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Same-sex marriage in the United States

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File:Samesexmarriage.jpg
Same-sex marriage ceremony

Same-sex marriage, also referred to as gay marriage, is marriage between two persons of the same sex. The federal government of the United States does not recognize the marriages of same-sex couples and is prohibited from doing so by the Defense of Marriage Act. Same-sex marriage is legal in three states as a result of court rulings and in two others--as well as the District of Columbia--through votes in their respective legislatures. As of February 2011, same-sex marriages were legal in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and Washington, D.C., along with Coquille Indian Tribe in Oregon.

State that previously granted same-sex marriage licenses:

  • In California, same-sex marriages were performed between June 16, 2008, and November 4, 2008, after the California Supreme Court held the statutes limiting marriage to opposite-sex couples violated the state constitution; however, the California electorate then approved California Proposition 8, a voter initiative that made the ban part of California's constitution. The California Supreme Court upheld the voter-approved constitutional ban in Strauss v. Horton, 207 P.3d 48 (Cal. 2009), holding that same-sex couples have all the rights of heterosexual couples, except the right to the "designation" of marriage and that such a holding does not violate California's privacy, equal protection, or due process laws.[1] Proposition 8 then was challenged in federal court in Perry v. Schwarzenegger. On August 4, 2010, a federal judge ruled that California's ban on same-sex marriage was unconstitutional,[2][3] and stayed his ruling.[4][5] On August 12, 2010, he ruled that marriages could resume on August 18, 2010, but the United States Court of Appeals for the Ninth Circuit stayed the ruling pending appeal.[6][7]

States that recognize same-sex marriage but have not granted same-sex marriage licenses:

  • In New York, Rhode Island, and Maryland, same-sex marriages are recognized, but not performed.[8][9][10] (Note that Maryland is expected to pass same-sex marriage legislation during the 2011 legislative session.)[11]

As of February 2011, 42 states expressly prohibit same-sex marriage; said prohibitions are contained either in state statutes or state constitutions.

The movement to obtain marriage rights and benefits for same-sex couples in the United States began in the early 1970s. The issue became even more prominent in U.S. politics in the mid-1990s with a public backlash toward the idea evidenced by Congress' passage of the 1996 Defense of Marriage Act. However, in the opening decade of the 21st century, public support for its legalization grew considerably.[12] A poll taken between August 6–10, 2010 found support for allowing same-sex marriage in the United States over 50% for the first time. 52% of respondents answered the federal government should give legal recognition to marriages between couples of the same sex (46% in 2009), 46% were against (53% in 2009).[13][14] New England has since became the center of an organized push to legalize same-sex marriage in the U.S., with four of the six states comprising that region granting same-sex couples the legal right to marry. The issue remains politically divisive in the United States.

Part of the LGBTQ 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
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 (DOMA) 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.)

DOMA has been under challenge in the federal courts, and 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 under the DOMA is unconstitutional, under the Tenth Amendment to the US Constitution.[15][16] This ruling is currently under a stay, but would affect residents residing within the federal district that covers Massachusetts if the stay is lifted. If this decision is appealed and affirmed, the ruling could apply elsewhere in the U.S. For now, no act or agency of the federal government—except within the state of Massachusetts if the stay is lifted—may recognize 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.

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.

The United States Supreme Court in 1972 dismissed Baker v. Nelson, a case originating in Minnesota, "for want of a substantial federal question". The Defense of Marriage Act, as well as marriage laws in 45 states, could be affected by the outcome of Perry v. Schwarzenegger, a case challenging the validity of California's Proposition 8 under the United States Constitution.[17]

State law

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)

Same-sex marriage is recognized only at the state level, as the federal Defense of Marriage Act explicitly bars federal recognition of such marriages.

Five state governments offer same-sex marriage: Massachusetts, Connecticut, Iowa, Vermont, and New Hampshire.[18] In all five states, same-sex marriage has been legalized through legislation and/or via court ruling.[18] As of November 2009, when legislation legalizing same-sex marriage in Maine was defeated by referendum, same-sex marriage had been defeated in all 31 states in which it had been directly put to a popular vote.[18] As of January 2011, 29 states had amended their state constitutions to prohibit same-sex marriage;[19] as of 2009, 13 others had prohibited same-sex marriage by statute.[20]

Same-sex marriage has been legal in Massachusetts since November 18, 2003; in Connecticut since October 10, 2008 (with Connecticut having previously legalized civil unions in October 2005);[21] in Iowa since April 27, 2009;[22][23] in Vermont since September 1, 2009; and in New Hampshire since January 1, 2010.

Opponents of same-sex marriage have worked to prevent individual states from recognizing same-sex unions by attempting to amend the United States Constitution to define marriage as a union between one man and one woman. In 2006, the Federal Marriage Amendment, which would prohibit states from recognizing same-sex marriages, was approved by the Senate Judiciary Committee on a party-line vote and was debated by the full United States Senate, but was ultimately defeated in both houses of Congress.[24]

The right to marry was first extended to same-sex couples by a United States jurisdiction on November 18, 2003 by a state Supreme Judicial Court ruling in Massachusetts.[25]

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.[26][27] 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.[28] Proposition 8 was passed on Election Day 2008, as were proposed marriage-limiting amendments in Florida and Arizona.[29] The California amendment was challenged in a court proceeding, but was upheld by the state supreme court in a 6–1 vote on May 26, 2009. The court ruled, however, that the approximately 18,000 same-sex marriages that took place in 2008 would remain valid. On October 12, 2009, Governor Schwarzenegger signed SB 54, which allowed all out-of-state same-sex marriages to be given the benefits of marriage under California law, although only those performed before November 5, 2008 will be granted the designation "marriage." On August 4, 2010, a decision by the US District Court in Perry v. Schwarzenegger ruled Proposition 8 unconstitutional.[30] This ruling is expected to affect all same-sex marriage bans in the United States. An appeal to the United States Court of Appeals for the Ninth Circuit was scheduled to be heard the week of December 6, 2010[31] with the case anticipated to be ultimately decided by the US Supreme Court.[32]

On October 10, 2008, the Connecticut Supreme Court overturned the state's civil-unions statute (2005), as unconstitutionally discriminating against same-sex couples, and required the state to recognize same-sex marriages.

Same-sex marriage was legalized in Iowa following the unanimous ruling of the Iowa Supreme Court in Varnum v. Brien on April 3, 2009.[33] This decision was initially scheduled to take effect on April 24, but the date was changed to April 27 for administrative reasons.[23]

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 became the fifth state to legalize same-sex marriage.[34] The legislation was overturned by referendum in November 2009.[18]

As of June 1, 2009, New Jersey has 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. California, Colorado, Hawaii, Maine, Maryland, Nevada, Oregon, Rhode Island, Wisconsin, Illinois 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. As of 2009, New Jersey only recognized same-sex marriages for the purpose of divorce; otherwise, out-of-state same-sex marriages are treated as civil unions under New Jersey law.[35] On December 7, 2009, the New Jersey Senate Judiciary Committee narrowly approved a bill to allow same-sex marriage, on a vote of 7 to 6.[36] The full Senate rejected the bill a month later, on January 7, 2010, on a vote of 20 to 14.[37]

On June 3, 2009, New Hampshire became the sixth state to legalize same-sex marriage.[38]

A same-sex marriage bill was signed into law by the Mayor of the District of Columbia on December 18, 2009;[39] same-sex marriage licenses became available in Washington, D.C. on March 3, 2010.[40]

As of January 1, 2009, thirty states have constitutional amendments explicitly barring the recognition of same-sex marriage, defining civil marriage as a legal union between a man and a woman.[41] More than forty states explicitly restrict 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", e.g., civil unions and domestic partnerships.[citation needed] Nineteen states ban any legal recognition of same-sex unions that would be equivalent to civil marriage.[42]

As of August 2010, same-sex marriage was legal in Massachusetts, Connecticut, Iowa, New Hampshire, Vermont, and Washington, D.C., as well as Coquille Indian Tribe in Oregon.

Some states, including New York, Rhode Island, and Maryland, recognize same-sex marriage licenses from other jurisdictions, but do not provide such marriage licenses within their own borders.[8][9][10] New York courts have ruled that same-sex marriages conducted in states where they are legal must be recognized by those states, but that the state statutes do not allow the issuance of same-sex marriage licenses.[43]

On February 17, 2011, the Maryland state Senate's Judicial Proceedings Committee approved SB116 for Senate vote.[44] The bill replaces the wording "a man and a woman" in Maryland's marriage statutes with "two individuals who are not otherwise prohibited from marriage". The bill also expressly permits religious officials to refuse to perform otherwise-legal marriages that are in opposition to their religious beliefs. Leaders of both majority and minority parties predicted passage in the Senate by a narrow margin, then easy passage through the more liberally-leaning House of Delegates, before the end of the 2011 legislative session.[11]

International recognition of marriages

Same-sex marriage conducted abroad is recognized in the U.S. States of New York, California, Rhode Island, and Maryland, and in Washington, D.C..

The nationwide legalization of same-sex marriage in Canada has raised questions about U.S. law, because of Canada's proximity to the U.S. and the fact that Canada has no citizenship or residency requirement to receive a marriage certificate (unlike Belgium and the Netherlands). 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 went or planned to go 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]

Debate

President Barack Obama has stated in the past that he is both for [45] and against same-sex marriage,[46] though he has recently stated that his current position is "evolving."[47] President Obama remains sympathetic to the rights of individuals who identify as gay or lesbian.[48] In a 1996 newspaper interview, Obama stated "I favor legalizing same-sex marriages, and would fight efforts to prohibit such marriages."[45] However, during the 2008 presidential campaign, Obama 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."[49] One report indicates that Obama may have made comments in support of same-sex marriage during his Illinois Senate race in the 1990s.[50] The president "supports full civil unions and federal rights for LGBT couples and opposes a constitutional ban on same-sex marriage,"[48] but stated in December, 2010 that these civil unions from the perspective of same-sex couples are "not enough." [47] President Barack Obama opposes a federal mandate for same-sex marriage, and also opposes the Defense of Marriage Act,[51] stating that individual states should decide the issue.[52][53] President Obama opposed Proposition 8—-California's constitutional ban on same-sex marriage-—in 2008.[54] President Obama has stated that he continues to personally wrestle with the issue of same-sex marriage.[47]

Many high-profile politicians and commentators have expressed their views on same-sex marriage. Glenn Beck and Rush Limbaugh are two of the most prominent conservative commentators based on recent listenership ratings.[55] 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?”[56]

During the 2008 presidential election campaign, then-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.”[57]

On his radio show in August 2010, Rush Limbaugh made the following comments on the recent decision by U.S. District Court Judge Vaughn Walker regarding Proposition 8 in California: “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.”[58] Commenting on the same court decision, former Speaker of the House Newt Gingrich issued a strong 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.”[59] By way of contrast, then-Speaker of the House of Representatives 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."[60] 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."[61] Openly gay 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."[62]

Rachel Maddow, an openly gay commentator on MSNBC, has expressed her frustration with the Obama Administration position on same-sex marriage in August 2010. In response to Senior White House Advisor David Axelrod’s statement on President Obama’s position: “The president does oppose same-sex marriage but he supports equality for gay and lesbian couples in benefits and other issues,” Maddow said, “Got that? So the line from the administration is that Barack Obama does not want gay people to be allowed to be married, but when gay people can be married and other people are trying to take away that right like in California, he doesn’t want the right to be taken away. But, he’s not in favor of that right in the first place. You got it? The president is against gay marriage but he is also against constitutional amendments to ban gay marriage, which means that he’d apparently prefer that gay marriage be banned through flimsier tactical means? That’s the president’s position. Clear as mud. Ripe for criticism much?”[63]

Advocacy groups have entered the same-sex marriage debate in recent years, including the National Organization for Marriage (NOM) and the Family Research Council (FRC), which is a designated hate group by the Southern Poverty Law Center.[64] NOM lists a number of strategies on its website for supporters to use, including the following statement: “Strong majorities of Americans oppose gay marriage. Supporters of SSM therefore seek to change the subject to just about anything: discrimination, benefits, homosexuality, gay rights, federalism, our sacred constitution. Our goal is simple: Shift the conversation rapidly back to marriage. Don’t get sidetracked. Marriage is the issue. Marriage is what we care about. Marriage really matters. It's just common sense.”[65] According to its website, the FRC opposes "the vigorous efforts of homosexual activists to demand that homosexuality be accepted as equivalent to heterosexuality in law, in the media, and in schools. Attempts to join two men or two women in 'marriage' constitute a radical redefinition and falsification of the institution, and FRC supports state and federal constitutional amendments to prevent such redefinition by courts or legislatures."[66] 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."[67]

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.[68] Fernando Espuelas argues that same-sex marriage should be allowed because same-sex marriage extends a civil right to a minority group.[69] According to an American history scholar Nancy Cott "there really is no comparison, because there is nothing that is like marriage except marriage."[70] Several mainstream social science organizations in the United States take the view that the stigma created by policies that they believe constitute differential treatment of gay men and women has severe psychological and social impacts; those organizations aver that defining marriage as an opposite-sex institution invites the public to discriminate against individuals who identify as gay or lesbian and has adverse effects on children raised by same-sex partners.[71]

Opposition

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

Opponents of same-sex marriage in the United States ground their arguments on parenting concerns, religious concerns, and concerns about a “slippery slope” leading toward other changes to the definition of marriage. The Southern Baptist Convention claims that extending marriage rights to same-sex couples would undercut the conventional purpose of marriage.[72] 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, argue 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.[73][74][75][76][77] 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.[78] Other arguments against same-sex marriage are based upon concerns about a "slippery slope" toward other redefinitions of the institution. Stanley Kurtz of the Weekly Standard has written that same-sex marriage would eventually lead to the legalization of polygamy in the United States.[79]

Marriage privatization

Main article: Marriage privatization

A libertarian argument for marriage privatization holds that government has no role in defining the terms whereby individuals contract to arrange their personal relationships, regardless of sexual orientation.[80][81][82] People holding this viewpoint argue that government should have a limited role or no role in defining marriage, only in enforcing those contracts people construct themselves and willfully enter. The rights granted to a married couple exceed those that can be mutually granted by two people to each other contractually, and also involve rights granted by government.[83][84][85]

Public opinion

Main article: Public opinion of same-sex marriage in the United States

Public support for same-sex marriage has grown. In 1996, 25% of Americans supported legalization. A May 2010 Gallup Poll found opponents of legalizing same-sex marriage outnumbered supporters in the United States, by 53% to 44% (59% to 37% in 2005). Opposition to same-sex marriage was tied for the lowest level shown in a Gallup poll.[86]

A poll taken between August 6–10, 2010 found growing support for allowing same-sex marriage in the United States. 52% of respondents answered the federal government should give legal recognition to marriages between couples of the same sex (46% in 2009), 46% were against (53% in 2009).[13][14]

Effects of same-sex marriage

Economic impact on same-sex couples

Dr. M. V. Lee Badgett, an economist and associate professor at the University of Massachusetts Amherst, has studied the impact of same-sex legal marriage on same-sex couples. According to a 1997 General Accounting Office study requested by Rep. Henry Hyde (R), at least 1,049 U.S. Federal laws and regulations include reference to marital status.[87] A later 2004 study by the Congressional Budget Office finds 1,138 statutory provisions "in which marital status is a factor in determining or receiving 'benefits, rights, and privileges.'"[88] Many of these laws govern property rights, benefits, and taxation. Same-sex couples are ineligible for spousal and survivor Social Security benefits.[88] Badgett's research finds the resulting difference in Social Security income for same-sex couples compared to opposite-sex married couples is US$5,588 per year. The federal ban on same-sex marriage and benefits through the 1996 Defense of Marriage Act (DOMA) extends to federal government employee benefits.[88] According to Badgett's work, same-sex couples face other financial challenges against which legal marriage at least partially shields opposite-sex couples.[89]

  • potential loss of couple's home from medical expenses of one partner caring for another gravely ill one[89]
  • costs of supporting two households, travel, or emigration out of the U.S. for an American citizen unable to legally marry a non-U.S. citizen[89]
  • higher cost of purchasing private insurance for partner and children if company is not one of 18% that offer domestic partner benefits[89]
  • higher taxes: unlike a company's contribution to an employee's spouse's health insurance, domestic partner benefits are taxed as additional compensation[88]
  • legal costs associated with obtaining domestic partner documents to gain some of the power of attorney, health care decision-making, and inheritance rights granted through legal marriage[89]
  • higher health costs associated with lack of insurance and preventative care: 20% of same-sex couples have a member who is uninsured compared to 10% of married opposite-sex couples[89]
  • current tax law allows a spouse to inherit an unlimited amount from the deceased without incurring an estate tax but an unmarried partner would have to pay the estate tax on the inheritance from her/his partner[88]
  • same-sex couples are not eligible to file jointly or separately as a married couple and thus cannot take the advantages of lower tax rates when the individual income of the partners differs significantly[88]

While state laws grant full marriage rights (Connecticut, Iowa, Massachusetts, New Hampshire and Vermont) or some or all of the benefits under another name (New Jersey, Washington, California, etc.), these state laws do not extend the benefits of marriage on the Federal level, and most states do not currently recognize same-sex marriages, domestic partnerships, or civil unions from other states.

One often overlooked aspect of same-sex marriage are the potential negative effects on same-sex couples. While the legal benefits of marriage are numerous, same-sex couples would face the same financial constraints of legal marriage as opposite-sex married couples. Such potential effects include the marriage penalty in taxation.[88] Similarly, while social service providers usually do not count one partner's assets toward the income means test for welfare and disability assistance for the other partner, a legally married couple's joint assets are normally used in calculating whether a married individual qualifies for assistance.[88]

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.[88]

Mental health

Based in part on empirical research that has been conducted on the adverse effects of stigmatization, 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.[71]

Several psychological studies[90][91][92] 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.[93]

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, afraid that they would lose custody of their children and that they might become victims of violence. 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.[94]

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.[95][96] 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.

Timeline of major events

  • October 10, 1972: The United States Supreme Court dismisses appeal in Baker v. Nelson "for want of a substantial federal question".[97]
  • May 5, 1993: The Supreme Court of Hawaii rules that statute limiting marriage to opposite-sex couples is presumed to be unconstitutional unless the state can show that it is (1) justified by compelling state interests and (2) narrowly drawn to avoid unnecessary abridgements of rights under the Hawaii Constitution. The case is sent back to the lower courts for a trial on these two issues.[98]
  • September 21, 1996: President Bill Clinton signs into law the Defense of Marriage Act, denying federal recognition of same-sex marriages.
  • December 3, 1996: A Hawaii trial court judge holds that no compelling interests support Hawaii's statute limiting marriage to opposite-sex couples. He stays the decision pending review by the Supreme Court of Hawaii.[99][100]
  • November 3, 1998: Hawaii voters pass a constitutional amendment to give the Hawaii State Legislature the power to reserve marriage to opposite-sex couples.[101] Voters in Alaska approve a state constitutional amendment defining marriage as the union of one man and one woman.[102]
  • December 9, 1999: In light of the constitutional amendment, the Supreme Court of Hawaii in Baehr v. Miike reverses the decision of the trial court and remands the case with instructions to enter judgment for the state.[103]
  • December 20, 1999: The Vermont Supreme Court holds that exclusion of same-sex couples from benefits and protections incident to marriage under state law violated the common-benefits clause of the Vermont Constitution.
  • November 2000: Voters in Nebraska approve Nebraska Initiative Measure 416, a state constitutional amendment defining marriage as the union of one man and one woman.[104]
  • November 2002: Voters in Nevada approve a state constitutional amendment defining marriage as the union of one man and one woman.[105]
  • November 18, 2003: The Massachusetts Supreme Judicial Court gives the state legislature 180 days to enact same-sex marriage.
  • February 11, 2004: The Massachusetts General Court (legislature) completes the first step in a process that would ban same-sex marriage. The process is not continued.
  • February 12 – March 11, 2004: San Francisco issues same-sex marriage licenses.
  • May 17, 2004: Same-sex marriage starts in Massachusetts.
  • August 12, 2004: The California Supreme Court rules that the San Francisco marriages are void.
  • August 3, 2004: Voters in Missouri approve a state constitutional amendment defining marriage as the union of one man and one woman.[106]
  • September 18, 2004: Voters in Louisiana approve a state constitutional amendment defining marriage as the union of one man and one woman.[107]
  • November 2004: Voters in Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon, and Utah approve state constitutional amendments defining marriage as the union of one man and one woman.[108]
  • April 5, 2005: Voters in Kansas, by a 70% to 30% margin, approve a state constitutional amendment defining marriage as the union of one man and one woman.[109]
  • May 12, 2005: Nebraska Initiative Measure 416 overturned by United States District Judge Joseph F. Bataillon as a unconstitutional violation of the Fourteenth Amendment's Equal Protection clause, and a bill of attainder in violation of Article I's Contract Clause.
  • September 29, 2005: California Governor Arnold Schwarzenegger vetoes a same-sex marriage bill.
  • November 8, 2005: Voters in Texas approve a state constitutional amendment defining marriage as the union of one man and one woman.[110]
  • June 6, 2006: Voters in Alabama approve a approve a state constitutional amendment defining marriage as the union of one man and one woman, with 81% of voters voting in favor.[111]
  • July 6, 2006: The New York Court of Appeals issues its decision in Hernández v. Robles, stating that same-sex partners do not have the right to marry under the New York Constitution.[112]
  • July 14, 2006: United States Court of Appeals for the Eighth Circuit rules that Nebraska Initiative Measure 416's limiting marriage to one man and one woman does not violate the Fourteenth Amendment's Equal Protection clause, and was not a bill of attainder in violation of Article I's Contract Clause, reversing Judge Joseph F. Bataillon's 2005 decision.
  • November 2006: Voters in Colorado, Idaho, South Carolina, South Dakota, Tennessee, Virginia, and Wisconsin approve state constitutional amendments defining marriage as the union of one man and one woman.[113][114]
  • October 12, 2007: California Governor Arnold Schwarzenegger vetoes same-sex marriage bill.
  • May 15, 2008: The Supreme Court of California overturns the state's ban on same-sex marriage.
  • June 16, 2008: Same-sex marriage starts in California.
  • September 10, 2008: HB436, a bill that seeks to "eliminates the exclusion of same gender couples from marriage", is submitted to the New Hampshire House of Representatives.
  • October 10, 2008: The Supreme Court of Connecticut orders same-sex marriage legalized.
  • November 4, 2008: Voters in Arizona, California, and Florida approve state constitutional amendments defining marriage as the union of one man and one woman.[115]
  • November 5, 2008: Proposition 8 takes effect in California, stopping new same-sex marriage licenses from being issued after this date.
  • November 12, 2008: Same-sex marriage starts in Connecticut.
  • March 26, 2009: HB436 supporting same-sex marriage passes the New Hampshire House of Representatives.
  • April 3, 2009: The Iowa Supreme Court legalizes same-sex marriage.
  • April 6, 2009: A same-sex marriage bill is passed by the Vermont General Assembly and then vetoed by the governor.
  • April 7, 2009: The Vermont General Assembly overrides the governor's veto of the same-sex marriage bill.
  • April 23, 2009: Connecticut governor signs legislation which statutorily legalizes same-sex marriage (see Oct. 10 and Nov. 12, 2008), and also converts any existing civil unions into marriages as of October 1, 2010.
  • April 27, 2009: Same-sex marriage starts in Iowa.
  • April 29, 2009: HB436 supporting same-sex marriage passes the New Hampshire Senate with minor amendments.
  • May 6, 2009: Maine Governor Baldacci signs Marriage Equality Bill. The New Hampshire House of Representatives concurs with the Senate's amendments to HB436, and the bill supporting same-sex marriage advances to Governor John Lynch.
  • May 12, 2009: A same-sex marriage bill passes in the lower house New York Assembly.
  • May 26, 2009: The California Supreme Court upholds Proposition 8, but also upholds the marriage rights of the 18,000 same-sex couples married while same-sex marriage had been briefly legalized.
  • June 3, 2009: The New Hampshire General Court passes new HB73, which includes protections for religious institutions, as required by Gov. John Lynch to secure his signature on HB436, a bill legalizing same-sex marriage. Gov. Lynch signs both bills the same day.
  • September 1, 2009: Same-sex marriage starts in Vermont.
  • September 11, 2009: Same-sex marriage was supposed to start on this day in Maine, but is subject to a People's Veto.
  • October 2, 2009: A Texas judge rules the state's same-sex marriage ban unconstitutional while presiding over the divorce proceedings for two gay Texans married in Massachusetts, clearing the way for both Texas's first same-sex divorce and a legal challenge to the same-sex marriage ban.[116]
  • October 11, 2009: California Governor Arnold Schwarzenegger signs into law recognition of out-of-state same-sex marriage.[117][118]
  • November 3, 2009: The same-sex marriage law passed in Maine is repealed by a People's Veto referendum.[18][119]
  • December 1, 2009: The Council of the District of Columbia passes same-sex marriage bill 11-2 in its first vote. The bill must pass a second vote on December 15 before it can go to Mayor Adrian Fenty for signature. Barring interference by the United States Congress within thirty legislative days after Mayor Fenty signs the bill, DC will allow same-sex marriage.[120]
  • December 2, 2009: Same-sex marriage legislation is defeated 38–24 in the New York State Senate.[121]
  • December 15, 2009: District of Columbia City Council passes same-sex marriage bill 11-2 in its second vote. The bill was signed by Mayor Fenty on December 18, 2009.[122]
  • January 1, 2010: Same-sex marriage starts in New Hampshire and all out-of-state same-sex marriages are given the benefits of marriage under California law, although only those performed before November 5, 2008 are granted the designation "marriage".[123]
  • February 24, 2010: Maryland's attorney general issues an opinion requiring the state to recognize same-sex marriages performed in other states.[124]
  • March 3, 2010: Same-sex marriage starts in Washington, D.C.[125]
  • July 8, 2010: Judge Joseph Tauro of the District Court of Massachusetts held in two related cases (Gill v. Office of Personnel Management and Massachusetts v. United States Department of Health and Human Services) that the denial of federal rights and benefits to lawfully married same-sex couples in Massachusetts under the Defense of Marriage Act is unconstitutional under the Fifth and Tenth Amendments to the U.S. Constitution.[15][16]
  • August 4, 2010: California's Proposition 8 is overturned by United States District Judge Vaughn R. Walker as an unconstitutional violation of the Fourteenth Amendment's Due Process and Equal Protection clauses.
  • August 31, 2010: The Fifth Court of Appeals in Dallas, Texas reverses a 2009 ruling in a same-sex divorce case, ruling that the Texas constitutional ban on same-sex marriage does not violate the Equal Protection Clause of the Fourteenth Amendment. The court further rules that district courts in Texas do not have subject-matter jurisdiction to hear a same-sex divorce case.[126]
  • October 12, 2010: The Department of Justice appealed against Tauro's July 8 decision (see above).[127]
  • February 23, 2011: Hawaii's governor Neil Abercrombie signed into law a bill that legalizes civil unions for same-sex couples. [128]
  • February 23, 2011: Defense of Marriage Act is declared unconstitutional by the Obama Administration.

Case law

United States case law regarding same-sex marriage:

  • 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) (ban on same-sex marriage was constitutional on the basis of gender discrimination; because the historical definition of marriage is between one man and one woman, same-sex couples are inherently ineligible to marry)
  • Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (affirming that same-sex marriage does not make one a "spouse" under the Immigration and Nationality Act)
  • De Santo v. Barnsley, 476 A.2d 952 (Pa. Super. Ct. 1984)(same-sex couples cannot undergo divorce proceedings because they cannot enter a common law marriage)
  • In re Estate of Cooper, 564 N.Y.S.2d 684 (N.Y. Fam. Ct. 1990)
  • Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (holding that statute limiting marriage to opposite-sex couples violates the Hawaii constitution's equal-protection clause unless the state can show that the statute is (1) justified by compelling state interests and (2) narrowly tailored, prompting a state constitutional amendment and the federal Defense of Marriage Act)
  • Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995)
  • Storrs v. Holcomb, 645 N.Y.S.2d 286 (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)
  • Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) (reversing 368 F. Supp. 2d 980 (D. Neb. 2005)) (Nebraska's Initiative Measure 416 does not violate Fourteenth Amendment's Equal Protection Clause, was not a bill of attainder, and does not violate the First Amendment; "laws limiting the state-recognized institution of marriage to heterosexual couples ... do not violate the Constitution of the United States")[129]
  • Lewis v. Harris, 908 A.2d 196 (N.J. 2006) (New Jersey is required to extend all rights and responsibilities of marriage to same-sex couples, but prohibiting same-sex marriage does not violate the state constitution; legislature given 180 days from October 25, 2006 to amend the marriage laws or create a "parallel structure")
  • Andersen v. King County, 138 P.3d 963 (Wash. 2006) (Washington's Defense of Marriage Act does not violate the state constitution)
  • Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) (New York State Constitution does not require that marriage be extended to same-sex couples)
  • Langan v. St. Vincent's Hospital, 25 A.D.3d 90, 802 N.Y.S.2d 476 (N.Y. App. Div. 2005), review denied, 850 N.E.2d 672 (N.Y. 2006) (denying survivor partner in Vermont officiated Civil Union standing as a "spouse" for purposes of New York's wrongful death statute)
  • Conaway v. Deane, 932 A.2d 571 (Md. 2007) (upholding state law defining marriage as between a "man" and a "woman")
  • Martinez v. County of Monroe, 850 N.Y.S.2d 740 (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 was refused leave to appeal on a technicality.[130])
  • 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.);[131] overruled by Strauss v. Horton, 207 P.3d 48 (Cal. 2009) (holding that same-sex couples have all the rights of heterosexual couples, except the right to the "designation" of marriage and that such a holding does not violate California's privacy, equal protection, or due process laws)[132] For a review see: Thomas Kupka, Names and Designations in Law, in: The Journal Jurisprudence 6 (2010) 121-130.
  • Varnum v. Brien, 763 N.W.2d 862, (Ia. 2009) (Barring same-sex couples from marriage, the court unanimously ruled, violates the equal protection provisions of the Iowa Constitution. Equal protection requires full marriage, rather than civil unions or some other substitute, for same-sex couples)
  • Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), (California's Proposition 8 (2008) violates fundamental right to marry under Loving v. Virginia, violates Due Process and Equal Protection Causes of the Fourteenth Amendment, and illegally discriminates on the basis of sexual orientation. Proposition 8 is driven only by animus against same-sex couples; therefore, does not survive rational basis review. Permanently enjoins CA from enforcing Prop 8; order stayed pending appeal to the US Ninth Circuit Court of Appeals)

See also

Legislation

Supporting organizations

Opposing organizations

References

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Bibliography

  • Chauncey, George (2004). Why Marriage?: The History Shaping Today's Debate over Gay Equality. New York: Basic Books. ISBN 0-465-00957-3.
  • Murdoch, Joyce and Deb Price (2001). Courting Justice: Gay Men and Lesbians v. the Supreme Court. New York, Basic Books. ISBN 0-465-01513-1.
  • Dobson, James C. (2004). Marriage Under Fire. Sisters, Or.: Multnomah. ISBN 1-59052-431-4. {{cite book}}: Unknown parameter |unused_data= ignored (help)
  • Wolfson, Evan (2004). Why Marriage Matters: America, Equality, and Gay People's Right to Marry. New York: Simon & Schuster. ISBN 0-7432-6459-2.
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