages because they do not violate public policy)
  • In re Estate of Hall, 707 N.E.2d 201, 206 (Ill. App. Ct. 1998) (no same-sex marriage will be recognized; petitioner claiming existing same-sex marriage was not in a marriage recognized by law)
  • Baker v. Vermont, 170 Vt. 194; 744 A.2d 864 (Vt. 1999) (Common Benefits Clause of the state constitution requires that same-sex couples be granted the same legal rights as married persons)

2000s[edit]

  • Rosengarten v. Downes, 806 A.2d 1066 (Conn. Ct. App. 2002) (Vermont civil union cannot be dissolved in Connecticut)
  • Burns v. Burns, 560 S.E.2d 47 (Ga. Ct. App. 2002) (recognizing marriage as between one man and one woman)
  • Frandsen v. County of Brevard, 828 So. 2d 386 (Fla. 2002) (State constitution will not be construed to recognize same-sex marriage; sex classifications not subject to strict scrutiny under Florida constitution)
  • In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002) (a post-op male-to-female transgendered person may not marry a male, because this person is still a male in the eyes of the law, and marriage in Kansas is recognized only between a man and a woman)
  • Standhardt v. Superior Court ex rel. County of Maricopa, 77 P.3d 451 (Ariz. Ct. App. 2003) (no state constitution right to same-sex marriage)
  • Morrison v. Sadler, 2003 WL 23119998 (Ind. Super. Ct. 2003) (Indiana's Defense of Marriage Act is found valid)
  • Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003) (denial of marriage licenses to same-sex couples violated provisions of the state constitution guaranteeing individual liberty and equality, and was not rationally related to a legitimate state interest)
  • Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) (reversing 368 F. Supp. 2d 980 (D. Neb. 2005)) (Nebraska's Initiative Measure 416 does not violate Fourteenth Amendment's Equal Protection Clause, was not a bill of attainder, and does not violate the First Amendment; "laws limiting the state-recognized institution of marriage to heterosexual couples ... do not violate the Constitution of the United States")[258]
  • Lewis v. Harris, 908 A.2d 196 (N.J. 2006) (New Jersey is required to extend all rights and responsibilities of marriage to same-sex couples, but prohibiting same-sex marriage does not violate the state constitution; legislature given 180 days from October 25, 2006 to amend the marriage laws or create a "parallel structure")
  • Andersen v. King County, 138 P.3d 963 (Wash. 2006) (Washington's Defense of Marriage Act does not violate the state constitution)
  • Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) (New York State Constitution does not require that marriage be extended to same-sex couples)
  • Langan v. St. Vincent's Hospital, 802 N.Y.S.2d 476 (App. Div. 2005), review denied, 850 N.E.2d 672 (N.Y. 2006) (denying survivor partner in Vermont officiated Civil Union standing as a "spouse" for purposes of New York's wrongful death statute)
  • Conaway v. Deane, 932 A.2d 571 (Md. 2007) (upholding state law defining marriage as between a man and a woman)
  • Martinez v. County of Monroe, 850 N.Y.S.2d 740 (App. Div. 2008). (The court ruled unanimously that because New York legally recognizes out-of-state marriages of opposite-sex couples, it must do the same for same-sex couples. The county was refused leave to appeal on a technicality.[259])
  • In re Marriage Cases, 183 P.3d 384 (Cal. 2008). (The court ruled that limiting marriage to opposite-sex couples is invalid under the equal protection clause of the California Constitution, and that full marriage rights, not merely domestic partnership, must be offered to same-sex couples.);[260]
  • Strauss v. Horton, 207 P.3d 48 (Cal. 2009). (holding that Proposition 8 was validly adopted, but that marriages contracted before its adoption remain valid)[261]
  • Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). (Barring same-sex couples from marriage, the court unanimously ruled, violates the equal protection provisions of the Iowa Constitution. Equal protection requires full marriage, rather than civil unions or some other substitute, for same-sex couples)

2010s[edit]

  • Gill v. Office of Personnel Management (2009–2013), Section 3 of the federal Defense of Marriage Act is found unconstitutional in U.S. district court. This ruling is affirmed by the First Circuit Court of Appeals. Implementation stayed pending Windsor (see below) which ultimately resolves this case by finding Section 3 unconstitutional; hence Gill is dismissed.
  • Massachusetts v. United States Department of Health and Human Services (2009-2013), Decided alongside Gill (above). Same outcome.
  • Port v. Cowan (2010–2012), Maryland must recognize valid out-of-state same-sex marriages under doctrine of comity.[262]
  • Hollingsworth v. Perry (2009–2013), California's proposition banning same-sex marriage is found unconstitutional in U.S. district court, Perry v. Schwarzenegger. Proposition backers appeal to the Ninth Circuit Court of Appeals, where they are found to have standing, but the district court's finding of unconstitutionality is narrowly upheld, Perry v. Brown. U.S. Supreme Court finds proposition backers lack standing, dismisses appeal, instructs the Ninth Circuit to vacate the appeal below, leaving the district court ruling intact.[263]
  • Windsor v. United States (2010–2013) Section 3 of the federal Defense of Marriage Act is found unconstitutional in U.S. district court. This ruling is affirmed by the Second Circuit Court of Appeals, and after granting the petition of certiorari, affirmed by the U.S. Supreme Court. The U.S. government began implementing the decision the same week.[264][265]
  • Golinski v. Office of Personnel Management (2010–2013), Section 3 of the federal Defense of Marriage Act is found unconstitutional in U.S. district court, and that homosexuality is a quasi-suspect classification, meaning that discrimination in legislation such as the Act must substantially relate to an important government interest ("intermediate scrutiny"). On appeal case is held in abeyance pending the decision of the U.S. Supreme Court in Windsor. Since Windsor finds the same Section 3 unconstitutional, the appeal is ultimately ordered dismissed by the Ninth Circuit Court of Appeals.
  • Garden State Equality v. Dow (2011–2013), New Jersey's civil unions violate due process guarantees; denying same-sex marriage ruled unconstitutional in state superior court. The N.J. Supreme Court refuses to stay the ruling; and ultimately the state defendants drop their appeal.
  • Griego v. Oliver (2013), New Mexico's constitutional protections require marriage to be extended to same-sex couples in this N.M. Supreme Court ruling.

Presently in litigation[edit]

U.S. Court of Appeals cases[edit]

Fourth Circuit[edit]
  • Bostic marriage case (2013–present), Virginia's ban on same-sex marriage ruled unconstitutional in U.S. district court. Bostic v. Rainey. Ruling stayed pending conclusion of appeal. Restyled as Bostic v. Schaefer in the Fourth Circuit Court of Appeals, case number 14-1167, with oral argument tentatively set for the week of May 12, 2014.[266][267]
Fifth Circuit[edit]
  • De Leon v. Perry (2013–present), Texas same-sex marriage case, preliminary injunction granted in U.S. district court, February 26, 2014. The court reasoned that: "Plaintiffs have shown a likelihood of success on the merits, i.e. that [Texas' ban on same-sex marriage is unconstitutional; have established that continued enforcement ... would cause them irreparable harm." The district judge issued a stay during the state's interlocutory appeal to the Fifth Circuit Court of Appeals.[268]
Sixth Circuit[edit]

All four states under the jurisdiction of the U.S. Court of Appeals for the Sixth Circuit have a same-sex marriage case currently under appeal in that court:

  • DeBoer v. Snyder (2012–present), Michigan's ban on same-sex marriage ruled unconstitutional in U.S. district court. Permanent injunction against enforcement of same-sex marriage bans ordered March 21, 2014. Appeal filed in the Sixth Circuit, case number 14-1341. Order stayed indefinitely, i.e. until appeals have been concluded, and expedited appeal ordered on a 2-1 appeal panel vote. On April 8, 2014, the Sixth Circuit directed counsel for the same-sex couples to respond to the state's petition for an initial en banc hearing in two weeks.[269]
  • Obergefell marriage case (2013–present), Ohio's ban on same-sex marriage is found unconstitutional in U.S. district court, for the limited purpose of issuing death certificates, Obergefell v. Wymyslo, 962 F. Supp. 2d 968. Under appeal in the Sixth Circuit, Obergefell v. Himes, case number 14-3057.
  • Bourke v. Beshear (2013–present), Kentucky's refusal to recognize same-sex marriages from other jurisdictions ruled unconstitutional in U.S. district court, order stayed during appeal. Appeal is underway in the Sixth Circuit, case number 14-5291.
  • Tanko v. Haslam (2013–present), Tennessee same-sex marriage case, preliminary injunction granted in U.S. district court, March 14, 2014. The injunction forces Tennessee to recognize the three plaintiff same-sex couples' out-of-state marriages until the court disposes of the case; it also indicates that the couples are likely to succeed on the merits of their case. The judge denied Tennessee's motion to stay the injunction, reasoning that unlike Kitchen v. Herbert, where the U.S. Supreme Court granted a stay, this injunction covers only three couples and not the entire state. Appeal is underway in the Sixth Circuit, case number 14-5297.

Each case is currently being briefed before the court. The briefing schedule for DeBoer v. Snyder, Bourke v. Beshear, and Tanko v. Haslam all mirror each other, with each respective state's final brief due June 26, 2014. Obergefell v. Himes follows a slightly earlier schedule, with the last brief due May 30, 2014. Michigan officials want all sixteen (16) judges on the Sixth Circuit (as opposed to a random three-judge panel, the standard procedure) to initially hear it's case, DeBoer. If such hearing en banc is granted, any ruling issued would be binding on the entire Sixth Circuit and take precedence over the other same-sex marriage cases pending in the circuit.[270][271]

Ninth Circuit[edit]
  • Jackson v. Abercrombie (2011–present), Hawaii's denial of marriage to same-sex couples upheld in district court. As this was a pre-Windsor case, the court found Baker as controlling, and rejected plaintiffs' due process and equal protection claims. On appeal to the Ninth Circuit Court of Appeals, case number 12-16995. Hawaii has since enacted same-sex marriage legislatively.[272][273][274]
  • Sevcik v. Sandoval (2012–present), Nevada's denial of marriage to same-sex couples upheld in district court. Ruling appealed to the Ninth Circuit Court of Appeals, case number 12-17668. The district judge found that any challenges are precluded by Baker, and if not, the discrimination described merits only rational basis review, and that "the protection of the traditional institution of marriage ... is a legitimate state interest." As this case was decided before Windsor, and since "rational basis review" in discrimination cases is no longer valid law in the Ninth Circuit, Nevada has decided to no longer defend this case.[275][276]
Tenth Circuit[edit]
  • Bishop v. Smith (2004–present), Oklahoma's ban on same-sex marriage ruled unconstitutional in U.S. district court. Ruling stayed pending resolution of Kitchen v. Herbert (see below). Appeal was heard by the same panel of judges as Kitchen in the Tenth Circuit, but with separate briefing and oral argument on April 17, 2014, case number 14-5003 and 14-5006.[277][278]
  • Kitchen v. Herbert (2013–present), Utah's ban on same-sex marriage ruled unconstitutional in U.S. district court. Ruling stayed by U.S. Supreme Court until resolution of appeals, Kitchen v. Herbert, 134 S.Ct. 893 (January 6, 2014). Under appeal in the Tenth Circuit Court of Appeals, case number 13-4178, with oral arguments held on April 10, 2014.[279]

U.S. district court cases[edit]

  • Fisher-Borne v. Smith (2012–present), North Carolina same-sex marriage case pending in U.S. district court. This was originally a case dealing with second-parent adoptions; following the decision in Windsor, the case was amended to allow consideration of same-sex marriage.
  • Harris v. Rainey (2013–present), Virginia case dealing with same-sex marriage in U.S. district court; certified as a class-action lawsuit on January 31, 2014. Two months later, proceedings were ordered stayed until Bostic, another Virginia same-sex marriage case pending in the U.S. Fourth Circuit Court of Appeals, is decided. The plaintiff same-sex couples in this case have been granted leave to intervene in Bostic as well.[280][281]
  • McGee v. Cole (2013–present), West Virginia same-sex marriage case survived a motion to dismiss in U.S. district court, with the court finding: "Doctrinal developments since Baker, however, do justify a finding that Baker is nonbinding."[282]
  • Geiger v. Kitzhaber (2013–present), and Rummell and West v. Kitzhaber (2013–present), Oregon same-sex marriage cases, consolidated and currently pending in U.S. district court in that state. The court is due to hear oral argument on motions for summary judgment in both, currently scheduled for April 23, 2014.
  • Whitewood v. Wolf (2013–present), Pennsylvania same-sex marriage case currently set for trial in U.S. district court in Harrisburg on June 9, 2014.
  • Palladino v. Corbett (2013–present), another Pennsylvania same-sex marriage case in U.S. district court in Philadelphia. The judge is currently ruling on pretrial motions, with oral arguments scheduled on May 28, 2014.
  • Latta v. Otter (2013–present), Idaho same-sex marriage case in U.S. district court. Both parties have asked for summary judgment, and a hearing on this matter is scheduled for May 5, 2014.
  • Jernigan v. Crane (2013-present), Arkansas same-sex marriage case in U.S. district court.
  • Love v. Beshear (2014–present), as Bourke v. Beshear (Kentucky, see Sixth Circuit above) was a final decision subject to appeal. The addition of plaintiffs on a related issue, denial of marriage licenses to in-state same-sex couples, required court-ordered restyling. Love v. Beshear will now continue in district court as to the state marriage license issue, while the out-of-state recognition issue is appealed. Briefing by the intervening in-state couples is due to conclude on May 28, 2014.[283]
  • Wolf v. Walker (2014–present), Wisconsin same-sex marriage case in U.S. district court on an expedited schedule. The court is currently ruling on motions, with trial scheduled for August 24–29, 2014.
  • Conde v. Rius (2014–present), Puerto Rico same-sex marriage case in U.S. district court. The suit was filed in late March 2014.[284]
  • Henry v. Himes (2014–present), Ohio same-sex marriage case, in the same U.S. district court and before the same judge as Obergefell (see above). Here, a case to seek the names of same-sex parents legally married out-of-state on birth certificates was amended to overturn Ohio's ban on same-sex marriage. On April 14, 2014, the U.S. district judge in the case declared: "The record before the Court, which includes the judicially-noticed record in Obergefell, is staggeringly devoid of any legitimate justification for the State’s ongoing arbitrary discrimination on the basis of sexual orientation, and, therefore, Ohio’s marriage recognition bans are facially unconstitutional and unenforceable under any circumstances" (emphasis omitted). The judge noted that while Ohio must recognize out-of-state same-sex unions under his rulings, Ohio need not perform same-sex marriage. The order is stayed pending the judge's briefing by both parties and a hearing on a longer stay, or conversely, immediate application.[12]
  • Baskin v. Bogan (2014–present), Indiana same-sex marriage case pending in U.S. district court. On April 10, 2014, the court granted an emergency order directing Indiana to immediately recognize the out-of-state same-sex marriage of one plaintiff couple, since one partner is terminally ill.

State court cases[edit]

  • Commonwealth v. Haines (2013–present), This Pennsylvania same-sex marriage case is before the Pa. Supreme Court.
  • Brinkman v. Long (2013–present) and McDaniel-Miccio v. Hickenlooper (2014–present), two Colorado same-sex marriage cases underway in state district court. A motion before the court seeks to combine the two cases, and written motions for summary judgment are due on May 2, 2014. A court hearing is scheduled for June 12, 2014.[285]

See also[edit]

Legislation[edit]

Supporting organizations[edit]

Opposing organizations[edit]

Notes[edit]

  1. ^ These states are California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, and Washington.[1]
  2. ^ Cheyenne and Arapaho Tribes, Confederated Tribes of the Colville Reservation, Coquille, Little Traverse Bay Bands of Odawa Indians, Pokagon Band of Potawatomi Indians, Santa Ysabel Tribe, Leech Lake Band of Ojibwe and Suquamish
  3. ^ Alabama, Alaska, Arkansas, California, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin. See Same-sex marriage legislation in the United States#Attempts to establish same-sex unions via initiative or statewide referendum

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