Same-sex marriage in the United States
| Part of the LGBTQ rights series |
 LGBTQ portal |
As of 2004, same-sex marriage is not legally recognized in any U.S. state. However, a campaign to change that fact has been taking shape since the 1970s.
More recent developments include the state of Vermont providing same-sex civil unions which are designed to be similar to marriage. In 2003, the Massachusetts Supreme Judicial Court issued a ruling demanding that the legislature pass a law authorizing same-sex marriages. In 2004 a few local government officials, most notably the city officials of San Francisco, started issuing marriage licenses to same-sex couples despite being in conflict with state laws.
Popular opinion
Various groups have battled over the legal issue since the late 20th century. A nationwide poll by Pew Research in July 2003 found opposition to same-sex marriage at 53 percent of respondents, while 38 percent said that they backed them, [1] while an October 2003 poll by the same group found opposition had risen to 59 percent and support fallen to 32 percent. Opposition, reportedly, continues to be centered among the conservative religious community.
On the other hand, a Massachusetts poll conducted in October 2003 found that 64 percent of voters in the state would agree, and only 34 percent would disagree with a court ruling by the Supreme Judicial Court of Massachusetts if the court ruled that couples of the same sex have a constitutional right to marry [2]. It also found that 59 percent of Massachusetts voters said same-sex couples should have the right to enter into civil marriage, while 35 percent disagreed.
On February 10, 2004, a majority of Americans in one poll (2 to 1 margin) responded that they did not want laws in their states that would legalize same-sex marriages. However in the same poll 49% of respondents stated that they were opposed to the idea of a constitutional amendment outlawing same-sex marriage (42% were in favor). The poll was taken after the Massachusetts Supreme Judicial Court ruling. [3]
There are also many groups actively fighting for and against legal recognition of same-sex marriage, proponents including traditional LGBT groups such as HRC, Lambda Legal and NGLTF, as well as groups that have been created around this single issue, such as Marriage Equality and Freedom to Marry.
Also, in the United States, proponents of equal marriage rights for same-sex couples observe that there are over 1,049 federal rights and benefits, as well as numerous 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 group 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 paves the way for a subsequent decision invalidating state laws prohibiting same-sex marriage. This raises the possibility of a challenge to the Defense of Marriage Act (DOMA) under the equal protection clause of the Fourteenth Amendment.
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 26th, 2004 in San Francisco.
Civil unions
Vermont is the only U.S. state to offer same-sex couples all of the state-level rights and benefits of heterosexual couples. Vermont does not use the word marriage, but calls such unions civil unions. Civil unions do not, however, provide the federal-level rights, benefits and protections that come with a civil marriage license. The history of the civil union law in Vermont is given in the civil union article.
California and New Jersey's domestic partnership laws provide similar benefits, but both stop short of full same-sex marriage.
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.
Federal law
In 1996, the federal Defense of Marriage Act (DOMA) was passed. This bill defines marriage as a "legal union between one man and one woman," refuses federal recognition to same-sex marriages, and allows U.S. states not to recognize same-sex marriages performed in other U.S. states (although no state currently offers same-sex marriage as an option) or other countries. Since then, various states have passed a law or changed their constitution to assert that they do not recognize same-sex unions, nor will they recognize such unions legally recognized in other states. These laws are sometimes referred to as "Mini-DOMAs."
Some opponents of same-sex marriage, fearing that such laws might be invalidated by the courts because of the "full faith and credit" 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.
Polls in the last few years have indicated roughly a 50-50 split on the issue, with some polls leaning toward a slight majority favoring an amendment. Since polls usually have a plus or minus 4% error margin, it's hard to call this a mandate. President George W. Bush announced his support for such an amendment on February 24, 2004. Some have speculated that in doing so President Bush was trying to create a wedge issue to cause political turmoil during an election year.
A December 2003 national CBS/New York Times poll indicated 55 percent national support for this amendment [4]. However, the validity of this study and the accuracy of the reporting of its results by The New York Times has been questioned [5].
International issues
Canada
The 2003 interim legalization of same-sex marriages in three Canadian provinces, and likely pending 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.
A number of American couples immediately headed or planned to head to Ontario in order to get married. A coalition of American national gay rights groups has 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.
Timeline
1971 Minnesota
The Minnesota Supreme Court rules against plantiffs Jack Baker and Mike McConnell contending 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". [6]
1975 Arizona
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 the marriage. The state legislature passed a bill specifically banning same-sex marriage. [7]
1975 Colorado
In 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. [8]
1987 Washington, DC
The American Civil Liberties Union commits to eliminating legal barriers against same-sex marriage. 2,000 gay and lesbian couples are "married" in a mass mock wedding outside the Internal Revenue Service building in Washington. [9]
1993-1998 Hawaii
The Hawaii Supreme Court rules in 1993 that prohibiting same-sex couples from marrying may violate Hawaii Constitution's ban on sex discrimination and can only be upheld if prohibition is justified by a compelling reason.
In 1998, Hawaii's voters amend their Constitution to allow state legislature to restrict marriage to men and women only. [10]
1998 Alaska
The Alaska Superior Court judge Peter Michalski rules February 27 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. Within six months, on November 3 the state's voters amend their constitution to require that all marriages be between a man and a woman.
1999-2000 Vermont
In 1999, the 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. The next year, the legislature passes a law creating civil unions for same-sex couples, giving them all rights and benefits of marriage under Vermont law.
2003 Massachusetts
On November 18 2003, the Massachusetts Supreme Judicial Court ruled 4 to 3 in Goodridge et al. v. Department of Public Health that the state's ban on same-sex marriage is unconstitutional and gave the state Legislature 180 days to change the law. The court found that Massachusetts may not "deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry" because of a clause in the state's constitution that forbids "the creation of second-class citizens." On February 4, 2004, the court reiterated that only equal treatment in both rights and terminology is required. This means that either marriage must be allowed for gay couples (as opposed to civil unions), which would satisfy the state constitution, or all couples must have civil unions, with no state recognition of marriages. The ruling will go into effect on May 18, 2004, six months after it was issued. A constitutional amendment overturning the Supreme Court's decision, if passed, would have to be approved by two successive sessions of the legislature and face a popular vote, and thus could not not go into effect before 2006.
2004
New Jersey
On January 12, 2004, Governor James E. McGreevey signed New Jersey's domestic partnership law. It goes into effect July 10, 180 days after it was signed. The legislature passed the law in part to curtail a law suit seeking full marriage rights for gay people.
On March 8, 2004, the Deputy Mayor of Asbury Park, New Jersey married a same-sex couple who had a license issued by the town clerk. New Jersey has a 72-hour waiting period between issuing a license and performing a ceremony, and the original license was issued without fanfare on March 5. Numerous same-sex couples converged on the clerk's office once it opened on March 9, determined to get their own licenses before a threatened injunction by State Attorney General Peter C. Harvey could halt the process. [11] By the end of the day, no such injunction had been issued, although the attorney general had sent letters to Asbury Park officials warning them that they could face prosecution if they continued. In response, on March 10, the city council voted unanimously to freeze all 16 pending license applications, and sue the state to have those licenses — along with the one marriage which was actually performed — declared valid.
California
From February 12 to March 11, 2004, recently-elected Mayor Gavin Newsom and other city officials began issuing marriage licenses in San Francisco, California. Lesbian activists Phyllis Lyon and Del Martin were the first same sex couple to be married. The event was intended to undercut a legal challenge planned by a conservative group, Campaign for California Families. Marriage licenses were issued to 4,037 same-sex couples before the California Supreme Court issued its stay. During the same period, 103 opposite-sex marriage licenses were issued from the city hall.
Of those same-sex marriage licenses issued, 82 couples either decided not to go through with a marriage or failed to register their marriage with the county before the state supreme court stay was issued, meaning 3,995 completed same-sex marriages were registered in the county.
By reviewing first names of applicants, San Francisco officials estimated that 57 percent of the same-sex married couples were women. Demographic information gleaned from the registered licences also shows the newlywed same-sex couples were older and better educated than the average American household. More than 74 percent were over age 35 while 69 percent had at least one college degree.
According to figures released March 18 by San Francisco County Assessor Mabel Teng, although 91.4 percent of the licenses were granted to couples living in California, other couples came from every state in the United States except for Maine, Mississippi, West Virginia and Wyoming.
Of the other states, the top five states represented included 32 couples each from Washington and Oregon, 24 from Nevada, 20 from New York and 16 from Florida. International same-sex couples, 17 in all, came from Canada, Denmark, France, Germany, the Netherlands, Switzerland Thailand and the United Kingdom.
City officials claim that the marriages are legally binding, although they contravene Proposition 22, a California state law which declares, "Only marriage between a man and a woman is valid or recognized in California." The mayor said he took the action because he believes the law broke constitutional provisions for equal protection. However, legislators and groups opposed to same-sex marriages quickly reacted, filing suit and asking the courts to order the city to stop performing the ceremonies. The legal validity of the marriages will also be tested in the courts. [12] [13] [14] Additionally, the California state agency that records marriages states that altered forms, including any marriage licenses issued to same-sex couples, will not be registered. [15]
In the meantime, David J. Knight, the son of State Senator William "Pete" Knight, who authored Proposition 22, married Joseph J. Lazzaro, his partner of 10 years, on March 9. [16]
Officials in Berkeley and Oakland, in nearby Alameda County, expressed interest in joining San Francisco, but have been unable to do so because marriage licenses are handled at a county, rather than at a city, level. San Francisco was able to issue its own licenses because San Francisco is both a city and a county. It is the only such city in California.
On March 9, 2004, the San Jose City Council, by a vote of 8-1, agreed to recognize same-sex marriages performed in other jurisdictions for city employees.
On March 11, 2004, the California Supreme Court issued a stay ordering San Francisco to stop performing same-sex marriages pending further decisions. Mayor Newsom agreed to abide by the order.
The state supreme court expects to hold hearings on the legality of the marriages in May or June; the stay would last at least until then. The city of San Francisco had wanted their case heard first by lower courts, before juries, rather than by the state supreme court. However, the court suggested that San Francisco could file its own suit against the state, and the city launched such a suit that afternoon.
The ruling also did not alter a scheduled March 29 San Francisco Superior Court hearing before Judge Ronald Quidachay where the Campaign for California Families (CCF) and the Alliance Defense Fund are claiming that San Francisco's granting of same-sex marriage licenses was illegal.
New Mexico
On February 20, 2004, Victoria Dunlap, county clerk of Sandoval County, New Mexico, announced that she would begin issuing same-sex marriage licenses because New Mexico marriage law does not mention gender.[17] The first same-sex marriages in Sandoval County were 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 stopped issuing them. In the interim, 26 such licenses had been issued.
New York
On February 26, 2004, Jason West, mayor of the village of New Paltz, announced that the village would start performing same-sex civil weddings. Although the village would not attempt to issue licenses for such weddings, couples in New York State have six months from the wedding to seek such a license, and weddings are not invalid solely for not having a license. [18] Despite this, on March 2, he was charged with 19 misdemeanor counts of "solemnizing marriages without a license" by Ulster County District Attorney Donald Williams. West originally announced that he intended to continue performing same-sex ceremonies; however, on March 5, New York state judge Vincent Bradley issued a temporary restraining order barring West from performing any such ceremonies for a month. West has indicated that he will abide by the judicial order while evaluating his legal options. In the meantime, on March 15, two Unitarian Universalist ministers who had been performing same-sex weddings in Mayor West's stead were charged with 13 counts of solemnizing a marriage without a license by District Attorney Williams. On March 20, six Unitarian Universalist ministers — including one of the two ministers charged earlier — defied the District Attorney by performing 25 more same-sex marriage ceremonies in New Paltz.
At the same time, Mayor Carolyn K. Peterson of Ithaca, New York, in conjunction with her city clerk, has planned to provoke a court hearing by sending marriage applications from five local gay couples to the New York State Department of Health, while offering the backing of Ithaca's legal resources if their applications are denied.
John Shields, the mayor of Nyack, New York, announced on February 27 that his city would recognize same-sex marriages performed elsewhere. [19] On March 3, he announced that he would begin officiating at same-sex marriages, and that he and his fiancé would join other gay and lesbian New Yorkers in seeking marriage licences from municipal clerks' offices. [20]
On March 3, 2004 the Office of the Attorney General Eliot Spitzer issued an "informal opinion" that clerks should not issue marriage licenses to same-sex couples as the state legislature had not intended same-sex marriages to be covered by the domestic relations law. [21] The same opinion states that same-sex marriages performed elsewhere were recognizable in New York state under a recent judicial decision recognizing the validity of a Vermont civil union as granting the benefits of marriage, Langan v. St. Vincent's Hospital, 196 Misc. 2d 440 (N.Y. Misc. , 2003).
On March 22, 2004, following an opinion requested in January from their attorney, the Rochester city council announced that Rochester would recognize same-sex marriages performed elsewhere. Rochester is across Lake Ontario from Toronto, where same-sex marriages have been legal since 2003.
Oregon
On March 3, 2004, the Multnomah County government began issuing licenses for same-sex marriages, pursuant to a legal opinion issued by its attorney deeming such marriages lawful. Marriage is defined in Oregon law as a "civil contract entered into in person by males at least 17 years of age and females at least 17 years of age," but does not state that one of each is required. [22] [23] [24]
On the first day, Multnomah county issued 422 marriage licenses, compared to 68 on an average day. Local businesses reported an uptick in sales of flowers and other marriage-related services directly related to the beginning of same-sex marriages. Neighboring Washington and Clackamas counties initially announced that they are studying Multnomah County's legal opinion, but do not plan to immediately follow suit.
By the date of first legal hearing, on March 9, approximately 1,700 marriage licenses had been issued by the county; the 2000 US Census reported 3,242 same-sex couples living in the county. A later study by the Portland Oregonian revealed that first weeks 2,026 individuals from Multnomah County had received licenses, about one third of the 2000 Census figure, about 900 other individuals came from other locations in Oregon, about 490 from the state of Washington, and 30 from other states. At the first legal hearing, County Circuit Judge Dale Koch refused to issue an injunction stopping the ceremonies. The following day, the State Legislature's attorney Greg Chaimov issued an opinion stating that counties in Oregon cannot prohibit same-sex couples from receiving marriage licenses.
On March 12, Hardy Myers, Oregon attorney general, issued his office's opinion, after reviewing it with the governor. He concludes
- current Oregon laws prohibit county clerks from issuing marriage licenses to same-sex couples;
- under current law, the legal status of being "married" carries with it legal rights, benefits, and obligations;
- the Oregon Supreme Court likely would conclude that withholding from same-sex couples the legal rights, benefits, and obligations that — under current law — are automatically granted to married couples of the opposite sex likely violates Article I, Section 20 of the Oregon Constitution; but
- because of the uncertainties about the Article I, Section 20 analysis that the Oregon Supreme Court would bring to bear on the question, it would be unwise to change current state practices until, and unless, a decision by the Supreme Court makes clear what, if any changes are required.
The attorney general stated that his office did not have the authority to order Multnomah County to cease issuing licenses for same-sex marriages; after considering their options, Multnomah County announced at noon on March 15 that they would continue to issue licenses to same-sex couples.
After holding public hearings the next day, Benton County commissioners voted 2-1 to start issuing marriage licenses to same sex couples, beginning Wednesday, March 24. However, after receiving two letters from the attorney general and a phone call threatening to arrest the county clerk, the county commissioners reversed their decision March 22, and voted to issue no marriage licenses of any kind until a decision is reached by the Multnomah County Court. [25]
Both sides have agreed to letting three couples with venue sue the state of Oregon in Multnomah County Court to settle this issue. On April 16, attorneys for the ALCU and Basic Rights Oregon presented arguments in favor of the couples, while attorneys for the Oregon Department of Justice and Defense of Marriage Coalition argued against the County's actions before Justice Frank Bearden, who issued his ruling on April 20, 2004. In that ruling, he ordered the county to stop issuing same-sex marriage licenses, while simultaneously ordering the state of Oregon to recognize the nearly 3,000 such licenses already issued. The Oregon state registrar had been holding the completed licenses, rather than entering them into the state's records system, pending a court decision as to their validity. Judge Bearden also found that the Oregon state constitution would likely allow some form of marriage rights to same-sex couples, and directed the legislature to act on the issue within 90 days of the start of its next legislative session. Should they fail to successfully address the issue within that time, Multnomah County would be free to resume issuing same-sex marriage licenses. It was understood that both parties would appeal the decision, although they have not yet decided whether to attempt to move directly to the state Supreme Court, bypassing the Court of Appeals.
Washington
On March 8, 2004, Seattle Mayor Greg Nickels issued an executive order recognizing same-sex marriages from other jurisdictions for all city employees. He also proposed an ordinance to the City Council to require all city contractors to do the same for their employees. [26]
On the same day, six same-sex couples filed suit against King County, seeking to require it to issue marriage licenses for them. At the time, Washington state law gave counties exclusive authority to issue marriage licenses, but also strictly defined marriage as "a civil contract between a male and a female" [27].
A few days later on March 11, the American Family Association filed suit in King County Superior Court seeking to block Mayor Nickels's executive order.
Bans
Politicians in several states have proposed new bans against the practice of same-sex marriage. Some states already had laws defining marriage as between a man and a woman, though many are now mulling the possibility of adding new amendments to the state constitutions in an effort to prevent the laws from being ruled unconstitutional. Many states require constitutional amendments to be voted on in state referenda, meaning that a delay of several months to a year or more will take place before these proposals will have any effect.
On March 5, 2004, the Wisconsin State Assembly approved state constitution amendment (voted 68-27) to ban same-sex marriages or civil unions, to counter efforts elsewhere to legalize such partnerships. The same day, the Kansas House passed, by 88 votes to 36, a proposed amendment. [28] [29] A week later on March 12, the Wisconsin State Senate also voted 20-13 to pass that state's amendment, which must still be passed in next year's legislature and be voted on in a referendum. [30]
See also
- Defense of Marriage Act
- Federal Marriage Amendment
- Gay rights timeline
- List of benefits of marriage in the United States
- US rights and responsibilities of marriage
External links
- Equal Marriage: Freedom to Marry Coalition of Massachusetts. (Education, advocacy, and lobbying group)
- Marriage Law Project, Defense of Marriage Acts (DOMAs), "State Overviews". (A state-by-state guide to marriage issues)
Information
- MECA Educational guide : "History of Marriage"
- Burge, Kathleen, "Supreme Judicial Court : Gay marriage legal in Massachusetts". Boston Globe.
- Foust, Michael, "Same-sex 'marriage' issue percolates in 4 state courts, 1 federal court". Baptist Press News. August 29, 2003.
- Sullum, Jacob, "Word Play -- How to protect the sanctity of marriage". February 13, 2004.
- Gordon, Rachel, "Bush stance led mayor to back gay marriages". February 16, 2004.
- Mullane, J. D., "Backlash coming for gay marriage". Bucks County Courier Times. February 19, 2004.
- "Bush backs ban on gay marriage in Constitution". USAToday. February 24, 2004.
- "Bush Backs Amendment Banning Gay Marriage". NPR.
- "Gay Marriages". Online News Hour, PBS. February 24, 2004.
- Bruce, Tammy, "Respecting Marriage and Equal Rights". FrontPageMagazine.com. February 25, 2004.
- Bonopartis, Nik, "Analogy to civil rights fight is offensive to some blacks". Poughkeepsie Journal. March 5, 2004.