Same-sex marriage legislation in the United States
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- For more comprehensive descriptions broken down by state see the article, Same-sex marriage law in the United States by state.
In response to court action in a number of states, the United States federal government and a number of state legislatures passed or attempted to pass legislation either prohibiting or allowing some form of same-sex marriage or union.
Contents |
[edit] Federal level
In 1996, the United States Congress passed and President Bill Clinton signed Public Law 106-199, the Defense of Marriage Act. The Act defines "marriage" and "spouse" for purposes of federal law.
The impact of the second part of the Act is less clear. Traditionally, states have been allowed to regulate the marital status of their own citizens. A narrow interpretation of the Act only codifies this policy. The Act was arguably passed out of concern that same-sex couples from all over the U.S. would fly to Hawaii, get married, and demand recognition in their home states (although Hawaii ultimately never allowed same-sex marriage).
A broad reading of the Act would allow states to refuse to recognize same-sex marriages of non-citizens, as well. For example, a same-sex couple from Massachusetts might get married in Massachusetts, and later move to another state, where the state would have no obligation to recognize the marriage. The Act may also mean that the state could refuse to recognize the marriage even if the couple were only passing through transiently (relevant, for example, in emergency medical decision-making), and not moving permanently. Either of these broader readings would be an exception to the Full Faith and Credit Clause.
Proponents of equal marriage rights for same-sex couples observe that there are over 1,138 federal laws in which marital status is a factor, as well as state and private benefits (family memberships, discounts, etc.) which are denied same-sex couples by excluding them from participating in marriage. A legal denial of federal rights or benefits, they say, directly contradicts the 14th Amendment of the US Constitution which provides for equal protection and substantive due process under the law: rights conferred to one person cannot be denied to another.
In the 2003 case Lawrence v. Texas which came before the Supreme Court of the United States, the court held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. Many proponents of same-sex marriage believe that this ruling, especially when combined with the 1967 ruling in Loving v. Virginia that eliminated anti-miscegenation laws, paves the way for a subsequent decision invalidating state laws prohibiting same-sex marriage. However, these proponents often do not mention, or are not aware of, the United States Supreme Court's summary affirmance in the Minnesota case of Baker v. Nelson 409 U.S. 810. This decision, binding on all lower federal courts, clearly distinguishes Loving, and establishes the right of the individual States to uphold traditional opposite-sex marriage.
Challenges to DOMA have already been rejected by several federal courts, including a decision by Judge James S. Moody in the case of Wilson v. Ake.
Some opponents of same-sex marriage, wanting to ensure that the constitutionality of such laws cannot be challenged in the courts under the Full Faith and Credit clause, Equal Protection Clause or Due process clause of the United States Constitution, have proposed a Federal Marriage Amendment to the constitution that would prevent the federal government or any state from providing a marriage or the legal incidents thereof to a same-sex couple, whether through the legislature or the courts.
The amendment was debated in the United States Senate, but on July 14, 2004, a procedural motion to end debate failed by a wider-than-expected margin of 48 votes to 50. This effectively prevented the amendment from facing a full Senate vote.
Also in 2003, lesbian comedian Rosie O'Donnell's court case with ex-colleagues raised another new issue when O'Donnell's life partner, Kelli, was forced to testify against O'Donnell. Under United States law, spouses cannot be forced to testify against each other; but because same-sex couples are not allowed to marry, they are denied this courtroom right, part of a long list of benefits of marriage in the United States. They married on February 26, 2004 in San Francisco, but this was later nullified by the California Supreme Court.
As of April 2006, California same-sex couple Arthur Smelt and Christopher Hammer had a marriage-rights case pending in the federal Ninth Circuit Court of Appeals. Gay-rights groups including the Lambda Legal Defense and Education Fund and the American Civil Liberties Union did not support the lawsuit, on the grounds that it is likely to lose in the Supreme Court and set an unfavorable precedent. The Court eventually tossed out the suit in the spring of 2006, saying that the couples must wait for a ruling by the Appeals Court in California.[1]
[edit] State level
[edit] Efforts to enable same-sex unions
Votes by state legislatures to recognize various types of same-sex unions, sorted by date:
| State | Date | Type of same-sex union | Upper House | Lower house | Governor | Final outcome |
||
|---|---|---|---|---|---|---|---|---|
| Yes | No | Yes | No | |||||
 District of Columbia |
June 1992 [1] | Domestic Partnership (limited) | Passed [2] | Signed [3] |  Yes |
|||
 California |
September 1994 | Domestic Partnership (limited) [4] | 21 | 17 | 41 | 26 | Vetoed |  No [5] |
 Hawaii |
March 1996 | Domestic Partnership [6] | 14 | 11 | Failed | - | No |
|
| Hawaii |
June 1997 | Reciprocal Beneficiary Relationship | 24 | 7 | 43 | 27 | Signed | Yes |
| California |
September 1999 | Domestic Partnership (limited) | 22 | 14 | 41 | 36 | Signed | Yes [7] |
 Vermont |
April 2000 | Civil Union | 19 | 11 | 79 | 68 | Signed | Yes |
| California |
October 2001 | Domestic Partnership (expansion) | 23 | 11 | 41 | 32 | Signed | Yes [8] |
| California |
September 2003 | Domestic Partnership (expansion) | 23 | 14 | 41 | 33 | Signed | Yes [9] |
 New Jersey |
January 2004 | Domestic Partnership (limited) | 23 | 9 | 41 | 28 | Signed | Yes |
 Maine |
April 2004 | Domestic Partnership (limited) | 19 | 14 | 84 | 58 | Signed | Yes |
 Utah |
February 2005 | Reciprocal Beneficiary Relationship | 10 | 18 | - | - | - | No |
 Connecticut |
April 2005 | Civil Union | 27 | 9 | 85 | 63 | Signed | Yes |
 Maryland |
May 2005 | Domestic Partnership (limited) | 31 | 16 | 83 | 50 | Vetoed | No [10] |
| California |
June 2005 | Same-Sex Marriage | - | - | 37 | 36 | - | No [11] |
 Oregon |
July 2005 | Civil Union | 19 | 10 | - | - | - | No [12] |
| California |
September 2005 | Same-Sex Marriage | 21 | 15 | 41 | 35 | Vetoed | No [13] |
| District of Columbia |
April 2006 | Domestic Partnership (expansion) | Passed [14] | Signed [15] | Yes |
|||
 Colorado |
November 2006 | Domestic Partnership | Statewide Voter Referendum | No |
||||
| New Jersey |
December 2006 | Civil Union | 23 | 12 | 56 | 19 | Signed | Yes |
 Washington |
April 2007 | Domestic Partnership (limited) | 28 | 19 | 63 | 35 | Signed | Yes |
| Oregon |
May 2007 | Domestic Partnership | 21 | 9 | 34 | 26 | Signed | Yes |
 New Hampshire |
May 2007 | Civil Union | 14 | 10 | 243 | 129 | Signed | Yes |
 New York |
June 2007 | Same-Sex Marriage | - | - | 85 | 61 | - | No |
| California |
September 2007 | Same-Sex Marriage | 22 | 15 | 42 | 34 | Vetoed | No [16] |
 New Mexico |
January 2008 | Domestic Partnership | - | - | 33 | 31 | - | No |
| Washington |
March 2008 | Domestic Partnership (expansion) | 29 | 20 | 62 | 32 | Signed | Yes |
| Maryland |
May 2008 | Domestic Partnership (limited) | 39 | 19 | 44 | 39 | Signed | Yes |
| District of Columbia |
May 2008 | Domestic Partnership (expansion) | Passed | Signed | Yes |
|||
| New Mexico |
February 2009 | Domestic Partnership | 17 | 25 | - | - | - | No [17] |
| Hawaii |
March 2009 | Civil Union | - | - | 33 | 17 | - | No |
| Vermont |
April 2009 | Same-Sex Marriage | 23 | 5 | 100 | 49 | Vetoed, Overridden | Yes |
| Colorado |
April 2009 | Reciprocal Beneficiary Relationship | 23 | 10 | 41 | 24 | Signed | Yes |
| Connecticut |
April 2009 | Same-Sex Marriage | 28 | 7 | 100 | 44 | Signed | Yes |
| Maine |
May 2009 | Same-Sex Marriage | 21 | 14 | 89 | 58 | Signed | Yes |
| District of Columbia |
May 2009 | Same-Sex Marriage (recognition only) | Passed | Signed | Yes |
|||
| Washington |
May 2009 | Domestic Partnership (expansion) | 30 | 18 | 62 | 35 | Signed | Yes |
 Nevada |
May 2009 | Domestic Partnership | 14 | 7 | 28 | 14 | Vetoed, Overridden | Yes |
| New Hampshire |
June 2009 | Same-Sex Marriage | 14 | 10 | 198 | 176 | Signed | Yes |
 Wisconsin |
June 2009 | Domestic Partnership (limited) | 17 | 16 | 50 | 48 | Signed | Yes |
 Rhode Island |
July 2009 | Domestic Partnership (limited) [18] | 35 | 0 | Pending | - | - | |
 New Jersey |
July 2009 | Same-Sex Marriage | - | - | Pending | - | - | |
 Guam |
July 2009 | Civil Union | Pending | - | - | |||
| Rhode Island |
July 2009 | Same-Sex Marriage[2] | Pending | - | - | - | ||
| New York |
September 2009 | Same-Sex Marriage | Vote delayed until early September[3] | 89 | 52 | - | - | |
 Pennsylvania |
Fall 2009 | Same-Sex Marriage[4] | Pending until Fall[5] | - | - | - | - | |
- ^ Granted limited rights.
- ^ Expanded rights included.
- ^ Gave domestic partnerships legal rights of married couples.
- ^ Maryland Governor vetoed legislation; a veto override would require two-thirds support.
- ^ The vote failed to receive the absolute majority (41 votes) required to pass.
- ^ The bill failed to come to a floor vote in the House of Representatives.
- ^ California Governor vetoed legislation; a veto override would require two-thirds support.
- ^ California Governor vetoed legislation; a veto override would require two-thirds support.
- ^ Passed by the City Council; Signed by the Mayor of the District of Columbia in 1992 with delayed implementation until 2002 due to action taken by the U.S. Congress during the Congressional Review Period. (See Recognition of same-sex unions in the District of Columbia).
- ^ Passed by the City Council; Signed by the Mayor of the District of Columbia with no delay action taken by the U.S. Congress during the Congressional Review Period.
- ^ Failed state Senate vote.
- ^ The Hawaii Civil Union Bill 2009 failed by a tie vote in Committee.
- ^ Vermont Governor vetoed legislation; the veto override required two-thirds support.
- ^ Nevada Governor vetoed legislation; the veto override required two-thirds support.
[edit] Efforts to define marriage by constitutional amendment
The following table shows all popular vote results regarding state constitutional amendments concerning same-sex marriage, and in some cases civil unions and domestic partnerships. The Hawaii amendment is different in that it granted the legislature authority to "reserve marriage to opposite-sex couples" (which the legislature had already done).
| State | Initiative | Ban on | Date | Yes vote |
No vote |
Final outcome |
|---|---|---|---|---|---|---|
| 1998: | ||||||
 Alaska |
Ballot Measure 2 | Marriage | November 1998 | 68% (152,965) | 32% (71,631) | Yes |
| Hawaii |
Constitutional Amendment 2 | Marriage ban permitted |
November 1998 | 69% (285,384) | 31% (117,827) | Yes [19] |
| 2000: | ||||||
 Nebraska |
Initiative Measure 416 | Marriage and civil union and domestic partnership |
November 2000 | 70% (450,073) | 30% (189,555) | Yes [20] |
| 2002: | ||||||
| Nevada |
Question 2 | Marriage | November 2002 | 67% (337,183) | 33% (164,555) | Yes |
| 2004: | ||||||
 Arkansas |
Constitutional Amendment 3 | Marriage and civil union |
November 2004 | 75% (753,770) | 25% (251,914) | Yes |
.svg){kind=small} Georgia |
Constitutional Amendment 1 | Marriage and civil union |
November 2004 | 76% (2,454,912) | 24% (768,703) | Yes [21] |
 Kentucky |
Constitutional Amendment 1 | Marriage and civil union |
November 2004 | 75% (1,222,125) | 25% (417,097) | Yes |
 Louisiana |
Constitutional Amendment 1 | Marriage and civil union |
September 2004 | 78% (618,928) | 22% (177,103) | Yes [22] |
 Michigan |
State Proposal - 04-2 | Marriage and civil union and domestic partnership |
November 2004 | 59% (2,698,077) | 41% (1,904,319) | Yes |
 Mississippi |
Amendment 1 | Marriage | November 2004 | 86% (957,104) | 14% (155,648) | Yes |
 Missouri |
Constitutional Amendment 2 | Marriage | August 2004 | 71% (1,055,771) | 29% (439,529) | Yes |
 Montana |
Initiative 96 | Marriage | November 2004 | 67% (295,070) | 33% (148,263) | Yes |
 North Dakota |
Constitutional Measure 1 | Marriage and civil union |
November 2004 | 73% (223,572) | 27% (81,716) | Yes |
 Ohio |
State Issue 1 | Marriage and civil union |
November 2004 | 62% (3,329,335) | 38% (2,065,462) | Yes |
 Oklahoma |
State Question 711 | Marriage and civil union |
November 2004 | 76% (1,075,216) | 24% (347,303) | Yes |
| Oregon |
Measure 36 | Marriage | November 2004 | 57% (1,028,546) | 43% (787,556) | Yes |
| Utah |
Constitutional Amendment 3 | Marriage and civil union |
November 2004 | 66% (593,297) | 34% (307,488) | Yes |
| 2005: | ||||||
 Kansas |
Proposed amendment 1 | Marriage and civil union |
April 2005 | 70% (414,106) | 30% (178,018) | Yes |
 Texas |
Proposition 2 | Marriage and civil union |
November 2005 | 76% (1,718,513) | 24% (536,052) | Yes |
| 2006: | ||||||
 Alabama |
Sanctity of Marriage Amendment | Marriage and civil union |
June 2006 | 81% (734,746) | 19% (170,399) | Yes |
 Arizona |
Proposition 107 | Marriage and civil union |
November 2006 | 48% (721,489) | 52% (775,498) | No |
| Colorado |
Amendment 43 | Marriage | November 2006 | 56% (768,700) | 44% (612,155) | Yes |
 Idaho |
Amendment 2 | Marriage and civil union |
November 2006 | 63% (281,823) | 37% (163,191) | Yes |
 South Carolina |
Amendment 1 | Marriage and civil union |
November 2006 | 78% (818,894) | 22% (230,674) | Yes |
 South Dakota |
Amendment C | Marriage and civil union and domestic partnership |
November 2006 | 52% (172,237) | 48% (160,756) | Yes |
 Tennessee |
Amendment 1 | Marriage | November 2006 | 81% (1,417,315) | 19% (326,335) | Yes |
 Virginia |
Marshall-Newman Amendment | Marriage and civil union and domestic partnership |
November 2006 | 57% (1,325,668) | 43% (1,003,967) | Yes |
| Wisconsin |
Referendum 1 | Marriage and civil union |
November 2006 | 59% (1,260,554) | 41% (861,554) | Yes |
| 2008: | ||||||
| Arizona |
Propositions 102 | Marriage | November 2008 | 56% (1,258,355) | 44% (980,753) | Yes |
| California |
Proposition 8 | Marriage | November 2008 | 52% (7,001,084) | 48% (6,401,482) | Yes |
 Florida |
Amendment 2 | Marriage and civil union |
November 2008 | 62% (4,890,883) | 38% (3,008,026) | Yes |
[edit] Recent or pending efforts to define marriage through constitutional amendment
| State | Description | Outcome |
|---|---|---|
 Indiana |
The Indiana State Senate Republican Caucus on February 18, 2009, voted to not consider a resolution that would have proposed an amendment.[6] | Not considered |
 Iowa |
A bill failed to advance and was not considered [23]. | Not considered |
| Maryland |
A bill failed to advance as of February 2009.[7] |  Dormant |
 North Carolina |
A bill was sponsored in February 2009, though failed to make it through legislative committee. [24] [8] | Failed in committee |
 Wyoming |
In February 2009, a bill was voted down.[9] | Voted down |
 West Virginia |
A bill was defeated in March 2009.[10] | Voted down |
 Minnesota |
A bill was sponsored in 2009, but failed to be brought up for a vote.[11] | Not considered |
 Delaware |
A bill was voted down in March 2009. [25]. | Voted down |
| Washington |
A bill was introduced in 2009, though as of July 2009, has failed to advance.[12] | Dormant |
 Puerto Rico |
A bill that would place a constitutional amendment on the ballot that would ban same-sex marriage was voted down in June 2009. [26] | Voted down |
| Pennsylvania |
The state Senate committee is considering a 2009 amendment proposal introduce in June 2009 [27] | |
| California |
Opponents to the Proposition 8 amendment defining marriage as 'one man one woman' are gathering signatures to put a repeal amendment into the constitution. | |
| Michigan |
A bill that would place a repeal (and establish) of the same-sex marriage ban is currently pending before the legislature. [28] | |
| Colorado |
A signature drive is underway to repeal the same-sex marriage ban and legalize same-sex marriage in the state. [29] | |
 Illinois |
Protect Marriage Illinois stated its intent to collect the necessary number of petition signatures to have an advisory measure calling for a constitutional amendment appear on the 2010 general election ballot.[13] |
- ^ Does not explicitly define marriage, but allows the legislature to define marriage.
- ^ Ban declared unconstitutional by Judge Joseph Bataillon, Chief Judge of the U.S. District Court for the District of Nebraska.[14] The ruling was appealed to the Eighth U.S. Circuit Court of Appeals based in St. Louis.[15] That Court issued a ruling that re-instated the ban, declaring in part that it was a legitimate state interest.[16]
- ^ On October 6, 2004 a Louisiana district judge tossed out the approved amendment saying it addressed two subjects: marriage and civil unions. Shortly after, the Louisiana Supreme Court unanimously overturned that ruling and found the amendment valid.[17]
- ^ Ban declared unconstitutional on May 16, 2006 by Fulton County Superior Court Judge Constance C. Russell, who said it violated the single-subject rule in Georgia's constitution. Governor Sonny Perdue said he was disappointed by the decision, which he said ran contrary to the voice of Georgia voters. The following day, the ruling was appealed to the Supreme Court of Georgia. On July 6, 2006 the Georgia Supreme Court ruled that the ban did not violate the single-subject rule.[18][19]
[edit] Efforts to define marriage by statutory initiative
The following consists of votes by statutory initiatives that ban same-sex marriage and/or civil unions and domestic partnerships:
| State | Date | Yes vote |
No vote |
Description | Final outcome |
|---|---|---|---|---|---|
| West: | |||||
| California |
March 2000 | 61% (4,618,673) | 39% (2,909,370) | Proposition 22. Amend the Family Code to say: Only marriage between a man and a woman is valid or recognized in California.[20][30] | Yes but ruled unconstitutional [31] |
| Colorado |
November 2006 | 47% (641,443) | 53% (727,433) | Colorado Referendum I (2006) : To allow same-sex couples to register as "domestic partners".[21] |
No |
- ^ There is a debate as to whether the adoption of Prop 22 only prohibited California from recognizing same-sex marriages performed in other states.
- ^ In March 2005, Judge Richard Kramer ruled there appeared to be no rational state compelling interest in limiting marriage to heterosexual couples. His ruling was appealed to the California Court of Appeal for the 1st District, which upheld Proposition 22 on October 5, 2006. The Supreme Court of California ruled on May 15, 2008, that Proposition 22 is unconstitutional and it was struck down by the state's highest court.
[edit] General
[edit] United States
- Same-sex marriage in the United States
- Same-sex marriage in the United States public opinion
- Same-sex marriage law in the United States by state
- Same-sex marriage status in the United States by state
- List of benefits of marriage in the United States
- Defense of Marriage Act
- Marriage Protection Act
- Defense of marriage amendment
- Federal Marriage Amendment
- Domestic partnerships in the United States
- History of civil marriage in the U.S.
[edit] See also
[edit] References
- ^ Kravets, David (2006-04-02). "Two paths toward one goal: same-sex marriage". Associated Press (The Boston Globe). http://www.boston.com/news/local/connecticut/articles/2006/04/02/two_paths_toward_one_goal_same_sex_marriage/. Retrieved on 2009-02-15.
- ^ http://www.necn.com/Boston/New-England/2009/06/05/Gay-marriage-debate-heats-up/1244236681.html
- ^ http://www.thehindu.com/2009/07/12/stories/2009071256351400.htm
- ^ http://cumberlink.com/articles/2009/06/14/news/local/doc4a349052762db249620833.txt
- ^ http://epgn.com/pages/full_story/push?article-PA+marriage+bill+gets+another+cosponsor%20&id=2918792-PA+marriage+bill+gets+another+cosponsor&instance=2nd_top_story
- ^ Johnson, Chris (2009-02-18). "Anti-Marriage Amendment Stopped in Indiana Legislature". Human Rights Campaign. http://www.hrcbackstory.org/2009/02/anti-marriage-amendment-stopped-in-indiana-legislature/. Retrieved on 2009-02-26.
- ^ Smitherman, Laura (2009-02-03). "Senator suggests deal on death penalty measure". The Baltimore Sun. http://www.baltimoresun.com/news/bal-md.penalty03feb03,3,4741490.story. Retrieved on 2009-02-14.
- ^ Boniti, Loretta (2009-02-24). "NC lawmaker proposes ban on gay marriage". News 14 Carolina. http://news14.com/content/politics/605506/nc-lawmaker-proposes-ban-on-gay-marriage/Default.aspx. Retrieved on 2009-02-26.
- ^ "Wyo. House kills gay marriage bill". Associated Press (KIFI-TV). 2009-02-06. http://www.localnews8.com/global/story.asp?s=9802795&ClientType=Printable. Retrieved on 2009-02-07.
- ^ "WVa House rejects anti-gay marriage gambit". Associated Press (Charleston Daily Mail). 2009-03-30. http://www.dailymail.com/News/200903300289. Retrieved on 2009-03-31.
- ^ Duchschere, Kevin; von Sternberg, Bob (2009-03-18). "Gay marriage ban is back on agenda at Capitol". Star Tribune. http://www.startribune.com/politics/state/41366017.html. Retrieved on 2009-03-31.
- ^ "HJR 4204 - 2009-10". Washington State Legislature. 2009-01-30. http://apps.leg.wa.gov/billinfo/Summary.aspx?bill=4204&year=2009. Retrieved on 2009-02-15.
- ^ Saunders, Rhys (2008-11-16). "Gay marriage foes to try again in Illinois". The State Journal-Register. http://www.sj-r.com/homepage/x1772950620/Gay-marriage-foes-to-try-again-in-Illinois. Retrieved on 2009-02-14.
- ^ Neb. gay marriage ban struck down - Politics - MSNBC.com
- ^ LJWorld.com / Appeal filed to restore Nebraska’s prohibition of same-sex marriage
- ^ Washington Post
- ^ ADF: Marriage unanimously affirmed in Louisiana - Alliance Defense Fund - Defending Our First Liberty
- ^ WIStv.com Columbia, SC: Georgia governor vows special session if gay marriage appeal slows
- ^ http://www.cnn.com/2006/LAW/07/06/MF.gay.marriage.ap/
- ^ Full Results
- ^ Colorado Referendum I full results
[edit] External links
- The Money Behind the 2004 Marriage Amendments -- National Institute on Money in State Politics
- The Money Behind the 2006 Marriage Amendments -- National Institute on Money in State Politics
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