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Same-sex marriage in the United States

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Part of the LGBT rights series
Marriage

Recognized

Civil unions or registered partnerships but not marriage
Minimal recognition
See also
Notes
  1. ^ a b Performed in the Netherlands proper (including the Caribbean Netherlands), as well as in Aruba and Curaçao. May be registered in Sint Maarten in such cases, but the rights of marriage are not guaranteed.
  2. ^ Neither performed nor recognized in Niue, Tokelau, or the Cook Islands.
  3. ^ Neither performed nor recognized in six British Overseas Territories.
  4. ^ a b Neither performed nor recognized in some tribal nations. Recognized but not performed in several other tribal nations and American Samoa.
  5. ^ Registered foreign marriages confer all marriage rights. Domestic common-law marriages confer most rights of marriage. Domestic civil marriage recognized by some cities.
  6. ^ a b c d e The Coman v. Romania ruling of the European Court of Justice obliges the state to provide residency rights for the foreign spouses of EU citizens. Some member states, including Romania, do not follow the ruling.
  7. ^ A "declaration of family relationship" is available in several of Cambodia's communes which may be useful in matters such as housing, but is not legally binding.
  8. ^ Guardianship agreements, conferring some limited legal benefits, including decisions about medical and personal care.
  9. ^ Inheritance, guardianship rights, and residency rights for foreign spouses of legal residents.
  10. ^ Courts have recognised guru–shishya, nata pratha or maitri karar–type contractual relationships, but they are not legally binding.
  11. ^ Some cities and prefectures issue partnership certificates, but they are not legally binding.
  12. ^ Marriages conducted abroad between a Namibian national and a foreign spouse recognized for residency rights.
  13. ^ Hospital visitation rights through a "legal representative" status.
  1. ^ a b Not yet in effect.
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Same-sex marriage is legally recognized in some jurisdictions within the United States and by the federal government. Nineteen states,[a] the District of Columbia, and ten Native American tribal jurisdictions[b] issue marriage licenses to same-sex couples. Several hundreds to thousands of marriage licenses were issued to same-sex couples in Utah, Michigan, Arkansas, Wisconsin and Indiana between the time their bans were struck down by federal or state courts and when those rulings were stayed.

Since the U.S. Supreme Court struck down the law barring federal recognition of same-sex marriage in United States v. Windsor on June 26, 2013, U.S. district courts in thirteen states[c] and state courts in five states[d] have found that same-sex marriage bans violate the U.S. Constitution, while one U.S. district court[e] and one state court[f] have found that same-sex marriage bans do not violate the constitution. The U.S. Courts of Appeals for the Fourth, Seventh, and Tenth Circuits have affirmed the unconstitutionality of such bans. Additionally, a U.S. district court has ordered Ohio to recognize of same-sex marriages from other jurisdictions.[g] All but two of these rulings have been stayed. In Oregon and Pennsylvania, the state defendants did not appeal the district courts' rulings and their orders ended those states' bans on same-sex marriage.[h]

Some same-sex couples have, with varying degrees of success, sought court-ordered recognition of their marriages based on their specific circumstances. The Seventh Circuit and a U.S. district court have each required Indiana to recognize a marriage where one plaintiff is terminally ill.[22][23] A U.S. district court in Arizona has required the state to recognize one same-sex marriage for the purpose of issuing a death certificate.[24] A Florida state court has recognized an out-of state same-sex marriage to allow a widower to serve as executor of his spouse's estate.[25] Similar plaintiffs have appealed adverse decisions or had rulings in their favor stayed pending appeal in several states.[i]

While many jurisdictions have legalized same-sex marriage through court rulings, legislative action, and popular vote, three states prohibit same-sex marriage by statute and 28 prohibit it in their constitutions.[26]

The movement to obtain civil marriage rights and benefits for same-sex couples in the United States began in the 1970s,[27] but became increasingly prominent in U.S. politics following the 1993 Hawaii Supreme Court decision in Baehr v. Lewin that declared that state's prohibition to be unconstitutional.[28] 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.[29] During the 21st century, public support for same-sex marriage has grown considerably,[30][31] 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 marriage.[32] On November 6, 2012, Maine, Maryland, and Washington became the first states to legalize same-sex marriage through popular vote.

See also: Same-sex marriage legislation in the United States
Civil same-sex marriage ceremony being performed in San Francisco City Hall in June 2008.

Constitutional law: Marriage as a fundamental right

The United States Supreme Court has in at least 14 cases since 1888 ruled that marriage is a fundamental right. These cases are:[33]

  1. Maynard v. Hill, 125 U.S. 190 (1888) Marriage is "the most important relation in life" and "the foundation of the family and society, without which there would be neither civilization nor progress."
  2. Meyer v. Nebraska, 262 U.S. 390 (1923) The right "to marry, establish a home and bring up children" is a central part of liberty protected by the Due Process Clause.
  3. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) Marriage is "one of the basic civil rights of man" and "fundamental to the very existence and survival of the race."
  4. Griswold v. Connecticut, 381 U.S. 479 (1965) "We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions."
  5. Loving v. Virginia, 388 U.S. 1 (1967) "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."
  6. Boddie v. Connecticut, 401 U.S. 371 (1971) "[M]arriage involves interests of basic importance to our society" and is "a fundamental human relationship."
  7. Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974) "This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment."
  8. Moore v. City of East Cleveland, 431 U.S. 494 (1977) "[W]hen the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation."
  9. Carey v. Population Services International, 431 U.S. 678 (1977) "[I]t is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education."
  10. Zablocki v. Redhail, 434 U.S. 374 (1978) "[T]he right to marry is of fundamental importance for all individuals."
  11. Turner v. Safley, 482 U.S. 78 (1987) "[T]he decision to marry is a fundamental right" and an "expression[ ] of emotional support and public commitment."
  12. Planned Parenthood v. Casey, 505 U.S. 833 (1992) "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."
  13. M.L.B. v. S.L.J., 519 U.S. 102 (1996) "Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as 'of basic importance in our society,' rights sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect."
  14. Lawrence v. Texas, 539 U.S. 558 (2003) "[O]ur laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, and education. ... Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do."

Federal law

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 marital status, is determined in large measure 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 states, as was the case until 1967 with interracial marriage which some states banned by statute.

The Defense of Marriage Act (DOMA) was enacted in 1996. DOMA's Section 2 says that no state need recognize the legal validity of a same-sex relationship even if recognized as marriage by another state. It purports to relieve a state of its reciprocal obligation to honor the laws of other states as required by the Constitution's full faith and credit clause.[34] Even before DOMA, however, states sometimes refused to recognize a marriage from another jurisdiction if it was counter to its "strongly held public policies".[35] Most lawsuits that seek to require a state to recognize a marriage established in another jurisdiction argue on the basis of equal protection and due process, not the full faith and credit clause.[j]

DOMA's Section 3 defined marriage for the purposes of federal law as a union of one man and one woman.[38] It was challenged in the federal courts. 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 equal protection clause of the U.S. Constitution.[39][40] Beginning in 2010, eight federal courts found DOMA Section 3 unconstitutional on issues including bankruptcy, public employee benefits, estate taxes, and immigration.[41][42][43] On October 18, 2012, the Second Circuit Court of Appeals became the first court[44] 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.[45] Asked to consider several cases that found DOMA Section 3 unconstitutional, the U.S. Supreme Court ruled in Windsor on June 26, 2013, that Section 3 violated the Fifth Amendment.[46][k]

As a result of the Windsor decision, married same-sex couples–regardless of domicile–have tax benefits (including the ability to file joint income tax returns), military benefits, federal employment benefits for employees of the U.S Government and immigration benefits.[50][51][52][53] 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.[54][55] Likewise in June 2014, family medical leave benefits under the Family Medical Leave Act 1975 were extended to married same-sex couples in all of the U.S.[56][57] With respect to social security and veterans benefits, same-sex married couples who live in states where same-sex marriage is recognized are eligible for full benefits from the Veterans Affairs (VA) and the Social Security Administration (SSA). The VA and SSA can provide only limited benefits to married same-sex couples living in states where same-sex marriage isn't legal, with Congress required to amend federal law to rectify that inequity.[57][58][59]

The federal government has announced that it recognizes the marriages of same-sex couples who married in certain states in which same-sex marriage was legal for brief periods between the time a court order allowed such couples to marry and that court order was stayed, including Michigan and Utah. It has yet to take a position with respect to similar marriages in Arkansas, Indiana, and Wisconsin.[60]

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.[61]

In 1972, the U.S. Supreme Court declined an appeal in Baker v. Nelson, a same-sex marriage case from Minnesota, "for want of a substantial federal question."[62] The Baker precedent for many years closed the federal courts to legal advocacy on behalf of same-sex marriage rights. Since the Supreme Court decision in Windsor, however, most federal courts that have considered same-sex marriage cases have held that Baker is no longer binding precedent, because, as a district judge in Pennsylvania wrote in November 2013, "[t]he jurisprudence of equal protection and substantive due process has undergone what can only be characterized as a sea change since 1972".[63]

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 Senate, but was ultimately defeated in both houses of Congress.[64] 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 nationwide.[65]

State laws

Current status

Further information: Same-sex marriage law in the United States by state
Status of same-sex marriage in the United States
  Performed and recognized
  Recognized when performed elsewhere
  Recognized by state and federal governments, but not by tribal government
  (mixed jurisdiction; not performed by tribal government)
  (mixed jurisdiction; not performed or recognized by tribal government)

Prior to 2004, same-sex marriage was not performed in any U.S. jurisdiction. It has since been legalized in different jurisdictions through legislation, court rulings,[66] tribal council rulings,[67] and popular vote in statewide referenda.[68][69]

As of July 29, 2014, 19 states (California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington) and the District of Columbia routinely issue marriage licenses to same-sex couples.

Several U.S. Courts of Appeals have heard or are hearing same-sex marriage cases. The Fourth Circuit has affirmed that Virginia's ban on same-sex marriage is unconstitutional. The Seventh Circuit has affirmed the unconstitutionality of such bans in cases from Indiana and Wisconsin and the Tenth Circuit has done so in cases from Oklahoma and Utah. Appeals in all those cases await consideration by the U.S. Supreme Court. The Sixth Circuit heard arguments in cases from Kentucky, Michigan, Ohio, and Tennessee on August 6, 2014, and the Ninth Circuit heard appeals in cases from Hawaii, Idaho, and Nevada on September 8, 2014. The Fifth Circuit is currently briefing cases on appeal from U.S. district courts in Texas and Louisiana, and the Eleventh Circuit is briefing the appeal of a Florida case.

Colorado, Nevada, 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.

Early history

On May 18, 1970, two University of Minnesota gay student activists, Richard Baker and James Michael McConnell, applied for a marriage license in Minneapolis. The clerk of the Hennepin County District Court, Gerald Nelson, denied the request on the sole ground that the two were of the same sex.

The case was appealed to the Minnesota Supreme Court which, in 1971, ruled that Minnesota's laws prohibited marriages between same-sex partners and did not violate the federal constitution. Then, on October 10, 1972, the United States Supreme Court, declining to hear the case on appeal, issued a one-sentence order that said: "The appeal is dismissed for want of a substantial federal question."

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.[70] In 2003, the US Supreme Court struck down Texas' "Homosexual Conduct" law[71] in Lawrence v. Texas.[72] The ruling effectively nullified similar same-sex sodomy laws in Kansas, Oklahoma and Missouri along with broader sodomy laws in nine other states.[73]

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.[74] This resulted in the first same-sex marriages occurring within the Bay State on May 17, 2004,[75] making Massachusetts the first U.S. state to permit same-sex marriage within its borders.

On February 20, 2004, Sandoval County became 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.[76][77] 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.[78] (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.[79]

On August 4, 2010, a decision by the U.S. District Court in Perry v. Schwarzenegger ruled that Proposition 8 was unconstitutional.[80] 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.[81] 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,[82] after which same-sex marriage once again became legal in California.[83] 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".[84] Same-sex marriages resumed on June 28, 2013.[85]

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.[86] The following year, the state general assembly passed gender-neutral marriage legislation, which the state's Republican governor signed into law.[87]

In 2007, the Polk County District Court ruled in favor of six same-sex couples in Varnum v. Brien for the right to marry. On April 3, 2009, a unanimous Iowa Supreme Court upheld the lower court's ruling.[88] This decision was initially scheduled to take effect on April 24, but for administrative reasons the date was changed to April 27, when the licenses became available.[89]

On December 18, 2009, a same-sex marriage became legal when mayor Adrian Fenty signed a bill passed by the Council of the District of Columbia;[90] same-sex marriage licenses became available in Washington, D.C., on March 3, 2010.[91] The first same-sex marriages took place on March 9.

By 2009, New England became the center of an organized push to legalize same-sex marriage,[92] 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.[93] Nonetheless, the legislation was stayed pending a vote and never went into effect. It was repealed by referendum in November 2009.[66] On June 3, 2009, New Hampshire became the sixth state nationally to legalize same-sex marriage.[94]

2010s

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.[95] Nineteen states banned any legal recognition of same-sex unions that would be equivalent to civil marriage.[96] Voters approved 28 out of 30 popular referenda in which states asked voters to adopt a constitutional amendment or initiative defining marriage as the union of a man and a woman.[l] Arizonans voted down one such amendment in 2006,[97] but approved a different amendment to that effect in 2008.[98] In 2012, Minnesota became the second state to reject an amendment to its state constitution banning same-sex marriage.[99] A bill that would have legalized same-sex marriage in New Jersey was vetoed by Governor Chris Christie on February 17, 2012.[100]

Prior to the November 2012 election, Maryland recognized same-sex marriages formed in other jurisdictions, but did not license such marriages.[101] Similarly, New York did not issue marriage license to same-sex couples but its courts had mandated the recognition of same-sex marriages established elsewhere,[102] a situation which changed when its legislature legalized same-sex marriage 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.[103][104] North Carolina already prohibited same-sex marriages by statute.

In the regular November 2012 elections, voters for the first time approved the legalization of same-sex marriage by popular vote in three states: Maine, Maryland, and Washington. Maine's law took effect on December 29, 2012.[105] Maryland started allowing same-sex marriages on January 1, 2013,[106] In Washington state, the first licenses were distributed on December 6, with the first marriages on December 9 following the mandatory three day waiting period.[107][108] In the same election, Minnesota became the second state to reject a statewide constitutional ban against same-sex marriage by a popular vote.[109]

Several jurisdictions 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.[67] Rhode Island enacted legislation on May 2, which took effect August 1;[110] Delaware enacted legislation on May 7, which took effect July 1;[111] and Minnesota enacted legislation on May 14, which took effect August 1.[112][113] 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 were unconstitutional, but his action was overruled by a state intermediate appellate court in September and he was ordered to cease issuing the licenses.[114]

New Jersey began issuing same-sex marriage licenses on October 21, 2013, following a September 27 state superior court decision that found an equal protection right of same-sex couples to marry.[115] Governor Chris Christie filed an appeal to the New Jersey Supreme Court, but withdrew it after the court declined to stay the lower court's ruling.[116]

In October and November 2013, 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.[117] 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.[118] 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.[119] 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.[120]

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[121] and Santa Fe County began issuing same-sex marriage licenses, the latter through a court order.[122][123][124][125][126] Although opponents filed for an injunction,[127] same-sex marriage expanded to a total of eight New Mexico counties.[128] On December 19, 2013, the state Supreme Court ruled unanimously that, effective immediately, same-sex marriage would be permitted throughout the state.[129]

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.[130] Salt Lake County began issuing marriage licenses immediately, followed by other counties.[131] 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.[2][132] The stay allowed Utah to reinstate its ban on same-sex marriage and deny state services to married same-sex couples.[133] 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.[134] The Tenth Circuit ordered the appeals process to be heard on an expedited basis[135]

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.[3] On January 23, Virginia Attorney General Mark Herring announced that the state was reversing its position and support a federal lawsuit challenging the Virginia state constitution's ban on same-sex marriage.[136] 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.[137] 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.[138] 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.[139]

On February 12, U.S. District Judge John G. Heyburn declared Kentucky's refusal to recognize same-sex marriages from other jurisdictions unconstitutional.[140][141] On February 27, Judge Heyburn issued an order requiring the state to recognize same-sex marriages performed in other jurisdictions,[142] but the next day he stayed that order until March 20.[143] 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.[144] Additionally, on July 1, a judge ruled in Love v. Beshear that the ban on performing same-sex marriage within Kentucky was unconstitutional, and also stayed the ruling.[145]

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.[146]

On February 26, U.S. District Judge Orlando Garcia ruled in De Leon v. Perry that Texas's ban on same-sex marriage is an unconstitutional "state-imposed inequality".[147] He immediately stayed the effect of his ruling, pending an appeal. Texas Attorney General Greg Abbott said that he would appeal the ruling to the Fifth Circuit Court of Appeals.[148]

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.[149] Several of the state's 102 county clerks began, or announced plans to begin, issuing marriage licenses to same-sex couples in March.[150]

On March 21, U.S. District Court Judge Bernard A. Friedman 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.[151] 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.[152] On March 25, the stay pending appeal was granted by the appellate court.

On May 9, 2014, Pulaski County Circuit Judge Chris Piazza struck down Arkansas' constitutional ban on same-sex marriage in Wright v. Arkansas.[153] As the details of his ruling and requests for a stay were considered, approximately 450 same-sex marriage licenses were issued. The Arkansas Supreme Court stayed enforcement of his ruling pending appeal on May 16.[154]

On May 13, U.S. District Magistrate Judge Candy Dale in Latta v. Otter has issued a ruling striking down Idaho's ban on marriage for same-sex couples and ordering the state to allow same-sex couples to marry in Idaho and to recognize the marriages of couples who married in other states.[155][156] But on May 15, a three-judge panel of the Ninth Circuit Court of Appeals issued a temporary stay while it considers whether a longer stay is needed. Gov. Butch Otter and Attorney General Lawrence Wasden both asked that Dale’s ruling be placed on hold while they appeal.[157]

On May 19, U.S. District judge Michael J. McShane ruled in Geiger v. Kitzhaber that Oregon's same-sex marriage ban was unconstitutional, striking it down.[158] Judge McShane ordered marriages to begin immediately.[159] The National Organization for Marriage filed a petition to intervene as defendants in the case, two days before oral arguments; the petition was denied. Both the Ninth Circuit Court of Appeals and the Supreme Court of the United States denied NOM's emergency request for a stay on Judge McShane's ruling, thereby permanently legalizing same-sex marriage in the state.[159][160][161]

On May 20, 2014, Judge John E. Jones III of the United States District Court for the Middle District of Pennsylvania struck down Pennsylvania's same-sex marriage ban in his ruling in Whitewood v. Wolf.[162] Governor Tom Corbett said he will not appeal the court decision, effectively legalizing same-sex marriage in Pennsylvania.[163] One county clerk has decided to intervene in, appeal, and stay the decision. The trial court denied intervention and the stay of judgment, and the Third Circuit affirmed. On July 7, 2014, the clerk applied to the U.S. Supreme Court for a stay. U.S. Supreme Court Associate Justice Samuel Alito, Circuit Justice for the Third Circuit, denied the clerk's application for a stay on July 8, 2014, and the Third Circuit denied the clerk's petition to rehear her case for intervention on August 4, 2014.[164][165]

On June 6, 2014, Judge Barbara Bandriff Crabb of the United States District Court for the Western District of Wisconsin struck down Wisconsin's same-sex marriage ban in Wolf v. Walker.[166] No immediate injunction to stop enforcement of the ban was ordered,[167] and county clerks in at least 60 counties have begun to issue marriage licenses to same-sex couples.[168] After Judge Barbara Crabb refused to stay her ruling, Wisconsin's attorney general J. B. Van Hollen requested a stay from the Seventh Circuit Court of Appeals in Chicago. On June 13, the judge put the ruling on hold, pending appeal.[169]

On June 25, 2014, the Tenth Circuit Court affirmed Judge Robert Shelby's ruling striking Utah's same-sex marriage ban.[170][171] It was the first time a federal appeals court recognized that same-sex couples have a fundamental right to marry.[171] The judgment was stayed pending review from the Supreme Court.[172][173] Boulder County in Colorado, a state in the Tenth Circuit's jurisdiction, began issuing licenses despite the stay until ordered by the Colorado Supreme Court to stop. The same day, a federal district court in Indiana ruled Indiana's ban on same-sex marriage unconstitutional. Judge Richard L. Young did not issue a stay on his ruling and instructed all state agencies to provide marital benefits to same-sex couples.[174] Two days later, the order was stayed by the Seventh Circuit Court of Appeals pending appeal.[175]

On July 9, 2014, Judge C. Scott Crabtree of the Colorado 17th Judicial District Court struck down Colorado's same-sex marriage ban in Brinkman v. Long, holding that the state's "marriage bans violate plaintiffs’ due process and equal protection guarantees under the Fourteenth Amendments to the U.S. Constitution."[176] Judge Crabtree immediately stayed the decision pending appeal. The next day, another state judge declined to stop the Boulder County clerk that had been issuing licenses, and Denver County began issuing licenses. On July 11, Pueblo County began issuing licenses as well.[177] On July 23, in Burns v. Hickenlooper, U.S. District Judge Raymond P. Moore also ruled that the Colorado's ban against same-sex marriage is unconstitutional. On July 29, the Colorado Supreme Court ordered Boulder County to stop issuing marriage licenses to same-sex couples, halting the practice a month after a handful of county clerks had defied a ban in the State Constitution. Clerks in Pueblo County and Denver County have also stopped issuing marriage license to same-sex couples as well.[178] On August 21, the Tenth Circuit Court of Appeals stayed the effect of Burns pending disposition of petitions for certiorari in that case by the U.S. Supreme Court.

On July 17, 2014, a Florida state circuit judge, Luis M. Garcia, overturned the state's constitutional ban on same-sex marriage. This ruling applies only to Monroe County, Florida, and includes the Florida Keys. The ruling has been stayed pending appeal.[179] A similar ruling on July 25 overturned the ban in Miami-Dade County but was also stayed.[180] The ban was also overturned and stayed in Broward County on August 4, 2014 and Palm Beach County on August 5. On August 21, U.S. District Judge Robert Hinkle ruled that Florida's ban on same-sex marriage violates the constitutional guarantee of equal protection and due process under the law, striking it down. The judge immediately stayed his ruling, pending further appeals.[181]

On July 28, 2014, the Fourth Circuit Court of Appeals affirmed the unconstitutionality of Virgina's ban on same-sex marriage in Bostic v. Schaefer.[182][183] The U.S. Supreme Court issued a stay on August 20, 2014, one day before the Fourth Circuit's mandate was to go into effect.

On September 4, 2014, a three-judge panel of the Seventh Circuit Court of Appeals unanimously affirmed the unconstitutionality of Indiana and Wisconsin's bans on same-sex marriage in Baskin v. Bogan.[184][185] The Court stayed its decision before it took effect, pending action by U.S. Supreme Court.[186]

States that license same-sex marriage (table)

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 from other jurisdictions but do not license them.

States (and D.C.) with same-sex marriage
State or federal district Population[187] Date of Enactment/Ruling Date Effective Legalization method Details
1.  Massachusetts 6,692,824 Nov 18, 2003 May 17, 2004 State court decision Massachusetts Supreme Judicial Court ruling in Goodridge v. Department of Public Health.
2.  California 38,332,521 May 15, 2008 June 16, 2008 State court decision → (Overturned by constitutional ban) → Federal court decision → legislative statute California Supreme Court ruling in In re Marriage Cases. Ceased via state constitutional amendment after Proposition 8 passed on November 5, 2008. Went into effect the next day. U.S. District Court for the Northern District of California ruling in Perry v. Schwarzenegger, finding Proposition 8 unconstitutional on August 4, 2010. Stayed during appeal, affirmed by the the Ninth Circuit Court of Appeals as Perry v. Brown. Certiorari granted and appealed as Hollingsworth v. Perry to the U.S. Supreme Court; the high court dismissed Hollingsworth for lack of standing and vacated the Ninth Circuit decision below, resulting with the original decision in Perry left intact.[85] Gender-neutral marriage bill passed by the California State Legislature and signed into law; not yet in effect.
Aug 4, 2010 June 28, 2013
3.  Connecticut 3,596,080 Oct 10, 2008 Nov 12, 2008 State court decision → legislative statute Connecticut Supreme Court ruling in Kerrigan v. Commissioner of Public Health, also passed by the Connecticut General Assembly as Public Act 09-13.
4.  Iowa 3,090,416 April 3, 2009 April 27, 2009 State court decision Iowa Supreme Court ruling in Varnum v. Brien.
5.  Vermont 626,630 April 7, 2009 Sep 1, 2009 Legislative statute Passed by the Vermont General Assembly, overriding Governor Jim Douglas' veto.
6.  New Hampshire 1,323,459 June 3, 2009 Jan 1, 2010 Legislative statute Passed by New Hampshire General Court.
-  District of Columbia 646,449 Dec 18, 2009 March 9, 2010 Legislative statute Passed by the Council of the District of Columbia.
7.  New York 19,651,127 June 24, 2011 July 24, 2011 Legislative statute Marriage Equality Act passed by New York State Legislature.
8. Washington (state) Washington 6,971,406 Nov 6, 2012 Dec 6, 2012 Legislative statute → referendum Passed by the Washington State Legislature; suspended by petition and referred to Referendum 74, approved.
9.  Maine 1,328,302 Dec 29, 2012 Initiative statute Proposed by initiative as referendum Question 1, approved.
10.  Maryland 5,928,814 Jan 1, 2013 Legislative statute → referendum Civil Marriage Protection Act passed by the Maryland General Assembly; referred to referendum Question 6, upheld.
11.  Rhode Island 1,051,511 May 2, 2013 Aug 1, 2013 Legislative statute Passed by the Rhode Island General Assembly.
12.  Delaware 925,749 May 7, 2013 July 1, 2013 Legislative statute Passed by the Delaware General Assembly.
13.  Minnesota 5,420,380 May 14, 2013 Aug 1, 2013 Legislative statute Passed by the Minnesota Legislature
14.  New Jersey 8,899,339 Sep 27, 2013 Oct 21, 2013 State court decision New Jersey Superior Court ruling in Garden State Equality v. Dow, stay denied by that court; appeal abandoned by the governor.
15.  Hawaii 1,404,054 Nov 13, 2013 Dec 2, 2013 Legislative statute Hawaii Marriage Equality Act passed by Hawaii State Legislature
16.  Illinois 12,882,135 Nov 20, 2013 June 1, 2014 Legislative statute Passed by the Illinois General Assembly
17.  New Mexico 2,085,287 Dec 19, 2013 Dec 19, 2013 State court decision New Mexico Supreme Court ruling in Griego v. Oliver.
18.  Oregon 3,930,065 May 19, 2014 May 19, 2014 Federal court decision U.S. District Court for the District of Oregon ruling in Geiger v. Kitzhaber. Not appealed by defendants.
19.  Pennsylvania 12,773,801 May 20, 2014 May 20, 2014 Federal court decision U.S. District Court for the Middle District of Pennsylvania ruling in Whitewood v. Wolf. Not appealed by defendants.
Total 137,560,349 (43.5% of the U.S. population)

States with stayed rulings for same-sex marriage

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 Pop.[187] Ruled Stayed from Jurisdiction Court decision(s) Notes
1.  Utah 2,900,872 Dec 20, 2013 Jan 6, 2014 U.S. District of Utah Kitchen v. Herbert About 1,360 same-sex marriages were performed in Utah in the 17 days before the U.S. Supreme Court ordered a stay sub nom. Herbert v. Kitchen, 134 S. Ct. 893 (January 6, 2014).[188][189] The Tenth Circuit Court of Appeals affirmed the district court ruling in Kitchen on June 25, 2014; there is a stay pending further action.[190] A preliminary injunction ordered in Evans v. Herbert, 2014 WL 2048343 (D. Utah May 19, 2014) requires the state to recognize the marriages performed between the Kitchen ruling and its stay, but the U.S. Supreme Court stayed the district court decision in Herbert v. Evans, No. 14A65, 2014 WL 3557112 (July 18, 2014).[191]
2.  Oklahoma 3,814,820 Jan 14, 2014 Jan 14, 2014 U.S. Northern District of Oklahoma Bishop v. Oklahoma Enforcement stayed in initial ruling, referencing the Supreme Court's stay in Kitchen.[192] The Tenth Circuit affirmed the case as Bishop v. Smith on July 18, 2014.[193]
3.  Texas 26,448,193 Feb 26, 2014 Feb 26, 2014 U.S. Western District of Texas De Leon v. Perry Enforcement stayed in initial ruling, referencing the Supreme Court's stay in Kitchen.[194] The case is before the Fifth Circuit Court of Appeals.
4.  Michigan 9,895,622 March 21, 2014 March 22, 2014 U.S. Eastern District of Michigan DeBoer v. Snyder Enforcement stayed until March 26, 2014 in initial ruling, citing the time needed to consider a full stay.[195] On March 25, the stay was extended indefinitely.[196] Same-sex marriages were performed in Michigan on March 22 before the stay was issued that same day. The Sixth Circuit Court of Appeals heard oral arguments in DeBoer on August 6, 2014.[197]
5.  Arkansas 2,959,373 May 9, 2014 May 14, 2014 Arkansas Sixth Circuit, Pulaski County Wright v. Arkansas Enforcement temporarily stopped on May 14, 2014, after the Arkansas Supreme Court stated that Judge Piazza's order was silent about the state statutory same-sex marriage ban.[198][199]
May 15, 2014 May 16, 2014 Trial judge issued a clarified order on May 15, 2014, preventing enforcement of any ban on same-sex marriage in the state.[200] Licenses issued to same-sex couples again that day.[201] The state appealed to the Arkansas Supreme Court, which entered a stay on May 16, 2014.[202]
6.  Idaho 1,612,136 May 13, 2014 May 15, 2014 U.S. District of Idaho Latta v. Otter Enforcement stayed by the Ninth Circuit Court of Appeals pending appeal, before the district court ruling could take effect.[203][204] The Ninth Circuit heard oral arguments on September 8, 2014.
7.  Wisconsin 5,742,713 June 6, 2014 June 13, 2014 U.S. Western District of Wisconsin Wolf v. Walker Same-sex marriages were briefly performed before the ruling was stayed on June 13, 2014.[205] The Seventh Circuit Court of Appeals heard oral arguments on August 26, 2014, and on September 4 it affirmed the district court's ruling.[206] It stayed enforcement of its ruling on September 18.[186]
8.  Indiana 6,570,902 June 25, 2014 June 27, 2014 U.S. Southern District of Indiana Baskin v. Bogan Enforcement stayed on June 27, 2014, by the Seventh Circuit Court of Appeals pending appeal.[175] Same-sex marriages were performed before the ruling was stayed. The Seventh Circuit heard oral arguments on August 26, 2014. On September 4, 2014, the Seventh Circuit issued a decision affirming the district court's ruling[206] and stayed its ruling on September 15.[207]
9.  Kentucky 4,395,295 July 1, 2014 July 1, 2014 U.S. Western District of Kentucky Love v. Beshear Enforcement stayed in the initial ruling. The Sixth Circuit Court of Appeals heard oral arguments on August 6, 2014.[197]
10.  Virginia 8,260,405 Jul 28, 2014 Aug 20, 2014 Fourth Circuit Court of Appeals Bostic v. Schaefer Enforcement stayed by the U.S. Supreme Court after a mandate of the Fourth Circuit Court of Appeals was set to give effect to the judgment in Bostic v. Schaefer.[182] The judgment affirmed the U.S. district court ruling in Bostic v. Rainey below, and did not initially issue a stay.[183] The Supreme Court stayed the issuance of the mandate on August 20, 2014, "pending the timely filing and disposition of a petition for a writ of certiorari," McQuigg v. Bostic, No. 14A196.
11.  Florida 19,552,860 August 21, 2014 August 21, 2014 U.S. Northern District of Florida Brenner v. Scott Enforcement stayed in the initial ruling by U.S. District Judge Robert Lewis Hinkle.[208] On appeal the case is titled Brenner v. Armstrong, and the first briefs are due in October.[209]
12.  Colorado 5,268,367 July 9, 2014 July 9, 2014 Colorado 17th Judicial District Brinkman v. Long Enforcement has been stayed in the initial ruling pending the outcome of appeals in the Colorado Supreme Court.
July 23, 2014 August 21, 2014 U.S. District of Colorado Burns v. Hickenlooper Enforcement stayed by the Tenth Circuit Court of Appeals, noting similar stays issued in Kitchen and Bishop, and the U.S. Supreme Court stay issued in Bostic the day before.[210]
Total 97,421,558 (30.8% of the U.S. population)

Tribal laws

Main article: Same-sex marriage under United States tribal jurisdictions

In the United States, federally recognized Native American tribes have the legal right to form their own marriage laws.[211] There are ten tribal jurisdictions that legally recognize same-sex marriage: the Cheyenne and Arapaho Tribes,[212] the Confederated Tribes of the Colville Reservation,[213] the Coquille Tribe,[214] the Little Traverse Bay Bands of Odawa Indians,[215] the Mashantucket Pequot Tribe,[216] the Pokagon Band of Potawatomi Indians,[217] the Puyallup tribe,[218] the Santa Ysabel Tribe,[219] the Leech Lake Band of Ojibwe,[220] and the Suquamish tribe.[221] The legality of same-sex marriage is currently on hold in the Sault Tribe of Chippewa Indians due to Michigan's same-sex marriage ban being challenged.

Debate

Support

See also: List of supporters of same-sex marriage in the United States
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.[222] Fernando Espuelas argues that same-sex marriage should be allowed because same-sex marriage extends a civil right to a minority group.[223] According to an American history scholar, Nancy Cott, "there really is no comparison, because there is nothing that is like marriage except marriage."[224]

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."[225]

The leading associations of psychological, psychiatric, medical, and social work professionals in the United States such as American Psychiatric Association, American Psychological Association, American Sociological 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.[226][227][228][229][230][231][232] 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.[233]

Garden State Equality states that the wording "same-sex marriage" implies a separate, and therefore unequal, category of marriage.[234] The 2012 Democratic Party Platform used the term "marriage equality" in its support.[235]

Role of social media

Supporters of the legalization of same-sex marriage have successfully used social media websites such as Facebook to help achieve that goal.[236][237][238] 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.[239]

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.[240] 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.[241]

Opposition

Rally for Prop 8 in Fresno, California (October 2008)
See also: List of opponents of same-sex marriage in the United States

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.[242] 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".[243] 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.[244][245][246][247] 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.[248] 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.[249][250] 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.[251]

The funding of the amendment referendum campaigns has been an issue of great dispute. Both judges[252][253] and the IRS[254] 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.[255]

Obama administration

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,[256] stating that individual states should decide the issue.[257][258] Obama opposed Proposition 8—California's constitutional ban on same-sex marriage—in 2008.[259] 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.[260] 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.[261]

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.[32][262][263][264] 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."[265] although he remained supportive of the rights of individuals who identified as gay or lesbian.[260] Obama had previously made comments in support of same-sex marriage as early as the 1990s during his campaign for the Illinois Senate.[266] In a 1996 newspaper interview, Obama stated "I favor legalizing same-sex marriages, and would fight efforts to prohibit such marriages."[267]

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

Former presidents Bill Clinton[268] and Jimmy Carter,[269] former vice presidents Dick Cheney[270] and Al Gore,[271] Walter Mondale[272] and current Vice President Joe Biden have voiced their support for legal recognition, as have former first ladies Laura Bush[273] and Hillary Clinton.[274] 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.[275] In May 2012, Barack Obama became the first sitting President to support same-sex marriage.[32] In March 2013, Rob Portman became the first sitting Republican senator to endorse same-sex marriage.[276] 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,[277] including another Republican, Senator Mark Kirk of Illinois. A majority of the Senate now supports same-sex marriage.[278] In June 2013, Lisa Murkowski of Alaska became the third Republican senator to endorse same-sex marriage.[279] In June 2014, Susan Collins of Maine became the fourth Republican senator endorse same-sex marriage.[280]

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."[281]

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."[282] 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."[283]

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."[284] Gingrich, whose sister is openly gay,[285] 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.[286]

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."[287]

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?'"[288][289]

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."[290]

Public opinion

Main article: Public opinion of same-sex marriage in the United States
Public opinion of same-sex marriage in the United States of America
  A poll reports a significant finding that a majority of that state's population supports same-sex marriage.
(95% significant: Result is > 0.653 of the 95% sampling error (> 1.28σ) above 50%.)
  A poll shows at least a plurality, and possibly a majority, of that state's population supports same-sex marriage.
  A poll shows a statistical tie between support of and opposition to same-sex marriage.
(Statistical tie: Not distinguishable at 95% confidence. Difference between support and opposition is < 0.842 of the 95% sampling error (< 1.65σ).)
  A poll shows at least a plurality, and possibly a majority, of that state's population opposes same-sex marriage.
  A poll reports a significant finding that a majority of that state's population opposes same-sex marriage.
(95% significant: Result is > 0.653 of the 95% sampling error (> 1.28σ) above 50%.
  No polling data within the past two years.
When a state is striped with light gray and another color, the color it's striped with indicates the result of the last poll for that state, in the absence of data within the past two years.
A state that is split into two colors indicates recent polls with conflicting results.

As of 2013, public support for same-sex marriage in the United States has solidified above 50%.[291][292][293] Public support for same-sex marriage has grown at an increasing pace since the 1990s.[30] 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.[294] 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.[295] On May 20, 2011, Gallup reported majority support for same-sex marriage for the first time in the country.[296] 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."[297]

A Washington Post/ABC News poll from February–March 2014 found a record high of 59% of Americans approve of same-sex marriage, with only 34% opposed and 7% with no opinion.[298] 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."[299] Some commentators, however, have noted instances where polling data has understated voter opposition to referendums banning same-sex marriage.[300] One 2010 study concluded that "polls on gay marriage ballot initiatives generally under-estimate the opposition to gay marriage by about seven percentage points".[301]

Effects of same-sex marriage

Economic impact on same-sex couples

Until the Supreme Court's June 2013 ruling in United States v. Windsor required the federal government to treat legally married same-sex couples on an equal basis with heterosexual married couples, same-sex married couples faced severe disadvantages. The federal government did not recognize those marriages for any purpose. According to a 1997 General Accounting Office study, at least 1,049 U.S. federal laws and regulations include references to marital status.[302] A 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.'"[303] Many of these laws govern property rights, benefits, and taxation. Same-sex couples whose marriages are not recognized by the federal government are ineligible for spousal and survivor Social Security benefits and are ineligible for the benefits due the spouse of a federal government employee.[303] One study found that the difference in Social Security income for same-sex couples compared to opposite-sex married couples was US$5,588 per year.[304]

Compared to similarly situated opposite-sex married couples, same-sex couples faced the following financial and legal disadvantages:

  • 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[304]
  • 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[303]
  • 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[303][m]
  • Employer-provided health insurance coverage for a same-sex partner incurred federal income tax[303]
  • 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[304]
  • Inability to protect jointly owned home from loss due to costs of potential medical catastrophe[304]
  • Inability of a U.S. citizen to sponsor a same-sex spouse for citizenship[304]

Some 7,400 companies were offering spousal benefits to same-sex couples as of 2008. In states that recognized same-sex marriages, same-sex couples could continue to receive those same benefits only if they married.[306] Only 18% of private employers offered domestic partner health care benefits.[304]

Same-sex couples face the same financial constraints of legal marriage as opposite-sex married couples, including the marriage penalty in taxation.[303] 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.[303]

Economic impact on the federal government

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.[303]

Mental health

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.[233]

Several psychological studies[307][308][309] 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.[310]

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.[311]

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.[312]

Physical health

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.[313][314] 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.[315]

Case law

See also: Same-sex marriage legislation in the United States § Lawsuits seeking to overturn statutory bans

United States case law regarding same-sex marriage:

1970s

  • Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). Upholds a Minnesota law defining marriage as the union of a man and a woman.
  • Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973). Upholds 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 specify the gender of marriage partners.[316]
  • Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974). A ban on same-sex marriage is a constitutional form of "gender discrimination"; the historical definition of marriage is between one man and one woman, and same-sex couples are inherently ineligible to marry.

1980s

  • Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111. A 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). A same-sex couples can divorce because they cannot enter a common law marriage.[317]

1990s

  • 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). A statute limiting marriage to opposite-sex couples violates the Hawaii constitution's equal-protection clause unless the state can show that the statute is both justified by compelling state interests and also narrowly tailored. This ruling prompted the adoption of Hawaii's constitutional amendment allowing the legislature to restrict marriage to different-sex couples 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 in 2008.
  • In re Estate of Hall, 707 N.E.2d 201, 206 (Ill. App. Ct. 1998). Illinois does not recognize a same-sex marriage. The petitioner's claim to be in a same-sex marriage was not in a marriage recognized by law.
  • Baker v. Vermont, 170 Vt. 194; 744 A.2d 864 (Vt. 1999). The Common Benefits Clause of the state constitution requires that same-sex couples be granted the same legal rights as married persons, though it need not be called marriage.

2000s

  • Rosengarten v. Downes, 806 A.2d 1066 (Conn. Ct. App. 2002). Connecticut will not dissolve a Vermont civil union.
  • Burns v. Burns, 560 S.E.2d 47 (Ga. Ct. App. 2002). Marriage is the union of one man and one woman.
  • Frandsen v. County of Brevard, 828 So. 2d 386 (Fla. 2002). The Florida constitution will not be construed to recognize same-sex marriage; sex classifications not subject to strict scrutiny under the Florida constitution.
  • In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002). A post-operative male-to-female transgender may not marry a male, because the former is still a male in the eyes of the law, and Kansas only recognizes the marriage of a man and a woman.
  • Standhardt v. Superior Court ex rel. County of Maricopa, 77 P.3d 451 (Ariz. Ct. App. 2003) The constitution of Arizona does not provide the right to same-sex marriage.
  • Morrison v. Sadler, 2003 WL 23119998 (Ind. Super. Ct. 2003). Indiana's Defense of Marriage Act is valid.
  • Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003). The denial of marriage licenses to same-sex couples violated provisions of the state constitution guaranteeing individual liberty and equality, and it was not rationally related to a legitimate state interest.
  • Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006). 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.[318]
  • Lewis v. Harris, 908 A.2d 196 (N.J. 2006). Prohibiting same-sex marriage does not violate the New Jersey constitution, but the state must extend all the rights and responsibilities of marriage to same-sex couples. The legislature has 180 days 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). The New York State Constitution does not require that marriage rights be extended to same-sex couples.[319]
  • Langan v. St. Vincent's Hospital, 802 N.Y.S.2d 476 (App. Div. 2005). For the purposes of New York's wrongful death statute the survivor partner from a Vermont civil union lacks standing as a "spouse".
  • Conaway v. Deane, 932 A.2d 571 (Md. 2007). Upholds a Maryland law defining marriage as the union of a man and a woman.
  • Martinez v. County of Monroe, 850 N.Y.S.2d 740 (App. Div. 2008). Because New York recognizes the marriages of opposite-sex couples from other jurisdictions, it must do the same for same-sex couples.[320])
  • In re Marriage Cases, 183 P.3d 384 (Cal. 2008). Limiting marriage to opposite-sex couples is invalid under the equal protection clause of the California Constitution. Full marriage rights, not merely domestic partnership, must be offered to same-sex couples.[321]
  • Strauss v. Horton, 207 P.3d 48 (Cal. 2009). Proposition 8 was validly adopted, and marriages contracted before its adoption remain valid.[322]
  • Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). Barring same-sex couples from marriage 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

Challenges to DOMA Section 3
California Proposition 8
  • Hollingsworth v. Perry (2009–2013). California's Proposition 8, a voter-endorsed constitutional amendment banning same-sex marriage, is found unconstitutional in U.S. district court in Perry v. Schwarzenegger. The proposition's backers appeal to the Ninth Circuit Court of Appeals, which upholds the district court's finding of unconstitutionality in Perry v. Brown. The U.S. Supreme Court ruled that the proposition's backers lacked standing to appeal and left the district court ruling intact.[324]
Same-sex marriage rights
  • Port v. Cowan (2010–2012), Maryland must recognize valid out-of-state same-sex marriages under doctrine of comity.[325]
  • 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, 316 P.3d 865 (N.M. 2013), New Mexico's constitutional protections require marriage to be extended to same-sex couples in this N.M. Supreme Court ruling.
  • State v. Schmidt, Opinion No. 6898 (Alaska, April 25, 2014), The Supreme Court of Alaska finds that same-sex couples, defined as "two people of the same biological sex who are in a long-term, committed, intimate domestic partnership, and who", but if for Alaska law, "would marry if they could" are entitled to the full benefit of the state's tax exemption programs.[326]
  • Whitewood v. Wolf (Pennsylvania). On May 20, 2014, Judge John E. Jones III ruled in Whitewood v. Wolf that Pennsylvania's same-sex marriage ban was unconstitutional. The state's governor declined to appeal and the decision went into effect immediately, effectively legalizing same-sex marriage in Pennsylvania.[162] The Schuylkill County clerk represented by the Alliance Defending Freedom, a conservative Christian nonprofit organization, tried several times to intervene in the case–both to stay the district court decision and to defend the state's ban–without success. U.S. Supreme Court Associate Justice Samuel Alito denied her application for a stay on July 8, 2014, and the Third Circuit denied the clerk's petition to rehear her case for intervention on August 4, 2014.[164][165]
  • Geiger v. Kitzhaber and Rummell v. Kitzhaber (Oregon). The U.S. district court consolidated two state same-sex marriage cases. The state agreed with the plaintiffs and did not defend its ban on same-sex marriage.[327] Three weeks after the court heard oral argument, the National Organization for Marriage (NOM) tried without success to intervene in the case. On May 19, District Judge Michael J. McShane declared Oregon's same-sex marriage ban unconstitutional. He issued a permanent injunction against any denial of marriage rights to same-sex couples.[328] NOM tried without success tried to appeal the decision or obtain a stay of McShane's injunction. On June 4, 2014, Justice Anthony Kennedy denied NOM's request for a stay.[329]

In litigation

Litigation against Same-sex marriage bans in the United States
  SSM legal
  Judicial ruling against a SSM ban stayed pending appeal
  Litigation in U.S. court of appeals
  Litigation in U.S. district court
  Litigation in state court
* State attorney-general not defending ban.
Only the case before the highest court is coded per state.

Lawsuits have been filed in state and federal courts to challenge same-sex marriage bans in every state that prohibits the issuance of marriage licenses to same-sex couples or the recognition of same-sex marriages performed elsewhere,[330] as well as in Puerto Rico.

U.S. Supreme Court

On September 29, 2014, the U.S. Supreme Court is scheduled to hold its first private conference where it can consider appeals in five cases from Indiana, Oklahoma, Virginia, Wisconsin, and Utah.[331]

Baskin v. Bogan, an Indiana case from the Seventh Circuit

Baskin v. Bogan, filed March 13, 2014, took precedence over several Indiana lawsuits because the partner of one of the plaintiff couples was terminally ill. The district court granted him immediate relief. On June 25, 2014, the U.S. district court ruled in favor of the remaining plaintiffs in Baskin and the related cases, but did not immediately issue a stay.[332] On June 27, the Seventh Circuit granted an emergency stay for the duration of the appeal. The Seventh Circuit upheld the district court's ruling in Baskin on September 4[333] and both parties have asked the U.S. Supreme Court to consider the case.[334]

Bishop v. Smith, an Oklahoma case from the Tenth Circuit

Oklahoma's ban on same-sex marriage was ruled unconstitutional in U.S. district court in the case originally Bishop v. Oklahoma. Appeal was heard by the same panel of judges as Kitchen in the Tenth Circuit, with oral argument on April 17, 2014.[335][336] The Tenth Circuit upheld the district court ruling on July 18, 2014, and stayed its decision pending further appeal.[337]

Bostic v. Schaefer, a Virginia case from the Fourth Circuit

The case was initially filed as Bostic v. McDonnell on July 18, 2013, and later known as Bostic v. Rainey. The U.S. district court found the Virginia's ban on same-sex marriage unconstitutional on February 13, 2014, under both due process and equal protection challenges. The court stayed enforcement of its ruling pending the conclusion of appeal proceedings. Restyled as Bostic v. Schaefer, the Fourth Circuit heard oral arguments on May 12, 2014.[338] On July 28, in a 2–1 decision, the Fourth Circuit affirmed the district court's ruling. The majority noted that "inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws."[339] After the ruling, North Carolina Attorney General Roy Cooper indicated he would no longer defend his state's ban.[340]

Kitchen v. Herbert, a Utah case from the Tenth Circuit

The state ban on same-sex marriage ruled unconstitutional in U.S. district court, 961 F. Supp. 2d 1181 (2013). Ruling stayed by U.S. Supreme Court until resolution of appeals, Herbert v. Kitchen, 134 S.Ct. 893 (January 6, 2014). Appealed in the Tenth Circuit, case number 13-4178, with oral arguments held on April 10, 2014.[341] District court ruling upheld, June 25, 2014; stayed pending further appeal.[190] On August 5, a petition for certiorari was filed with the Supreme Court by the office of the state's Attorney General[342] and the plaintiffs' attorneys said they would support the state's request.[343]

Wolf v. Walker, a Wisconsin case from the Seventh Circuit

U.S. District Judge Barbara Crabb granting the plaintiff same-sex couples' motion for summary judgement on June 6, 2014. She found that Wisconsin's constitutional and legislative ban on same-sex marriage interferes with the fundamental right to marriage, violating the plaintiffs' due process and equal protection rights. Though she issued no order, clerks in at least 60 counties had begun marrying same-sex couples based on her declaratory judgement. She issued a stay on June 13.[344] The Seventh Circuit consolidated Wolf with a similar Indiana case, Baskin, and ruled both states' laws unconstitutional on September 4, 2014. On September 9, 2014, Wisconsin asked the U.S. Supreme Court to uphold its ban on same-sex marriage,[345] and on September 18 the Seventh Circuit stayed enforcement of its ruling.[186]

Courts of Appeals

Federal courts of appeal (numbered) and federal district courts (dashed lines and state boundaries)

Fifth Circuit

Robicheaux v. Caldwell (Louisiana)
A marriage recognition case, filed in July 2013, was later joined by plaintiffs from another case, refiled with additional defendants, and titled Robicheaux v. Caldwell. Oral arguments on the recognition of marriages from other jurisdictions were held on June 25, 2014, before U.S. District Judge Martin Feldman, who scheduled further briefing on the broader question of the state's ban on same-sex marriage.[346] On September 3, Judge Feldman ruled against the plaintiffs, upholding Louisiana's ban on same-sex marriage.[347] The state has filed an unopposed motion asking the Fifth Circuit Court of Appeals for an expedited briefing schedule to allow the case to be heard by the same panel and at the same time as a similar Texas case, De Leon v. Perry,[348] which the Fifth Circuit granted on September 25.[349]
De Leon v. Perry (Texas)
Same-sex marriage case filed on October 28, 2013; preliminary injunction granted in U.S. district court on 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.[350] On April 14, the same-sex couples filed a motion for an expedited hearing of the appeal, which Circuit Judge James E. Graves, Jr. denied without comment on May 21.[351][352]

Sixth Circuit

All four states under the jurisdiction of the Sixth Circuit Court of Appeals have a same-sex marriage case under appeal in that court. Oral arguments for all the below Sixth Circuit cases (DeBoer, Obergefell and Henry, Bourke and Love, and Tanco) were heard on August 6, 2014.[353]

DeBoer v. Snyder (Michigan)
Filed on January 23, 2012; the U.S. district court found that the state ban violates the Equal Protection Clause, 973 F. Supp. 2d 757 (E.D. Mich.). Permanent injunction against enforcement of same-sex marriage bans and implementing statutes 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—only to deny the state's petition twenty days later, with not one judge in the circuit voting to bypass the normal procedure: a hearing by a three-judge panel.[354][355][356]
Obergefell v. Himes and Henry v. Himes (Ohio)
In a case filed on July 19, 2013, Obergefell v. Wymyslo, the U.S. district court found that the state ban on same-sex marriage violates the Due Process Clause, for the limited purpose of issuing death certificates. On February 10, 2014, four same-sex couples legally married in other states filed suit in U.S. district court asking that Ohio be required to record the names of both same-sex parents on their children's birth certificates. They amended their suit to challenge the state's denial of marriage rights to same-sex couples. On April 14, 2014, District Court Judge Timothy Black, ruling in Henry v. Himes, wrote that "Ohio's marriage recognition bans are facially unconstitutional and unenforceable under any circumstance". He ordered the state to record the plaintiffs' names on their children's birth certificates, but stayed further enforcement of his decision pending appeal. On May 29, 2014, the Sixth Circuit consolidated Obergefell and Henry.[357] Henry is currently on appeal in the Sixth Circuit, which heard oral argument on August 6.
Bourke v. Beshear and Love v. Beshear (Kentucky)
Initially filed on July 26, 2013; here, the U.S. district court found the state's refusal to recognize same-sex marriages from other jurisdictions an unconstitutional violation of the Equal Protection Clause. Order stayed during interlocutory appeal. The addition of intervening plaintiffs to this lawsuit dealing with the related issue of denial of marriage licenses to same-sex couples, required the court to bifurcate the case and restyle it. Love continued in district court as to the state marriage license issue, while the out-of-state recognition issue was appealed.[358] On July 1, 2014, U.S. District Judge John G. Heyburn II found in favor of the intervening same-sex couple plaintiffs and ruled that Kentucky's denial of marriage licenses to same-sex couples violates the Equal Protection Clause. He found that homosexual persons constitute a suspect class deserving heightened scrutiny and suggested the Sixth Circuit should adopt this view. He found Kentucky's ban did not withstand even rational basis review.[359] Judge Heyburn stayed his ruling pending appeal. The Sixth Circuit consolidated Love v. Beshear with Bourke v. Beshear and heard oral arguments in this and other cases from Michigan, Ohio, and Tennessee on August 6.
Tanco v. Haslam (Tennessee)
Initially filed on October 21, 2013; here, the U.S. district court granted a preliminary injunction on March 14, 2014, with the court finding the equal protection analysis in Bourke (see above) persuasive. 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 district 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. The Sixth Circuit finally granted a stay at the request of the state defendants, at the same time, sua sponte, ordering expedited assignment to a panel of judges for consideration on the merits. Appellate case number 14-5297.[360]

Ninth Circuit

The Ninth Circuit Court of Appeals heard oral arguments in Jackson v. Abercrombie, Sevcik v. Sandoval, and Latta v. Otter on September 8, 2014. The panel hearing the cases consisted of U.S. Circuit Judges Stephen Reinhardt, Ronald M. Gould, and Marsha S. Berzon.[361]

Jackson v. Abercrombie (Hawaii)
A U.S. district court upheld the state's denial of marriage rights to same-sex couples in August 2012.[362] The state legalized same-sex marriage late in 2013, and the Ninth Circuit is considering whether the case is moot. The plaintiffs agree that the issue is moot and have asked for the district court ruling to be vacated.[363] The state attorney general is not defending the case on appeal,[364] but Hawaii Family Forum has intervened and asked the Ninth Circuit to suspend proceedings in this case pending the resolution of a state lawsuit, McDermott v. Abercrombie, which challenges the validity of Hawaii's statute legalizing same-sex marriage.[365] The Ninth Circuit heard oral arguments in Jackson and two other cases, Sevcik v. Sandoval and Latta v. Otter, on September 8.[366]
Sevcik v. Sandoval (Nevada)
A U.S. district court upheld the state's denial of marriage to same sex couples, 911 F. Supp. 2d 996 (D. Nev. 2012). 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 the lower rational basis review in sexual orientation discrimination cases is no longer valid law in the Ninth Circuit, Nevada has decided to no longer defend this case.[367][368] The Ninth Circuit heard oral arguments in Sevcik and two other cases, Jackson v. Abercrombie and Latta v. Otter, on on September 8.[366]
Latta v. Otter (Idaho)
Chief U.S. Magistrate Judge Candy Dale ruled that Idaho's exclusion of same-sex couples from marriage was unconstitutional. The ruling was appealed to the Ninth Circuit where a three-judge panel issued a stay pending appeal on May 20.[157][369][370] On May 30, state defendants asked the Ninth Circuit to hear the case initially en banc.[371] The Ninth Circuit denied that request on August 19,.[372] The Ninth Circuit heard oral arguments in Latta and two other cases, Jackson v. Abercrombie and Sevcik v. Sandoval, on on September 8.[366]

Tenth Circuit

Main article: Same-sex marriage in the Tenth Circuit
Burns v. Hickenlooper (Colorado)
The plaintiffs filed in U.S. district court on July 1, 2014, referencing the Tenth Circuit's decision in Kitchen v. Herbert.[373] The main defendants, the state governor and attorney general, agreed that the court should issue an injunction declaring the state's same-sex marriage ban unconstitutional, but wanted a stay until the U.S. Supreme Court rules on same-sex marriage.[374] Judge Raymond P. Moore stayed further proceedings pending the resolution of Kitchen, enjoinded state officials from enforcing the ban, and issued a temporary stay of that injunction to allow for an appeal.[375] The state defendants immediately filed a notice of appeal[376] and the Tenth Circuit issued a stay on August 21 pending the resolution of other cases.[377]

Eleventh Circuit

Brenner v. Scott (Florida)
Two same-sex marriage cases, Brenner v. Scott and Grimsley v. Scott, were consolidated on April 21, 2014. On August 21, 2014, U.S. District Judge Robert Lewis Hinkle found that the state's constitutional and statutory bans on same-sex marriage violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. He stayed enforcement of a preliminary injunction that would have prevented Florida from enforcing its bans.[378][379]

Federal district courts

Alabama
Searcy v. Bentley
Plaintiffs filed on May 7, 2014, seeking recognition of their out-of-state marriage and step-parent adoption for their minor daughter. In mid-June, attorneys for the same-sex couple filed a motion for summary judgement; the state defendants have filed a motion to dismiss.[380]
Hard v. Bentley
A plaintiff filed suit on February 13, 2014, asking to be listed on his deceased partner's death certificate as surviving spouse.[381]
Aaron-Brush v. Bentley
A plaintiff couple filed their suit on June 10, 2014, seeking recognition of their out-of-state marriage.[382]
Alaska
Hamby v. Parnell
Filed on May 12, 2014,[383] expert reports and pretrial motions are due October 1, 2014. Parties indicated that a trial is not necessary.[384]
Arizona
Connolly v. Roche and Majors v. Jeanes
In Connolly, plaintiff same-sex couples filed their motion for summary judgment on April 29, 2014, and briefing concluded on June 23.[385] The cases were not consolidated but assigned to the same judge, the visiting Senior U.S. District Judge John W. Sedwick.[386]
On July 7, 2014, plaintiffs and defendants filed a joint status report to Judge Sedwick indicating that it would be best to resolve Majors via summary judgment, pending the outcome of the Ninth Circuit decision in the same-sex marriage cases of Latta, Sevcik, and Jackson.[387][388] On September 12, U.S. District Judge John Sedgwick ordered that the state record a death certificate for plaintiff George Martinez as the husband of Fred McQuire.[389]
Arkansas
Jernigan v. Crane
Same-sex marriage case filed in Little Rock on July 15, 2013. On July 16, 2014 attorneys for the plaintiffs asked for a summary judgement of the case.[390][391]
Georgia
Inniss v. Aderhold
Same-sex marriage class-action lawsuit filed on April 22, 2014 in Atlanta.[392]
Michigan
Blankenship v. Snyder
Two women married in New York asked the court to order Michigan to recognize their marriage to allow the second-parent adoption of their children–one adopted, the other conceived via in vitro fertilization. Their complaint was filed on June 5, 2014; they had previously sought to intervene in DeBoer v. Snyder, another Michigan case before the Sixth Circuit.[393]
Missouri
Lawson and Dahlgren v. Kelly
Lawson was filed by the ACLU in state circuit court on June 24, 2014, on behalf of two same-sex couples who had been denied marriage licenses.[394] Attorney General Chris Koster intervened and had the case moved to federal court.[395] The case has been assigned to District Judge Ortrie Smith.
Montana
Ronaldo v. Fox
Same-sex marriage case filed in Great Falls on May 21, 2014.[396]
North Carolina
Fisher-Borne v. Smith
Originally a case dealing with second-parent adoption filed in 2012; proceedings were initially stayed pending a decision in Windsor, after which this case was amended to allow consideration of same-sex marriage. On June 2, 2014, a U.S. magistrate judge overseeing the case recommended another stay pending a decision by the Fourth Circuit Court of Appeals in Bostic v. Shaefer.[397] On July 28, 2014, following the ruling by the Fourth Circuit of Appeals that the same-sex marriage ban in Virginia is unconstitutional, North Carolina attorney general Roy Cooper announced he would stop defending the same-sex marriage ban in North Carolina.[398][399]
North Dakota
Ramsay v. Dalrymple
On June 6, 2014, private counsel filed a lawsuit in U.S. District Court in North Dakota on behalf of seven same-sex couples challenging the state’s ban on same-sex marriage.[400]
Pennsylvania
Palladino v. Corbett
Same-sex marriage case filed in Philadelphia on August 28, 2013. This case may be moot, however, since Whitewood v. Wolf, another Pennsylvania marriage case, may have decided the issue.
Puerto Rico
Conde v. Rius
Same-sex marriage lawsuit filed in San Juan in late March 2014.[401]
South Carolina
Bradacs v. Haley
On April 22, 2014, proceedings in this same-sex marriage case were stayed until the expected ruling in Bostic v. Shaefer in the Fourth Circuit Court of Appeals.
South Dakota
Rosenbrahn v. Daugaard
Five plaintiff couples, who filed suit on May 22, 2014, have valid out-of state marriages, and a sixth was denied a license in-state. On July 3, an attorney for the plaintiffs filed a motion for summary judgment, such a motion allows the court to rule on the case without a trial, where there is no issue as to the material facts. The attorney also filed a motion to allow the National Council for Lesbian Rights, a nonprofit LGBT advocacy organization, intervenor status in the case.[402][403]
Virginia
Harris class-action
This was certified as a class-action lawsuit on January 31, 2014. Two months later, proceedings were ordered stayed in Harris pending the outcome of Bostic v. Shaefer. The plaintiff same-sex couples in this case have been granted leave to intervene in Bostic as well.[404][405]
West Virginia
McGee v. Cole
This case, initially filed on October 1, 2013, survived a motion to dismiss in U.S. district court on January 29, 2014, with the court finding: "Doctrinal developments since Baker, however, do justify a finding that Baker is nonbinding."[406] On June 10, 2014, the district court ordered a stay of proceedings until there is a ruling in Bostic v. Shaefer.[407]

State courts

Note: In the United States, the name of the court where a civil complaint or a petition is initially filed, and the trial is held, varies by state. The following terms may be used: county court, circuit court, district court, and superior court.

Arkansas: Wright v. Arkansas

A circuit court judge issued a ruling on May 9, 2014, striking down the state constitution's same-sex marriage ban.[408][409] On May 15, 2014 the circuit judge clarified his order, striking down the statutory ban as well. The next day the Arkansas Supreme Court stayed enforcement of his ruing pending appeal.[410][411]

Colorado: Brinkman v. Long and McDaniel-Miccio v. Hickenlooper

Two same-sex marriage cases, Brinkman and McDaniel-Miccio, were combined for argument in the state's Seventeenth Judicial District. District Judge Scott Crabtree issued a ruling striking down Colorado's same-sex marriage ban. He held that the ban violates plaintiffs' guarantees of equal protection and due process.[412] Attorney General John Suthers appealed Judge Crabtree's ruling to the Colorado Supreme Court, which scheduled oral arguments for September 30, 2014.[413]

Florida: Pareto v. Ruvin and Huntsman v. Heavilin

Pareto v. Ruvin and Huntsman v. Heavilin are two state circuit court (i.e. trial-level) cases where Florida's ban on same-sex marriage has been found unconstitutional. Both decisions have been stayed and both are under appeal to the state Third District Court of Appeal. In Florida, an appeals court ruling is binding upon all of the circuit and county courts within the state of Florida.

Kansas: Nelson v. Kan. Dep't of Revenue

Same-sex marriage recognition case filed in state district court in Topeka, where the plaintiffs are seeking respect for their out-of-state marriage licenses in-state for the purpose of filing their taxes as a married couple.[414] The lawsuit seeks a court order requiring the revenue department to allow the couples to file joint income tax returns as married. Docketed as No. 13-C-1465 (Kan. Dist. Ct., Shawnee Co., Div. 7)[415][416]

Louisiana: In Re Costanza and Brewer

A lesbian couple who married in California sought to have their marriage recognized for the purpose of adoption. On February 5, 2014, Judge Edward Rubin ruled in for the plaintiffs in In Re Costanza and Brewer and authorized the adoption in a separate action,[417] without ruling on their challenge to Louisiana's ban on same-sex marriage. On September 22, Rubin found Louisiana's ban an unconstitutional violation of the equal protection, the due process, and the full faith and credit clauses of the U.S. Constitution.[19] He ordered the state to allow the plaintiffs to file a joint state income tax return and to allow their adoption to proceed. He enjoined the state from enforcing laws that "prohibit a person from marrying a person of the same sex".[418] State officials announced plans to appeal directly to the Louisiana Supreme Court[19] and he stayed enforcement of his ruling.[419]

Mississippi: Czekala-Chatham v. Melancon

Same-sex divorce case; dismissed for lack of jurisdiction on December 2, 2013 (Chancery Ct. Dist. 3). Appeal filed three weeks later in state appellate court; briefing was scheduled to conclude July 23, 2014.

Missouri: Barrier v. Vasterling

The ACLU filed Barrier in state circuit court on February 11, 2014, on behalf of eight same-sex couples, seeking recognition of their marriages established in other jurisdictions.[420] Circuit Judge J. Dale Youngs heard oral arguments on September 25, 2014.[421]

Nebraska Nichols v. Nichols

Same-sex divorce case filed in 2009; dismissed for lack of jurisdiction in August 2013. A petition for the case to be heard directly in the Nebraska Supreme Court was granted in March 2014. Oral arguments in the case, number S-13-0841, were heard before the state's highest court in Lincoln on May 28, 2014.[422] On June 13, 2014 the Nebraska Supreme Court dismissed the appeal saying it did not have jurisdiction, as the district court never issued a final order (Nichols, 288 Neb. 339). The trial judge and plaintiff are discussing the possibility of entering a proper final order, which could then be appealed.[423]

Texas: In re Marriage of J.B. and H.B.

A state district court granted a same-sex couple the divorce they filed for in 2009 and ruled the state's same-sex marriage ban unconstitutional as applied to this case. The Texas Courts of Appeals ruled that district courts do not have jurisdiction in such matters and reversed the decision. The Texas Supreme Court heard oral arguments were held on November 5, 2013.

Texas: In the Matter of the Marriage of A.L.F.L. and K.L.L.

On February 18, 2014, a same-sex couple, married in Washington D.C., filed a lawsuit for divorce and child custody.[424] On April 23, 2014, a state district court judge found Section 32 of the Texas Constitution and three portions of the Texas Family Code unconstitutional.[425] On April 25, 2014, Texas Attorney General Greg Abbott intervened to appeal the decision, and on May 28, 2014, the appellate court directed the district court to vacate its order because the state had not been notified that the plaintiffs were challenging the state constitution and statutes.[citation needed]

Wyoming: Courage v. Wyoming

Same-sex marriage case filed in state district court at Laramie on March 5, 2014. The plaintiffs filed a motion for summary judgment on July 1, 2014, asking the court to rule without a trial as there is no material dispute as to the facts in the case.

See also

Legislation
Organizations
Miscellaneous

Notes

  1. ^ These states are California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, 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, Mashantucket Pequot, Pokagon Band of Potawatomi Indians, Puyallup, Santa Ysabel Tribe, Leech Lake Band of Ojibwe and Suquamish
  3. ^ Utah,[2] Oklahoma,[3] Virginia,[4] Texas,[5] Michigan,[6] Idaho,[7] Oregon,[8] Pennsylvania,[9] Wisconsin,[10] Indiana,[11] Kentucky,[12] Colorado,[13] and Florida.[14]
  4. ^ Arkansas,[15] Texas,[16] Colorado,[17] Florida[18] and Louisiana[19]
  5. ^ Robicheaux v. Caldwell (Louisiana)[20]
  6. ^ Borman v. Pyles-Borman (Tennessee)
  7. ^ Obergefell v. Himes (Ohio)[21]
  8. ^ Geiger v. Kitzhaber (Oregon); Whitewood v. Wolf (Pennsylvania))
  9. ^ In Tanco v. Haslam, a U.S. district court ordered Tennessee to recognize the same-sex marriages of three plaintiff couples, but the Sixth Circuit Court of Appeals stayed that order. In Czekala-Chatham v. Melancon, a lesbian couple asks Mississippi to recognize their California marriage so they can divorce. There are two such divorce cases being litigated in Texas. In Hard v. Bentley, a man asks Alabama to recognize him as a widower as part of a wrongful death suit.
  10. ^ Among many examples: (1) the U.S. District Court ruling in Bourke v. Beshear, which required Kentucky to recognize same-sex marriages from Canada and several U.S. states, was decided on equal protection grounds alone. The plaintiffs had claimed that Kentucky's ban violated the full faith and credit clause, but the court found it unnecessary to address that argument.[36] and (2) the plaintiffs in Robicheaux v. Caldwell, who sought Louisiana's recognition of their out-of-state marriages, argued only on the basis of equal protection and due process. One of the Louisiana statutes they challenged made clear the state's assertion of its right to deny recognition to the legal act of another state: "A purported marriage between persons of the same sex violates a strong public policy of the state of Louisiana". (emphasis added) [37]
  11. ^ Other cases that sought review by the U.S. Supreme Court were Golinski v. Office of Personnel Management, Gill v. Office of Personnel Management, Massachusetts v. United States Department of Health and Human Services, and Pedersen v. Office of Personnel Management.[47][48][49]
  12. ^ 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 Attempts to establish same-sex unions via initiative or statewide referendum
  13. ^ In early 2013 the IRS recognized the community property and income of same-sex partners in community property states.[305]

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Bibliography

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