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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.
LGBTQ portal

Same-sex marriage, often called gay marriage, is a marriage between two persons of the same gender. The issue is a divisive political issue in the United States and elsewhere. The social movement to obtain the legal protections of civil marriage for same-sex couples began in the early 1970s, and the issue became a prominent one in U.S. politics in the 1990s.

The legal issues surrounding same-sex marriage in the United States are complicated by the nation's federal system of government. Traditionally, the federal government did not attempt to establish its own definition of marriage; any marriage recognized by a state was recognized by the federal government. With the passage of the Defense of Marriage Act in 1996, however, a marriage was explicitly defined as a union of one man and one woman for the purposes of federal law. Thus, no act or agency of the U.S. federal government currently recognizes same-sex marriage.

However, many aspects of marriage law affecting the day to day lives of inhabitants of the United States are determined by the states, not the federal government, and the Defense of Marriage Act does not prevent individual states from defining marriage as they see fit; indeed, most legal scholars believe that the federal government cannot impose a definition of marriage onto the laws of the various states by statute. Massachusetts has recognized same-sex marriage since 2004. Connecticut, Vermont, and California have created legal unions that, while not called marriages, are explicitly defined as offering all the rights and responsibilities of marriage under state law to same-sex couples. Maine, New Jersey, the District of Columbia, and Hawaii have created legal unions for same-sex couples that offer varying subsets of the rights and responsibilites of marriage under the laws of those jurisdictions.

In contrast, nineteen states have constitutional amendments explicitly barring the recognition of same-sex marriage, confining civil marriage to a legal union between a man and a woman. Forty-three states have statutes defining marriage to two persons of the opposite-sex, including some of those that have created legal recognition for same-sex unions under a name other than "marriage."

On October 25, 2006, the New Jersey Supreme Court ruled that gay couples have the same rights as heterosexual couples. It left it to the legislature, however, to decide if this would be in the form of marriages or some other type of civil union. This is of particular significance because, unlike Massachusetts, New Jersey does not have a law banning non-residents from marrying if the marriage would not be recognized in their home state.

Opponents of same-sex marriage have attempted to prevent individual states from recognizing such unions by amending 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 Republican-controlled Senate Judiciary Committee, on a party line vote, and was debated by the full United States Senate, but was ultimately defeated in both houses of Congress.[1]

The debate

Gay rights organizations

Evan Wolfson, the director of the Freedom to Marry coalition, contends that banning gay and bisexual Americans from legally marrying the one they romantically love constitutes "discrimination." He states that same-sex marriage would promote equality and fairness among all Americans by allowing same-sex couples to have the same legal protections as afforded to married, opposite-sex couples.

Gay families also deserve health care, retirement protections, the ability to use scarcely needed funds to afford education or a home and the ability to give kids the security to openly and proudly describe their families. This would make our nation stronger.
yogo

Conservative publications

A writer of The Weekly Standard, Stanley Kurtz, a fellow at the Hudson Institute, blames same-sex marriage in the Netherlands for an increase in parental cohabitation contracts. He asserts that same-sex marriage has detached procreation from marriage in the Dutch mind and would likely do the same in the United States.

Using anecdotal evidence, such as a Dutch man and two women who entered a cohabitation agreement together, and a small Unitarian Church group that advocates polygamy, Stanley states that allowing a monogamous same-sex marriage will create a social disorder that will eventually lead to polygamy.

...the American media are correct to report that the majority of Dutch citizens have accepted the innovation (same-sex marriage). The press has simply missed the meaning of that public shift. Broad Dutch acceptance of same-sex marriage means that marriage as an institution has been detached from parenthood in the public mind. That is why the practice of parental cohabitation has grown so quickly in the Netherlands. By the same token, the shoulder shrug that followed the triple wedding (cohabitation) story shows that legalized group marriage in the Netherlands is now a real possibility.

Liberal publications

Christopher Ott, a reporter for The Progressive, has characterized the social conservatives' predictions of legalized polygamy in states such as Massachusetts that have same-sex marriage as false. He confronts the common argument that same-sex marriage would devalue marriage as a whole by referencing other historical events such as allowing women to vote and stating that it did not devalue the electoral process. Ott describes the prohibition of same-sex marriage as devaluing the American principle of equal treatment.

...you also have to wonder if he and other opponents to equal rights really understand the consequences of the amendments they support. Do they really want gay and lesbian couples separated at the emergency room door in the event of an accident or illness? Do they really think long-term couples should be denied the right to make medical or end-of-life decisions, which married couples take for granted? Do they really think that kids should be denied health coverage by one parent's health insurance because the law treats them as strangers? Do they really think it's fair for gay and lesbian people to pay the same taxes as everyone else, but to be denied the hundreds of rights, benefits and protections of marriage? Do they really think that a gay and lesbian couple that has been together for 50 years does not deserve the protections that non-gay newlyweds enjoy from day one?

Groups supporting and opposing same-sex marriage

See also: Blessing of same-sex unions in Christian churches

It is supported by an assortment of groups and individuals. Those supporting same-sex marriage include the Human Rights Campaign; the late Coretta Scott King; the mayors of several large cities such as Boston, Los Angeles, San Francisco, Salt Lake City, Chicago, Seattle, and New York; the American Civil Liberties Union; the American Psychiatric Association; Reform Judaism; the United Church of Christ; and the Unitarian Universalist religion. Several political parties such as the Communist Party USA,[2] the Socialist Party USA,[3] U.S. Green Party, the United States Libertarian Party and several state Democratic Parties also support gay marriage.

Those supporting the creation of a separate but equal legal status for same-sex couples in the form of civil union or domestic partnership legislation include some state governors such as those of Washington, Oregon, California, New Mexico, and Connecticut, the national Democratic Party.[4] Some also support enacting reciprocal beneficiary legislation that would give some of the same legal rights as marriage but not all. They include the state governor of Utah, and Focus on the Family.

Groups that oppose giving a legal status to same-sex marriages include the American Family Association, Family Research Council, Southern Baptist Convention,[5] the Presbyterian Church USA,[6] the Seventh-day Adventist Church,[7] the Southern Baptist Convention,[8] the Hutterite Brethren,[9] the Conservative Mennonite Conference[10] the Evangelical Methodist Church,[11] Unification Church, the Moral Majority, the Christian Voice, the Christian Coalition, Focus on the Family, The Church of Jesus Christ of Latter-day Saints, the Orthodox Church in America,[12] the Rabbinical Council of America,[13] the Union of Orthodox Jewish Congregations of America (OU),[13] the Church of God (Anderson, IN),[14] a majority of the Republican Party, and the Roman Catholic Church.

Advocates of same-sex marriage generally hold that marriage and its benefits should not be denied to same-sex couples, and that such a denial infringes one or more of their rights as American citizens. Critics of same-sex marriage generally hold that marriage should be defined as only consisting of a union of one man and one woman, a so-called "traditional marriage," and that no rights exist that should compel a state to recognize any relationships to the contrary of that definition.

Many people make a distinction between same-sex marriage and civil unions, which would provide same-sex couples some legal rights. Although only about 4 in 10 Americans think gay and lesbian people should be allowed to marry, there is larger support for permitting civil unions [citation needed]. All in all, over half of Americans support some type of legal recognition for same-sex couples who wish to make a long-term commitment. Forty percent think same-sex couples' relationships ought to have no legal recognition.[15]

Opposition correlated with level of religious attendance, older age, Republican Party affiliation and residing in the southern states. Levels of support were higher among the young, non-church going, Democratic Party affiliated and those who lived in the Western states as well as New England. On July 4, 2005, the General Synod of the United Church of Christ endorsed a same-sex marriage resolution making the UCC the first major U.S. Christian denomination to approve same-sex marriages.

In some states, particularly in New England and some western states, a majority of people have expressed support for same-sex marriage. A Massachusetts poll conducted in October 2003 estimated that 59 percent of registered voters believed that gay or lesbian couples should have the right to enter into civil marriage.[16] Previous polls in Hawaii, California and New Jersey have shown majorities supporting same-sex marriage. However, it should be noted that in states where the issue was put to voters, the amendments almost always passed with a greater margin than was previously indicated in polls. That being said, it is a good possibility that even in Massachusetts, it is unclear whether or not a majority actually favors same-sex marriage.

Polls

The most recent national poll on same-sex marriage in the United States was conducted in June 2006 by ABC News. The poll found that the majority (58%) of Americans remained opposed to same-sex marriages, while the minority (36%) support them. However, on the question of a constitutional amendment, more are now opposed than for it. The majority (51%) of Americans say the issue should be left for the states to decide, while 43% would agree with amending the Constitution.[17]

Prior to this poll, Gallup conducted a poll on the issue through May 2006. The poll found opposition to same-sex marriage had fallen slightly, as other polls found a sharper dip. In the poll, when asked if marriages between homosexuals should be recognized by law as valid, with the same rights as traditional marriages, 58% (down 1 point from Aug 2005, and 9 points from March 1996) of Americans responded that they should not be recognized. 39% (up 2 points from Aug 2005, and 12 points from 1996) felt same-sex marriages should be recognized by law. If "homosexuals" is replaced with "same-sex couples", 42% back same-sex marriage while 56% oppose it.

A similar poll conducted in March of 2006, a Princeton Survey Research Associates / Pew Research Center poll concluded 39% of Americans support same-sex marriage, while 51% oppose it, and 10% were undecided. In December 2004, a poll by the same company found 61% of Americans opposed - with 38% "strongly opposed". Now, less than 2 years later, just 23% are "strongly opposed". However, an identical poll taken by the same group in June 2006 found a rise in those opposed to same-sex marriage, with 56% disapproving of the practice.

The most recent poll prior to this also showed opposition to gay marriages had fallen. An Opinion Dynamics / Fox News poll released April 06th of 2006. According to this poll, 55% of Americans oppose same-sex marriage, 33% support it, and 11% are unsure of where they stand.

CNN/USA Today/Gallup Poll. April 29-May 1, 2005. Adults nationwide.

"Do you think marriages between homosexuals should or should not be recognized by the law as valid, with the same rights as traditional marriages?" N=492, MoE ± 5 (Form A)

In the following table, "Y" means "Should Be Valid"; "N" means "Should Not Be Valid"; and "U" means "Unsure".

Poll Date Y N U
4/29-5/1/2005 39 56 5
3/18-3/20/2005 28 68 4
7/19-7/21/2004 32 62 6
3/5-3/7/2004 33 61 6
2/16-2/17/2004 32 64 4
2/6-2/8/2004 36 59 5
12/2003 31 65 4
10/2003 35 61 4
6/2003 39 55 6
1/2000 34 62 4
2/1999 35 62 3
3/1996 27 68 5

CBS

CBS News poll conducted February 24-28, 2005[18] asking:

  • "Which comes closest to your view? Gay couples should be allowed to legally marry. OR, Gay couples should be allowed to form civil unions but not legally marry. OR There should be no legal recognition of a gay couple's relationship."
Legal marriage Civil union No recognition Unsure
All political parties 23% 34% 41% 2%
  Republicans 8% 37% 54% 1%
  Democrats 29% 35% 34% 2%
  Independents 30% 29% 37% 4%
Trend over time
November 18-21, 2004 21% 32% 44% 3%
July 11-15, 2004 28% 31% 38% 3%
May 20-23, 2004 28% 29% 40% 3%
March 10-14, 2004 22% 33% 40% 5%
  • The same CBS News Poll highlighting regional, political party affiliations and age differences in views. May 20 - 23, 2004. Nationwide:
Demographic Marriage Civil union No recognition
All 28% 29% 40%
Republicans 13% 33% 53%
Democrats 32% 28% 36%
Independents 37% 27% 33%
18-29 years 43% 32% 25%
30-44 29% 25% 44%
45-64 26% 29% 41%
65 & older 12% 32% 51%
Northeast 35% 31% 33%
Midwest 26% 23% 47%
South 23% 26% 48%
West 31% 36% 28%

Pew Research

The Pew Research Center/Pew Forum on Religion & Public Life survey poll[18] asking:

  • "Do you strongly favor, favor, oppose, or strongly oppose allowing gays and lesbians to marry legally?" (Margin of error three percent)
Date Favor Oppose Unsure
July 13-17 2005 36% 53% 11%
December 1-16, 2004 32% 61% 7%
August 5-10, 2004 29% 60% 11%
July 2004 32% 56% 12%
March 2004 32% 59% 9%
February 2004 30% 63% 7%
November 2003 30% 62% 8%
October 2004 30% 58% 12%
  • "Do you strongly favor, favor, oppose, or strongly oppose allowing gay and lesbian couples to enter into legal agreements with each other that would give them many of the same rights as married couples? (Margin of error three percent)
Date Favor Oppose Unsure
July 13-17, 2005 53% 40% 7%
August 5-10, 2004 48% 45% 7%
July 2004 49% 43% 8%
March 2004 49% 44% 7%
October 2003 45% 47% 8%

Pew has since done another study in March 2006 and found that only 51% oppose gay marriage, with 39% supporting it, and the level of "strongly opposing" gay marriage has fallen from 42% to 28%.[19]

Federal-Level

File:SSM NorthAm 2006.PNG
Status of same-sex union laws in North America.

In the United States, proponents of equal marriage rights for same-sex couples observe that there are over 1,049 federal laws in which marital status is a factor, as well as state and private benefits (family memberships, discounts, etc) denied same-sex couples by excluding them from participating in marriage. A legal denial of federal rights or benefits, they say, directly contradicts the 14th Amendment of the US Constitution which provides for equal protection and substantive due process under the law: rights conferred to one person cannot be denied to another.

In the 2003 case before the Supreme Court of the United States titled Lawrence v. Texas, the court held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. Many proponents of same-sex marriage believe that this ruling, especially when combined with the 1967 ruling in Loving v. Virginia that eliminated anti-miscegenation laws, paves the way for a subsequent decision invalidating state laws prohibiting same-sex marriage. However, these proponents often do not mention, or are not aware, of the United States Supreme Court's summary affirmance in the case of Baker v. Nelson 409 U.S. 810. This decision, binding on all lower federal courts, clearly distinguishes Loving, and establishes the right of the individual States to uphold traditional opposite-sex marriage.

Challenges to DOMA have already been rejected by several federal courts, including a decision by Judge James S. Moody in the case of Wilson v. Ake. Most legal experts expect these challenges to fail.

Some opponents of same-sex marriage, wanting to ensure that the constitutionality of such laws cannot be challenged in the courts under the Full Faith and Credit clause, Equal Protection Clause or Due process clause of the United States Constitution, have proposed a Federal Marriage Amendment to the constitution that would prevent the federal government or any state from providing a marriage or the legal incidents thereof to a same-sex couple, whether through the legislature or the courts.

The amendment was debated in the United States Senate, but on July 14, 2004, a procedural motion to end debate failed by a wider-than-expected margin of 48 votes to 50. [2] This effectively prevented the amendment from facing a full Senate vote.

Also in 2003, lesbian comedian Rosie O'Donnell's court case with ex-colleagues raised another new issue when O'Donnell's life partner, Kelli, was forced to testify against O'Donnell. Under United States law, spouses cannot be forced to testify against each other; but because same-sex couples are not allowed to marry, they are denied this courtroom right, part of a long list of benefits of marriage in the United States. They married on February 26, 2004 in San Francisco, but this was later nullified by the California Supreme Court.

As of April, 2006, California same-sex couple Arthur Smelt and Christopher Hammer had a marriage-rights case pending in the federal Ninth Circuit Court of Appeals. Gay-rights groups including the Lambda Legal Defense and Education Fund and the American Civil Liberties Union did not support the lawsuit, on the grounds that it is likely to lose in the Supreme Court and set an unfavorable precedent. The Court eventually tossed out the suit in the spring of 2006, saying that the couples must wait for a ruling by the Appeals Court in California.[20]

State-Level

Outside of Massachusetts, where same-sex marriage is legal, Vermont, California, District of Columbia and Connecticut are the only U.S. states to offer same-sex couples all or some of the state-level rights and benefits of marriage. They do not use the word "marriage", however, but call such unions civil union or domestic partnership.

Hawaii, Maine, and New Jersey have domestic partnership and reciprocal benefit laws provide similar benefits, but stop short of full equality on a state level. On October 25, 2006 the NJ Supreme Court ruled this inequality unconstitutional, and gave the legislature 180 days to correct it.

There are also bills in both chambers of the New York State legislature that would extend marriage rights to same-sex couples. These bills were introduced in early 2003 and are currently still in committee.

In all cases, no rights that originate with the federal government attach to civil union, domestic partnership, etc., because the several states do not have jurisdiction over the Government of the United States.

Impact of Foreign Laws

The legalization of same sex-marriages across all of Canada (see same-sex marriage in Canada) has raised questions about U.S. law, due to Canada's proximity to the U.S. and the fact that Canada has no citizenship or residency requirement to receive a marriage certificate (unlike the Netherlands and Belgium). Canada and the U.S. have a history of respecting marriages contracted in either country.

Immediately after the June 2003 ruling legalizing same-sex marriage in Ontario, a number of American couples headed or planned to head to the province in order to get married. A coalition of American national gay rights groups issued a statement asking couples to contact them before attempting legal challenges, so that they might be coordinated as part of the same-sex marriage movement in the United States.

At present, same-sex marriages are recognized nationwide in the Netherlands (and possibly Aruba), Belgium, Spain, New Zealand (Civil Unions with essentially all marriage rights) and Canada. On 1 December, 2005, South Africa’s Constitutional Court extended marriage to include same-sex couples which will go into effect by December 2006. Same-sex marriages are also recognized in parts of other countries.

Latvia and Uganda[3] have amended their constitutions to prohibit same-sex marriage, and Nigeria is planning to do the same.

Legislative Action on Same-Sex Unions

Federal-Level

In 1996, the United States Congress passed and President Clinton signed Public Law 106-199, the Defense of Marriage Act.

The Act defines "marriage" and "spouse" for purposes of federal law.

The impact of the second part of the Act is less clear. Traditionally, states have been allowed to regulate the marital status of their own citizens. A narrow interpretation of the Act only codifies this policy. The Act was arguably passed out of concern that same-sex couples from all over the U.S. would fly to Hawaii, get married, and demand recognition in their home states (although Hawaii ultimately never allowed same-sex marriage).

A broad reading of the Act would allow states to refuse to recognize same-sex marriages of non-citizens, as well. For example, a same-sex couple from Massachusetts might get married in Massachusetts, and later move to another state, where the state would have no obligation to recognize the marriage. The Act may also mean that the state could refuse to recognize the marriage even if the couple were only passing through transiently (relevant, for example, in emergency medical decision-making), and not moving permanently. Either of these broader readings would be an exception to the Full Faith and Credit Clause.

State-Level

Efforts to Enable Same-Sex Unions

Votes by state legislatures to recognize various types of same-sex unions, sorted by date:

State Date Type of same-sex union Senate Lower house Governor signed or vetoed Final
outcome
Yes Yes No No Yes Yes No No Yes Signed No Vetoed
Hawaii 1996 Domestic Partnership Passed Failed - No No
Hawaii 1997 Reciprocal Beneficiary Relationship Passed Passed Signed Yes Yes
California 1999 Domestic Partnership 22 14 41 36 Signed Yes Yes [4]
District of Columbia 2000 Domestic Partnership Passed Passed Signed Yes Yes
Vermont April 2000 Civil Union 19 11 79 68 Signed Yes Yes
California 2001 Domestic Partnership (expansion) 23 11 41 32 Signed Yes Yes [5]
California 2003 Domestic Partnership (expansion) 23 14 41 33 Signed Yes Yes [6]
New Jersey January 2004 Domestic Partnership 23 9 41 28 Signed Yes Yes
Maine April 2004 Domestic Partnership 19 14 84 58 Signed Yes Yes
Utah February 2005 Reciprocal Beneficiaries Relationship 10 18 - - - No No
Connecticut April 2005 Civil Union 27 9 85 63 Signed Yes Yes
Maryland May 2005 Domestic Partnership 31 16 83 50 Vetoed No No [7]
California June 2005 Same-Sex Marriage - - 37 36 - No No [8]
Oregon July 2005 Civil Union 19 10 - - - No No [9]
California September 2005 Same-Sex Marriage 21 15 41 35 Vetoed No No [10]
Colorado November 2006 Domestic Partnerships (Citizen Referendum) - - - -
  • ^ Granted limited rights.
  • ^ Expanded rights included.
  • ^ Gave domestic partnerships legal rights of married couples.
  • ^ Maryland Governor vetoed legislation; a veto override would require two-thirds support.
  • ^ The vote failed to receive the absolute majority (41 votes) required to pass.
  • ^ The bill failed to come to a floor vote in the House of Representatives.
  • ^ California Governor vetoed legislation; a veto override would require two-thirds support.

Efforts to Ban Same-Sex Marriage / Civil Unions* / Domestic Partnerships* by Constitutional Amendment

The following table shows all popular vote results regarding state constitutional amendments banning same-sex marriage, and in some cases civil unions and domestic partnerships. The Hawaii amendment is different in that it does not ban same-sex marriage, but grants the legislature authority to ban same-sex marriage (which the legislature had already done).

State Date Yes Yes vote No No vote Final outcome
Far West:
Alaska November 1998 68% (152,965) 32% (71,631) Yes Yes
Hawaii November 1998 69% (285,384) 31% (117,827) Yes Yes [11]
West:
Nevada November 2002 67% (337,183) 33% (164,555) Yes Yes
Montana November 2004 67% (295,070) 33% (148,263) Yes Yes
Oregon November 2004 57% (1,028,546) 43% (787,556) Yes Yes
Utah November 2004 66% (593,297) 34% (307,488) Yes Yes
Arizona November 2006 N/A N/A N/A
Colorado November 2006 N/A N/A N/A
Idaho November 2006 N/A N/A N/A
Midwest:
Nebraska November 2000 70% (450,073) 30% (189,555) Yes Yes [12]
Missouri August 2004 71% (1,055,771) 29% (439,529) Yes Yes
Michigan November 2004 59% (2,698,077) 41% (1,904,319) Yes Yes
North Dakota November 2004 73% (223,572) 27% (81,716) Yes Yes
Ohio November 2004 62% (3,329,335) 38% (2,065,462) Yes Yes
Oklahoma November 2004 76% (1,075,216) 24% (347,303) Yes Yes
Kansas April 2005 70% (414,106) 30% (178,018) Yes Yes
Wisconsin November 2006 N/A N/A N/A
South Dakota November 2006 N/A N/A N/A
South:
Louisiana September 2004 78% (618,928) 22% (177,103) Yes Yes [13]
Arkansas November 2004 75% (753,770) 25% (251,914) Yes Yes
Georgia November 2004 76% (2,454,912) 24% (768,703) Yes Yes [14]
Kentucky November 2004 75% (1,222,125) 25% (417,097) Yes Yes
Mississippi November 2004 86% (957,104) 14% (155,648) Yes Yes
Texas November 2005 76% (1,718,513) 24% (536,052) Yes Yes
Alabama June 2006 81% (734,746) 19% (170,399) Yes Yes
South Carolina November 2006 N/A N/A N/A
Tennessee November 2006 N/A N/A N/A
Virginia November 2006 N/A N/A N/A

Possible future efforts to ban same-sex marriage through constitutional amendment

State Date Description
Lower 48:
Minnesota 2007 Failed to be brought up for a vote in state senate, likely to be re-introduced next year.
North Carolina 2007 Introduced in legislature three times, failed to leave committee. Likely to be re-introduced next year.
California 2008 Several signature drives underway to put the measure on the ballot in 2008.
Florida 2008 Failed to receive enough signatures to be on ballot in 2006, courts have cleared the way for the issue to go on the 2008 ballot.
Indiana 2008 Already passed both chambers of the state legislature, must do so again to be on the ballot in 2008.
Iowa 2008 Failed to pass the state senate. Likely to be re-introduced.
Massachusetts 2008 Signature drive in 2005 successful. The amendment must be approved by 25% of the state legislature in two consecutive sessions to qualify for 2008.
Pennsylvania 2009 State senate and assembly could not agree on the wording, preventing the issue from going to voters in 2007. The earliest it could be voted on is 2009.
  • ^ Does not explicitly ban same-sex marriage; allows the legislature to define marriage.
  • ^ On October 06, 2004, a Louisiana state judge tossed out the approved amendment saying it had more than one purpose: banning not only same-sex marriage, but other forms of partner recognition, such as civil unions. Shortly after, the Louisiana Supreme Court ruled the amendment valid. [17]
  • ^ Ban declared unconstitutional on May 16th, 2006 by Fulton County Superior Court Judge Constance C. Russell saying it violated the single-subject rule in Georgia's constitution. Governor Sonny Perdue said he was disappointed by the decision, which he said ran contrary to the voice of Georgia voters. The following day, the ruling was appealed to the Supreme Court of Georgia. On July 6, 2006, the Georgia Supreme Court ruled that the ban did not violate the single-subject rule.[18] [19]

Efforts to Ban Same-Sex Marriage / Civil Unions* / Domestic Partnerships* by Statuatory Initative

The following consists of votes by statuatory initiatives that ban same-sex marriage and/or civil unions and domestic partnerships:

State Date Yes Yes vote No No vote Description Final outcome
West:
California March 2000 61% (4,618,673) 39% (2,909,370) Proposition 22. Amend the Family Code to say: Only marriage between a man and a woman is valid or recognized in California. Full Results [20] YesYes [21]
  • ^ There is still an on-going debate on whether or not the adoption of Prop 22 only prohibited California from recognizing same-sex marriages performed in other states.
  • ^ In March, 2005, Judge Richard Kramer ruled there appeared to be no rational state compelling interest in limiting marriage to heterosexual couples. His ruling was appealed to the California Court of Appeal for the 1st District, which upheld Proposition 22 on October 5, 2006.
State Date Yes Yes vote No No vote Description Final outcome
Rocky Mountain Region:
Colorado November 1992 53% 47% Prevent any city, town or county in the state from taking any legislative, executive, or judicial action to protect homosexual citizens from discrimination, nor entitle any person or class of persons to have or claim any minority status (Amendment 2) Full Wording NoNo [22]
Colorado November 2006 N/A N/A Prevent same-sex couples from being able to register as domestic partnerships? (Failed to qualify for ballot) N/A
New England:
Maine February 1998 51% (145,452) 49% (138,153) Reject the new law that would protect people from discrimination in employment, housing, education public accommodations and credit based on their sexual orientation? Full Results Yes Yes
Maine November 2000 50% (318,846) 50% (314,012) Reject the new law that would protect people from discrimination in employment, housing, education public accommodations and credit based on their sexual orientation? Full Results Yes Yes
Maine November 2005 45% (181,926) 55% (223,274) Reject the new law that would protect people from discrimination in employment, housing, education public accommodations and credit based on their sexual orientation? Full Results Yes No
Pacific Northwest:
Oregon November 2000 47% (702,572) 53% (788,691) Prohibits public school instruction encouraging, promoting, sanctioning homosexual, bisexual behaviors Full Results No No
  • ^ On January 15, 1993, District Court Judge Jeffrey Bayless issued a temporary injunction, preventing Amendment 2 from becoming part of the state constitution. Before the trial occurred, on July 19, 1993, the Colorado Supreme Court ruled the injunction valid, on the grounds that Amendment 2 violated the equal protection clause of the Fourteenth Amendment to the United States Constitution. The Court sent it back to trial demanding it receive "strict scrutiny". Bayless ruled the amendment unconstitutional. On October 11, 1994, the Colorado Supreme Court upheld the ruling. The U.S. Supreme Court ruled 6-3 on May 20th, 1996, that it violated the constitution.

The 2004 presidential election

In the 2004 presidential election campaign, legal recognition of same-sex unions became a major issue. Incumbent George W. Bush, the Republican Party candidate supported banning marriages between those of the same-sex on a federal level, through the Federal Marriage Amendment (FMA), while supporting state-sanctioned civil unions, reciprocal benefits, or domestic partnerships. Challenger John F. Kerry, the Democratic Party candidate took a similar position supporting the ban of marriages between same-sex couples on a state level while supporting civil unions, reciprocal benefits, and domestic partnerships. However, Kerry opposed the FMA.

During the 2004 Republican National Convention GOP platform called for a ban on all forms of legal recognition of same-sex unions. President George W. Bush disagrees with that specific part of the party platform, calling it "wrong." After his re-election, President Bush indicated to the Washington Post that he saw little prospect for Congressional passage of the Federal Marriage Amendment to the federal Constitution banning marriages between same-sex couples unless the Defense of Marriage Act were ruled unconstitutional.

Strong opposition to gay marriage was arguably a significant factor in helping Bush get re-elected, particularly because Kerry was from Massachusetts, the state where gay marriage had just been legalized. Several states passed constitutional amendments defining marriage on election day, including Ohio. Nevertheless, in some states Bush received more votes than the ban on same-sex marriage, indicating some of those who voted for him also voted against banning same-sex marriage. The number of voters citing moral values as a deciding issue in their vote remained the same as in the 2000 according to exit polls.

Same-sex marriage state by state

File:OutMagazineCover.jpg
Out Magazine covers the marriage of Bob Paris and Rod Jackson in March 1994

Alaska

February 27, 1998: The Alaska Superior Court judge Peter Michalski rules in favor of plaintiffs Jay Brause and Gene Dugan, saying that choosing a marital partner is a fundamental right that cannot be denied by the state without a compelling reason.

November 3, 1998: The state's voters amend their constitution to require that all marriages be between a man and a woman.

Arizona

1975: Two men from Phoenix, Arizona are granted a marriage license by a county clerk on January 7. The Arizona Supreme Court, citing the Bible, voided and revoked the marriage licence. The state legislature passed a bill specifically defining marriage as being between a man and a woman.[23]

September 2006: The Arizona Supreme Court ruled that a proposition that would amend the state constitution defining marriage would be allowed on the ballot. [24]

California

Main article: Same-sex marriage in California

Colorado

1975: Clela Rorex, county clerk of Boulder County, Colorado, allowed six same-sex couples to wed, after receiving an advisory opinion from the district attorney's office indicating that the state's laws did not explicitly prohibit it. [25]A law was quickly pushed through to prohibit gay marriages.

Connecticut

Main article: Same-sex marriage in Connecticut

District of Columbia

  • Unresolved

Georgia

6 July, 2006 Ban upheld: The state Supreme Court reversed a lower court's ruling, deciding unanimously that the ban did not violate Georgia's single-subject rule for ballot measures. The ban had been approved by 76 percent of voters in 2004.

Hawaii

1996: The Hawaii State Supreme Court rules that prohibiting same-sex couples from marrying may violate Hawaii's constitutional equal protection clause and can only be upheld if prohibition is justified by a compelling reason. (Baehr v. Miike, 80 Hawai`i 341) [26]

1998: Hawaii's voters amend their Constitution to allow state legislature to restrict marriage to men and women only -- an invitation that the Hawaiian legislature immediately accepted -- rendering the equal protection clause moot. [27]

Maryland

Main article: Same-sex marriage in Maryland

Massachusetts

Main article: Same-sex marriage in Massachusetts

Minnesota

1971: The Minnesota Supreme Court rules against the contention of plaintiffs Jack Baker and Mike McConnell that absence of a specific prohibition on same-sex marriage signified a legislative intent to recognize them. The court found that "The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis". [28] This decision was appealed to the United States Supreme Court (see Baker v. Nelson), but was dismissed for failure to present a federal question. Such a dismissal constitutes a holding that the claimed Federal right-- a Constitutional mandate to treat same-sex and opposite-sex couples identically-- does not exist.

Nebraska

May 12, 2005: A federal judge in Omaha struck down Nebraska's sweeping ban on same-sex marriages, civil unions, domestic partnerships, and other same-sex relationships.

July 14, 2006: The 8th U.S. Circuit Court of Appeals reinstated the ban.

New Jersey

Main article: Same-sex marriage in New Jersey

October 25, 2006: New Jersey's Supreme Court held, "Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed samesex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to samesex couples, whether marriage or some other term, is a matter left to the democratic process." The legislature was given 180 days to enact equal rights under the name of "marriage" or under some other equal scheme.

New Mexico

February 20, 2004: Victoria Dunlap, county clerk of Sandoval County, New Mexico, announces that she would begin issuing same-sex marriage licenses because New Mexico marriage law does not mention gender.[29] The first same-sex marriages in Sandoval County are performed later the same day. By the end of the day, however, New Mexico state attorney general Patricia Madrid issued an opinion stating that the licenses were "invalid under state law," and the Sandoval County clerk's office stops issuing them. In the interim, 26 such licenses had been issued.

The state governor, Bill Richardson, has requested that the state legislature enact a civil union bill.

New York

Main article: Same-sex marriage in New York

Ohio

March 24, 2005: Two judges rule that Ohio's 25-year-old domestic violence law cannot be used against unmarried heterosexual couples because of Ohio's new constitutional amendment banning gay marriage.

Oklahoma

May 13, 2004: A lesbian couple from Tulsa obtained a marriage application in the Cherokee tribal headquarters in Tahlequah, Oklahoma. The Cherokee Nation issues marriage applications, rather than licenses. Couples obtaining a license have it signed by the individual performing the ceremony before returning to tribal court to have the application certified. Cherokee Principal Chief Chad 'Corntassel' Smith stated that he believes that same-sex marriages are not allowed under Cherokee law, and the Cherokee Nation Tribal Council unanimously approved language that defined a union as between one man and one woman.

July, 2005: The tribe's Judicial Appeals Tribunal upheld the couple's right to marry, confirming that if they should refile for certification, it would be granted. [21] Although Oklahoma does not recognize same-sex marriages performed in other states, Oklahoma does recognize all Cherokee marriages. It is unclear how Oklahoma would react if the Cherokee tribal courts decide that this marriage is valid.

Oregon

File:20040303pdxorusa.jpg
Over four hundred same-sex marriage licenses were distributed in Multnomah County.

Main article: Same-sex unions in Oregon

Puerto Rico

1998: The island territory of Puerto Rico ratified a Defense of Marriage Act (DOMA) in 1998.

Rhode Island

May 17, 2004: Attorney General Patrick C. Lynch issues an advisory opinion that Rhode Island would recognize any legal marriage performed in another state, as long as the marriage is not contrary to the "strong public policy" of Rhode Island. He said that the legislature and courts should decide which types of marriages fall within that category, while adding that same-sex marriages are not included among the types of marriages currently proscribed. While his opinion does not have the force of law, it appears to indicate that Rhode Island would, in fact, recognize valid same-sex marriages performed in Massachusetts or elsewhere.

September 29, 2006: Massachusetts Superior Court Justice Thomas E. Connolly ruled "that same-sex marriage is... not prohibited in Rhode Island". In his ruling,[22] Justice Connolly wrote:

No evidence was introduced before this Court of a constitutional amendment, statute, or controlling appellate decision from Rhode Island that explicitly deems void or otherwise expressly forbids same-sex marriage; and, after an exhaustive search, this Court has found no such prohibitory law. (page 8)

South Dakota

In November 2006, a vote will be held to ban same-sex Marriage, despite the fact that South Dakota was one of the first states to ban same-sex marriage, which has been enforced since 1996. However, the courts have since upheld the Defense of Marriage Act. In addition to banning gay marriage the proposed amendment would block civil unions, domestic partnerships, and all "quasi-marital" relationships.

A Mason-Dixon poll shows 47 percent of likely voters oppose the amendment and 46 percent support it with 7 percent undecided [30].

Tennessee

In November, 2006, a vote will be held on the Tennessee Marriage Protection Amendment, which would render same-sex marriages unconstitutional in Tennessee.

Utah

2005:

Utah Governor Jon Huntsman, Jr. proposed reciprocal benefits for all same-sex couples living in the state. The measure was defeated in the state Senate by 8 votes and he has promised to revisit the issue in 2006. In the meantime Salt Lake City Mayor Rocky Anderson, a same-sex marriage supporter, has created domestic partnerships for city employees.

Previously in 2004, a constitutional amendment was passed defining civil marriage to be limited to opposite-sex couples. It was approved by 66% of voters, a much lower than expected number in what analysts had thought would be a more socially conservative state. Two counties: Grand County and Summitt County rejected it outright while the state's most populated county with 1,000,000 residents, Salt Lake County narrowly approved it by less than 4%.

The amendment defines marriage as "... the legal union between a man and a woman. No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect." Many believe that the second part of the amendment is the reason why only 66% of voters approved the amendment. Nonetheless, other states with similar language such as Louisiana had 78% of the voters vote in favor of the bans. In the aftermath when the state governor introduced legislation creating reciprocal benefits some national religious conservative groups called on members nationwide to e-mail the Utah state legislature against the proposal. Polls conducted by the Salt Lake Tribune and the Deseret News, the two major daily Utah newspapers found a simple majority of Utah residents support some form of legal recognition for same-sex couples, but not same-sex marriage.

The U.S. Census found that same-sex couples in Utah have among the highest percentage in the U.S. raising children together.

In 2006 the LDS Church stepped up its campaign against same-sex marriage by mailing letters to congregations asking them to lobby Congress for the Federal Marriage Amendment.

Vermont

1999: Vermont Supreme Court rules that same-sex couples are entitled, under the state's constitution, to all of the protections and benefits provided through marriage.

2000: The legislature passes a law creating civil unions for same-sex couples, giving them all rights and benefits of marriage under Vermont law.

Washington

Main article: Same-sex marriage in Washington

Wisconsin

March 5, 2004: The Wisconsin State Assembly approved, by a vote of 68-27, a state constitutional amendment to ban same-sex marriages or civil unions, and to counter efforts elsewhere to legalize such partnerships.

March 12, 2004: The Wisconsin State Senate voted 20-13 to pass that state's amendment, which must still be passed again in next year's legislature, and be voted on in a state-wide referendum. [31]

December 6, 2005: The Wisconsin State Senate voted a second time in favor of the amendment. The vote is 19-14 and is along party lines.

February 28, 2006: The Wisconsin State Assembly voted for the second time in favor of the amendment. The question will appear on the November 7, 2006 ballot.

July 2006: The amendment is in a dead-heat, with the latest poll showing only a slight advantage for amendment supporters [32].

Case law

United States case law regarding the rights of homosexual persons:

  • Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (affirming that same-sex marriage does not make one a "spouse" under the Immigration and Nationality Act)
  • Standhardt v. Superior Court ex rel. County of Maricopa, 77 P.3d 451 (Ariz. Ct. App. 2003) (no state constitution right to same-sex marriage)
  • Rosengarten v. Downes, 806 A.2d 1066 (Conn. 2002) (state will not recognize Vermont civil union)
  • Burns v. Burns, 560 S.E.2d 47 (Ga. Ct. App. 2002) (recognizing marriage as between one man and one woman)
  • In re Estate of Hall, 707 N.E.2d 201, 206 (Ill. App. Ct. 1998) (no same sex marriage will be recognized; petitoner claiming existing same-sex marriage was not in a marriage recognized by law)
  • Morrison v. Sadler, 2003 WL 23119998 (Ind. Super. Ct. 2003) (Indiana's Defense of Marriage Act is found valid)
  • Frandsen v. County of Brevard, 828 So. 2d 386 (Fla. 2002) (State constitution will not be construed to recognize same-sex marriage; sex classifications not subject to strict scrutiny under Florida constitution)
  • In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002) (a post-op male-to-female transgendered person may not marry a male, because this person is still a male in the eyes of the law, and marriage in Kansas is recognized only between a man and a woman)
  • Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973) (upholding a Kentucky law defining marriage)
  • Jennings v. Jennings, 315 A.2d 816, 820 n.7 (Md. Ct. App. 1974) ("marriage is between only one man and one woman.")
  • Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) (upholding a Minnesota law defining marriage)
  • Lewis v. Harris, (New Jersey Supreme Court) (New Jersey is required to extend all rights and responsibilities of marriage to same-sex couples, but prohibiting same-sex marriage does not violate the state constitution; legislature has 180 days from October 25, 2006 to amend the marriage laws or create a "parallel structure.")
  • Storrs v. Holcomb, 645 N.Y.S.2d 286 (N.Y. App. Div. 1996) (New York does not recognize or authorize same-sex marriage) (this ruling has since been changed, New York does recognize same-sex marriages performed in other states)
  • In re Estate of Cooper, 564 N.Y.S.2d 684 (N.Y. Fam. Ct. 1990)
  • De Santo v. Barnsley, 476 A.2d 952 (Pa. Super. Ct. 1984)
  • Singer v. Hara, 522 P.2d 1187 (Wash. App. 1974)
  • Andersen v. King County, 2006 (Washington Supreme Court) (Washington's Defense of Marriage Act does not violate the state constitution)
  • Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995)

Notes

  1. ^ Senate blocks same-sex marriage ban, CNN, June 7, 2006, (Accessed July 5, 2006)
  2. ^ ELECTION PLATFORM 2004, Communist Party USA, 2004. (Accessed July 5, 2006)
  3. ^ Socialist Party Platform: Human Rights, Socialist Party USA, 2004. (Accessed July 5, 2006)
  4. ^ Democratic Party 2004 Platform
  5. ^ [1]
  6. ^ Homosexuality, Presbyterian General Assemblies. (Accessed July 5, 2006)
  7. ^ THE SEVENTH-DAY ADVENTIST CHURCH AND HOMOSEXUALITY, ReligiousTolerance.org (Accessed July 5, 2006)
  8. ^ Kastensmidt, Sam, SBC Officially Opposes “Homosexual Marriage” The Southern Baptist Convention, June 26, 2003. (Accessed July 5, 2006)
  9. ^ Hutterites take rare political stand against gay marriage, CBC News, February 18, 2005. (Accessed July 5, 2006)
  10. ^ CMC Statement on Homosexuality, Comservative Mennonite Conference. (Accessed July 5, 2006)
  11. ^ Williamon, Edward W., Is America witnessing the end of marriage?, The Evangelical Methodist Church. (Accessed July 5, 2006)
  12. ^ On Marriage, Family, Sexuality, and the Sanctity of Life, Orthodox Church in America. (Accessed July 5, 2006)
  13. ^ a b Same-Sex Marriage, Rabbinical Council of America. (Accessed July 5, 2006)
  14. ^ Resolution Regarding Same-Sex Marriage, The Church of God General Assembly Resolution, 2004. (Accessed July 5, 2006)
  15. ^ Poll: Few Favor Same-Sex Marriage, CBS/Associated Press, March 15, 2004. (Accessed July 5, 2006)
  16. ^ http://www.uua.org/news/2003/freedomtomarry/PollMemoOct29.pdf.
  17. ^ Buchanan, Wyatt, Resistance to same-sex marriage drops across U.S, San Francisco Chronicle, March 24, 2006. (Accessed July 5, 2006)
  18. ^ a b Law and Civil Rights, PollingReport.com. (Accessed July 5, 2006)
  19. ^ Less Opposition to Gay Marriage, Adoption and Military Service, The Pew research Center, March 22, 2006. (Accessed July 5, 2006)
  20. ^ Kravets, David, Two paths toward one goal: same-sex marriage, Associated Press, April 2, 2006.
  21. ^ http://www.gaywired.com/article.cfm?section=9&id=6803
  22. ^ http://www.glad.org/marriage/Cote-Whitacre/9_29_06.pdf

References

Bibliography

  • Wolfson, Evan (2004). Why Marriage Matters: America, Equality, and Gay People's Right to Marry. New York: Simon & Schuster. ISBN 0-7432-6459-2.
  • Chauncey, George (2004). Why Marriage?: The History Shaping Today's Debate over Gay Equality. New York: Basic Books. ISBN 0-465-00957-3.
  • Dobson, James C. (2004). Marriage under Fire: Why We Must Win This War. Sisters, Or.: Multnomah. ISBN 1-59052-431-4.

See also

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