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According to the federal government's [[Government Accountability Office]] (GAO), [[Rights and responsibilities of marriages in the United States|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.
According to the federal government's [[Government Accountability Office]] (GAO), [[Rights and responsibilities of marriages in the United States|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.

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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.{{Fact|date=March 2008}}
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.{{Fact|date=March 2008}}

Revision as of 17:32, 18 December 2008

File:Samesexmarriage.jpg
Same-sex marriage ceremony

Same-sex marriage, also referred to as gay marriage, is a marriage between two persons of the same sex. Currently the federal government of the United States does not recognize same-sex marriage, under the Defense of Marriage Act, but same-sex marriage is currently legal in two states, Massachusetts and Connecticut[1]. The issue is a divisive political issue in the United States and elsewhere. The social movement to obtain the rights and responsibilities of marriages in the United States for same-sex couples began in the early 1970s, and the issue became a prominent one in U.S. politics in the 1990s.

Part of the LGBT rights series
Marriage

Recognized

Civil unions and
registered partnerships
Minimal recognition
See also
Notes
  1. KoN: Performed in the Netherlands proper, including the Caribbean Netherlands. Registered in Aruba, Curaçao and Sint Maarten in such cases, but the rights of marriage are not guaranteed.
  2. NZ: Neither performed nor recognized in Niue, Tokelau, or the Cook Islands.
  3. UK: Neither performed nor recognized in six British Overseas Territories.
  4. US: Neither performed nor recognized in some tribal nations. Recognized but not performed in several other tribal nations and American Samoa.
  5. Israel: Registered foreign marriages confer all marriage rights. Domestic common-law marriages confer most rights of marriage. Domestic civil marriage recognized by some cities.
  6. EU: 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. Cambodia: Recognition of a "declaration of family relationship", which may be useful in matters such as housing, but they are not legally binding.
  8. China: Guardianship agreements, conferring some limited legal benefits, including decisions about medical and personal care.
  9. HK: Inheritance, guardianship rights, and residency rights for foreign spouses of legal residents.
  10. India: Courts have recognised guru–shishya, nata pratha or maitri karar–type contractual relationships, but they are not legally binding.
  11. Japan: Some cities and prefectures issue partnership certificates, but they are not legally binding.
  12. Namibia: Marriages conducted abroad between a Namibian national and a foreign spouse recognized for residency rights.
  13. Romania: Hospital visitation rights through a "legal representative" status.
* Not yet in effect
LGBT portal

Legal issues

See also: Same-sex marriage legislation in the United States

Federal law

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, even if that marriage was not recognized by one or more other states (as was the case with interracial marriage before 1967 due to anti-miscegenation laws). With the passage of the Defense of Marriage Act in 1996, however, a marriage was explicitly defined as a union of one man and one woman for the purposes of federal law. (See 1 U.S.C. § 7.) Thus, no act or agency of the federal government currently recognizes same-sex marriage.

According to the federal government's Government Accountability Office (GAO), 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.

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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.[citation needed]

State law

See Same-sex marriage legislation in the United States by state

Same-sex marriages have been recognized in Massachusetts since November 18, 2003, and in Connecticut since October 10, 2008.[2] Same-sex marriage only has effect at the state level as the U.S. federal government does not recognize same-sex marriages as marriages under federal law, in accordance with the Defense of Marriage Act.

Vermont, New Jersey, and New Hampshire have created legal unions that, while not called marriages, are explicitly defined as offering all the rights and responsibilities of marriage under state (though not federal) law to same-sex couples. Maine, Hawaii, the District of Columbia, Oregon and Washington 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.

On May 15, 2008 the Supreme Court of California ruled that excluding same-sex couples from marriage is unconstitutional, effectively creating same-sex marriage in California.[3][4] Citing the 1948 California Supreme Court decision Perez v. Sharp, which reversed the interracial marriage ban, In re Marriage Cases struck down California's 1977 one-man, one-woman marriage law and a similar voter-approved 2000 law (which had passed 61%-39%) in a 4-3 ruling, written by Chief Justice Ronald George). The Advocates for Faith and Freedom and the Alliance Defense Fund, among other things, asked for a stay of the ruling,[5] but the court denied the requests on June 4, 2008.[6][7] In addition, the court clarified that its initial ruling was to take effect at 5:00 p.m. on June 16, 2008.[6]

The court ruling in California gave rise to considerable opposition locally and nationally.[8] Same-sex marriage opponents placed a constitutional amendment on the November ballot to define marriage as between a man and woman;[9] Florida and Arizona also placed constitutional bans on same-sex marriage on the November 2008 ballot, all of which passed,[10] though the California amendment is being challenged.

Some states that legally recognize same-sex relationships also recognize similar relationships contracted in other states, though those relationships are not recognized in states without such legal recognition.

In contrast, thirty[11] 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 restricting 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." A small number of states ban any legal recognition of same-sex unions that would be equivalent to civil marriage.[citation needed]

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.[12]

Currently, same-sex couples are suing for the right to marry in Iowa.[13][14] On August 30, 2007, Iowa Judge Robert Hanson temporarily annulled a law allowing marriage only between men and women before placing a stay the following day on his own ruling.[15]. The Iowa Supreme Court heard oral arguments in the case on December 9, 2008; a ruling is expected in 2009.

On October 10, 2008, the Supreme Court of Connecticut ruled that civil unions were discriminatory and the state must allow same-sex marriage under the equal protection clause of its constitution.[16]

Detailed summary : see Template:Same-sex legal relationships in USA

Impact of foreign laws

The nationwide legalization of same-sex marriage in Canada has raised questions about US law, due to Canada's proximity to the US 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.[citation needed]

At present, same-sex marriages are recognized nationwide in the Netherlands, Belgium, Spain, Canada, South Africa, and Norway (from January 1, 2009). Same-sex marriage conducted abroad is recognized in Israel, France, Aruba, Netherlands Antilles and the states of New Mexico, New York and Rhode Island.

Debate

U.S. same-sex union laws.
  Same-sex marriages
  Unions granting rights similar to marriage
  Unions granting limited/enumerated rights
  Foreign same-sex marriages recognized
  Statute bans same-sex marriage
  Constitution bans same-sex marriage
  Constitution bans same-sex marriage and other kinds of same-sex unions

Opposition

See Traditional marriage movement

Opposition to same sex marriage in the United States is associated by some with the religious right, though it is by no means limited to this group; social conservatives,[17][18] the Roman Catholic Church,[19][20] The Church of Jesus Christ of Latter-day Saints,[21] many Muslims,[22] and the Orthodox branch of Judaism[23][24] also support the "traditional", opposite-sex definition of marriage. Prominent Evangelical Christian opponents of same-sex marriage have included Pat Robertson, James Dobson and Jerry Falwell. Organizations that support a "traditional" definition of marriage include the Alliance Defense Fund, Alliance for Marriage, American Family Association, The Church of Jesus Christ of Latter-day Saints, Family Research Council, Focus on the Family, National Organization for Marriage, Orthodox Church in America, Rabbinical Council of America,[25] and the national Republican Party.[26]

Opponents of same-sex marriage argue that same-sex relationships are not marriages,[27] that same-sex marriage is contrary to the best interests of children because it deprives children of either a mother or a father,[28] that legalization of same-sex marriage will open the door for the legalization of polygamy,[29] or marriages between humans and non-human animals, such as goats,[30] and that legalization of same-sex marriage would erode religious freedoms.[31] Other opponents of same-sex marriage hold that same-sex marriage is contrary to God's will,[32][33] that it is unnatural,[34] that it encourages unhealthy behavior,[35] and that it harms the family structure of society. Still others argue that same-sex marriage would encourage individuals to act upon homosexual urges, when such individuals ought to instead seek help to overcome the temptation toward homosexual behavior.[33]

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

...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 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 [polyamory] story shows that legalized group marriage in the Netherlands is a real possibility.[36]

At least 41 states have statutes and/or constitutional provisions that prohibit same-sex marriage.[37]. In fact, no state has ever allowed gay marriage by popular election. Both Connecticut and Massachusettes allow gay marriage due to a ruling by the State Supreme Court.

Support

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.

The Economist magazine, while expressing support for the same sex marriage, argued that attempts to force same-sex marriage through the Supreme Court constitutes "yet another self-damaging act of judicial overreach". The magazine further argues that it is sensible for proponents of same-sex marriage to "concentrate on winning their battles in the court of public opinion and the chambers of the legislature."[38]

Additionally, the mayors of several large cities such as Atlanta[39], Boston[40], Chicago[41], Los Angeles[42], New York City[43], Salt Lake City[44], San Francisco[45], and Seattle[46] publicly supported same-sex marriage.

Other politicians who have announced their support for same-sex marriage include Massachusetts Governor Deval Patrick, former Alaska Senator Mike Gravel, former New York Governor Eliot Spitzer, New York Governor David Paterson, New Jersey Governor Jon Corzine, Ohio Congressman Dennis Kucinich, Wisconsin Senator Russ Feingold, former Vice President Al Gore, and Massachusetts Senator Ted Kennedy.

Several political parties such as the Communist Party USA,[47] U.S. Green Party, the Socialist Party USA,[48] and several state Democratic Parties, including the California Democratic Party,[49] the Iowa Democratic Party,[50] the Maine Democratic Party,[51] the Massachusetts Democratic Party,[52] and the Washington State Democratic Party[53] also support gay marriage.

Supporting civil unions or domestic partnerships

Those supporting the creation of a legal status for same-sex couples in the form of civil union or domestic partnership legislation include some state governors, such as those of California,[citation needed] Connecticut,[citation needed] New Mexico,[citation needed] Oregon,[citation needed] and Washington,[citation needed] the national Democratic Party,[54] and Republican President George W. Bush.[55][56][57]

Popular opinion

Further information: Same-sex marriage in the United States public opinion

Case law

United States case law regarding the spousal rights of gay or bisexual persons:

  • Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) (upholding a Minnesota law defining marriage)
  • Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973) (upholding a Kentucky law defining marriage)
  • Singer v. Hara, 522 P.2d 1187 (Wash. App. 1974)
  • Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (affirming that same-sex marriage does not make one a "spouse" under the Immigration and Nationality Act)
  • De Santo v. Barnsley, 476 A.2d 952 (Pa. Super. Ct. 1984)
  • In re Estate of Cooper, 564 N.Y.S.2d 684 (N.Y. Fam. Ct. 1990)
  • Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995)
  • 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 Hall, 707 N.E.2d 201, 206 (Ill. App. Ct. 1998) (no same sex marriage will be recognized; petitioner claiming existing same-sex marriage was not in a marriage recognized by law)
  • Baker v. State, 170 Vt. 194; 744 A.2d 864 (Vt. 1999) (Common Benefits Clause of the state constitution requires that same-sex couples be granted the same legal rights as married persons)
  • Rosengarten v. Downes, 806 A.2d 1066 (Conn. Ct. App. 2002) (Vermont civil union cannot be dissolved in Connecticut)
  • Burns v. Burns, 560 S.E.2d 47 (Ga. Ct. App. 2002) (recognizing marriage as between one man and one woman)
  • Frandsen v. County of Brevard, 828 So. 2d 386 (Fla. 2002) (State constitution will not be construed to recognize same-sex marriage; sex classifications not subject to strict scrutiny under Florida constitution)
  • In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002) (a post-op male-to-female transgendered person may not marry a male, because this person is still a male in the eyes of the law, and marriage in Kansas is recognized only between a man and a woman)
  • Standhardt v. Superior Court ex rel. County of Maricopa, 77 P.3d 451 (Ariz. Ct. App. 2003) (no state constitution right to same-sex marriage)
  • Morrison v. Sadler, 2003 WL 23119998 (Ind. Super. Ct. 2003) (Indiana's Defense of Marriage Act is found valid)
  • Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003) (denial of marriage licenses to same-sex couples violated provisions of the state constitution guaranteeing individual liberty and equality, and was not rationally related to a legitimate state interest.)
  • Lewis v. Harris, 908 A.2d 196 (N.J. 2006) (New Jersey is required to extend all rights and responsibilities of marriage to same-sex couples, but prohibiting same-sex marriage does not violate the state constitution; legislature given 180 days from October 25, 2006 to amend the marriage laws or create a "parallel structure.")
  • Andersen v. King County, 138 P.3d 963 (Wash. 2006) (Washington's Defense of Marriage Act does not violate the state constitution)
  • Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) (New York's marriage statutes do not permit same-sex marriage and are not unconstitutional).
  • Conaway v. Deane, 932 A.2d 571 (Md. 2007) (upholding state law defining marriage as between a "man" and a "woman,")
  • Martinez v. County of Monroe, 850 N.Y.S.2d 740 (N.Y. App. Div. 2008) (The court ruled unanimously that because New York legally recognizes out-of-state marriages of opposite-sex couples, it must do the same for same-sex couples. The county is seeking leave to appeal the decision.[2])
  • In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (The court ruled that limiting marriage to opposite-sex couples is invalid under the equal protection clause of the California Constitution, and that full marriage rights, not merely domestic partnership, must be offered to same-sex couples.)

See also

In general

In the United States

References

  1. ^ Gay Marriage Is Ruled Legal in Connecticut New York Times
  2. ^ State Supreme Court Legalizes Same-Sex Marriage Hartford Courant
  3. ^ California same-sex marriage ban struck down
  4. ^ Mintz, Howard (15 May 2008). "California Supreme Court legalizes same-sex marriage". Mercury News. Retrieved 2008-05-15.
  5. ^ California's top court legalizes gay marriage
  6. ^ a b "California Supreme Court Denies Rehearing and Stay in Marriage Cases" (PDF). 2008-06-04. Retrieved 2008-06-04.
  7. ^ latimes.com, California Supreme Court refuses to delay gay marriage
  8. ^ Statement by the Catholic bishops of CA; Patrick J. Buchanan, “Post-Christian America: Marriage ruling another streetlight on our ‘darkening path to perdition”
  9. ^ nytimes.com, Gay Couples Rejoice at Ruling
  10. ^ [1]Bans in 3 States on Gay Marriage
  11. ^ Number of statesNYTimes.com
  12. ^ Senate blocks same-sex marriage ban, CNN, June 7, 2006, (Accessed July 5, 2006)
  13. ^ Gay marriage decisions ripe in Calif., Conn., Stateline.org
  14. ^ Freedom to Marry | Maps, Freedom to Marry
  15. ^ BBC NEWS, Iowa judge approves gay weddings
  16. ^ Spencer, Mark (2008-10-10). "High Court Grants Gay Marriage Rights". Hartford Courant. Retrieved 2008-10-10. {{cite news}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
  17. ^ Home | National Organization for Marriage
  18. ^ Conservative Party of New York State
  19. ^ New York State Catholic Conference - The Official Public Policy Voice of the Catholic Conference of the Empire State
  20. ^ Catholic League: For Religious and Civil Rights
  21. ^ http://newsroom.lds.org/ldsnewsroom/eng/commentary/church-responds-to-california-supreme-court-same-sex-marriage-decision
  22. ^ http://www.irfi.org/articles/articles_151_200/same_sex_marriage_and_marriage_i.htm
  23. ^ Jewish Law - LawPolicy ("Agudath Israel of America - Policy Paper")
  24. ^ Caucus For America | Battling for the Soul of America
  25. ^ name="orthjew">Same-Sex Marriage, Rabbinical Council of America. (Accessed July 5, 2006)
  26. ^ "Republican Party 2004 Platform" (PDF).
  27. ^ http://www.savemarriageny.org/The%20Case%20Against%20Same-Sex%20Marriage%20and%20Civil%20Unions.pdf
  28. ^ NYFCF
  29. ^ http://www.nationformarriage.org/atf/cf/%7B39D8B5C1-F9FE-48C0-ABE6-1029BA77854C%7D/CatholicEnglish.pdf
  30. ^ http://mediamatters.org/items/200504150005
  31. ^ Banned in Boston
  32. ^ "The Religious Right and Anti-Gay Speech: Messengers of Love or Purveyors of Hate?". Matthew Shepard Online Resources.
  33. ^ a b http://www.apacny.net/The%20Christian%20Case%20Against%20Same-Sex%20Marriage.pdf
  34. ^ "Anti-Gay Backlashes Are on 3 States' Ballots". The New York Times. 1992-10-04. Retrieved 2008-06-06.
  35. ^ BalancedPolitics.org - Same Sex Marriages (Pros & Cons, Arguments For and Against)
  36. ^ "Stanley Kurtz Bangs Drum About Polyamory and Bisexuality". Poly Greens News. 2006-01-07.
  37. ^ ABC News: In First, N.Y. Judge Allows Gay Divorce
  38. ^ http://www.economist.com/world/na/PrinterFriendly.cfm?story_id=9441511
  39. ^ http://www.sovo.com/2004/12-31/news/localnews/mecca.cfm
  40. ^ http://brighton-community.blogspot.com/2008/03/mayor-menino-supports-zoning-rule-to.html
  41. ^ http://www.chicagopride.com/news/article.cfm/articleid/1324321
  42. ^ http://www.insidesocal.com/politics/2008/10/mayor-supports-fight-against-p.html
  43. ^ http://www.cnn.com/2006/LAW/05/30/ny.gaymarriage/index.html
  44. ^ http://www.cnn.com/2004/LAW/02/19/gay.marriage.impact.ap/index.html
  45. ^ http://ap.google.com/article/ALeqM5hZmLBrL36NObNyMR0ghXN7vB5hYwD945NQP80
  46. ^ http://seattle.gov/news/detail.asp?ID=4166
  47. ^ "Election Platform 2004". Communist Party USA. Retrieved 2006-07-05.
  48. ^ "Socialist Party Platform: Human Rights". Socialist Party USA. Retrieved 2006-07-05.
  49. ^ ""California Democrats Present Our Blueprint for the Golden State"" (PDF). California Democratic Party. Retrieved 2008-05-15.
  50. ^ "Iowa Democratic Party Platform". Iowa Democratic Party. Retrieved 2008-03-17.
  51. ^ "2006 MDP Platform". Maine Democratic Party. Retrieved 2008-03-17.
  52. ^ "Massachusetts Democratic Party Platform". Massachusetts Democratic Party. Retrieved 2008-03-17.
  53. ^ "Platform of the Democratic Party of Washington" (PDF). Washington State Democratic Convention. Retrieved 2008-03-17.
  54. ^ "Democratic Party 2004 Platform" (PDF). see page 42
  55. ^ Hunter, Melanie (27 October 2004). "Bush Tolerates Civil Unions, Thinks States Should Decide". Cybercast News Service. Retrieved 2008-03-07.
  56. ^ Bumiller, Elisabeth (26 October 2004). "Bush Says His Party Is Wrong to Oppose Gay Civil Unions". The New York Times. Retrieved 2008-03-07. {{cite news}}: Italic or bold markup not allowed in: |publisher= (help)
  57. ^ "Bush's gay union stance irks conservatives". Associated Press. 26 October 2004. Retrieved 2008-03-07.

Bibliography

External links

Supporting same-sex marriage

Opposing same-sex marriage

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