Same-sex marriage legislation in the United States

In 1996, the United States Congress passed and President Bill Clinton signed Public Law 106-199, the Defense of Marriage Act. The Act defines "marriage" and "spouse" for purposes of federal law.

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

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

Proponents of equal marriage rights for same-sex couples observe that there are over 1,138 federal laws in which marital status is a factor, as well as state and private benefits (family memberships, discounts, etc.) which are denied same-sex couples by excluding them from participating in marriage. A legal denial of federal rights or benefits, they say, directly contradicts the 14th Amendment of the US Constitution which provides for equal protection and substantive due process under the law: rights conferred to one person cannot be denied to another.

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

Challenges to DOMA have already been rejected by several federal courts, including a decision by Judge James S. Moody in the case of Wilson v. Ake.

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

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

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

As of April 2006, California same-sex couple Arthur Smelt and Christopher Hammer had a marriage-rights case pending in the federal Ninth Circuit Court of Appeals. Gay-rights groups including the Lambda Legal Defense and Education Fund and the American Civil Liberties Union did not support the lawsuit, on the grounds that it is likely to lose in the Supreme Court and set an unfavorable precedent. The Court eventually tossed out the suit in the spring of 2006, saying that the couples must wait for a ruling by the Appeals Court in California.^[1]

[edit] State level

See Same-sex marriage legislation in the United States by state for statutory text and actions sorted by state.

[edit] Efforts to enable same-sex unions

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

State	Date	Type of same-sex union	Senate		Lower house		Governor	Final outcome
State	Date	Type of same-sex union	Yes	No	Yes	No	Governor	Final outcome
District of Columbia	1992/2002 ^[1]	Domestic Partnership	Passed ^[2]				Signed ^[3]	Yes
Hawaii	1996	Domestic Partnership	Passed		Failed		-	No
Hawaii	1997	Reciprocal Beneficiary Relationship	Passed		Passed		Signed	Yes
California	1999	Domestic Partnership	22	14	41	36	Signed	Yes ^[4]
Vermont	April 2000	Civil Union	19	11	79	68	Signed	Yes
California	2001	Domestic Partnership (expansion)	23	11	41	32	Signed	Yes ^[5]
California	2003	Domestic Partnership (expansion)	23	14	41	33	Signed	Yes ^[6]
New Jersey	January 2004	Domestic Partnership	23	9	41	28	Signed	Yes
Maine	April 2004	Domestic Partnership	19	14	84	58	Signed	Yes
Utah	February 2005	Reciprocal Beneficiary Relationship	10	18	-	-	-	No
Connecticut	April 2005	Civil Union	27	9	85	63	Signed	Yes
Maryland	May 2005	Domestic Partnership	31	16	83	50	Vetoed	No ^[7]
California	June 2005	Same-Sex Marriage	-	-	37	36	-	No ^[8]
Oregon	July 2005	Civil Union	19	10	-	-	-	No ^[9]
California	September 2005	Same-Sex Marriage	21	15	41	35	Vetoed	No ^[10]
District of Columbia	April 2006	Domestic Partnership (expansion)	Passed ^[11]				Signed ^[12]	Yes
Colorado	November 2006	Domestic Partnership	Pass		Pass		Rejected by Voters	No
New Jersey	December 2006	Civil Union	23	12	56	19	Signed	Yes
Washington	April 2007	Domestic Partnership	28	19	63	35	Signed	Yes
Oregon	May 2007	Domestic Partnership	21	9	34	26	Signed	Yes
New Hampshire	May 2007	Civil Union	14	10	243	129	Signed	Yes
New York	June 2007	Same-Sex Marriage	Failed		85	61	-	No
California	September 2007	Same-Sex Marriage	22	15	42	34	Vetoed	No ^[13]

^ Granted limited rights.
^ Expanded rights included.
^ Gave domestic partnerships legal rights of married couples.
^ Maryland Governor vetoed legislation; a veto override would require two-thirds support.
^ The vote failed to receive the absolute majority (41 votes) required to pass.
^ The bill failed to come to a floor vote in the House of Representatives.
^ California Governor vetoed legislation; a veto override would require two-thirds support.
^ California Governor vetoed legislation; a veto override would require two-thirds support.
^ Passed by the City Council; Signed by the Mayor of the District of Columbia in 1992 with delayed implementation until 2002 due to action taken by the U.S. Congress during the Congressional Review Period. (See Domestic partnership in the District of Columbia).
^ Passed by the City Council; Signed by the Mayor of the District of Columbia with no delay action taken by the U.S. Congress during the Congressional Review Period.

[edit] Efforts to define marriage by constitutional amendment

The following table shows all popular vote results regarding state constitutional amendments concerning same-sex marriage, and in some cases civil unions and domestic partnerships. The Hawaii amendment is different in that it granted the legislature authority to "reserve marriage to opposite-sex couples" (which the legislature had already done).

State	Initiative	Ban on	Date	Yes vote	No vote	Final outcome
*1998:*
Alaska	Ballot Measure 2	Marriage	November 1998	68% (152,965)	32% (71,631)	Yes
Hawaii	Constitutional Amendment 2	Marriage ban permitted	November 1998	69% (285,384)	31% (117,827)	Yes ^[14]
*2000:*
Nebraska	Initiative Measure 416	Marriage and civil union	November 2000	70% (450,073)	30% (189,555)	Yes ^[15]
*2002:*
Nevada	Question 2	Marriage	November 2002	67% (337,183)	33% (164,555)	Yes
*2004:*
Arkansas	Constitutional Amendment 3	Marriage and civil union	November 2004	75% (753,770)	25% (251,914)	Yes
Georgia	Constitutional Amendment 1	Marriage and civil union	November 2004	76% (2,454,912)	24% (768,703)	Yes ^[16]
Kentucky	Constitutional Amendment 1	Marriage and civil union	November 2004	75% (1,222,125)	25% (417,097)	Yes
Louisiana	Constitutional Amendment 1	Marriage and civil union	September 2004	78% (618,928)	22% (177,103)	Yes ^[17]
Michigan	State Proposal - 04-2	Marriage and civil union	November 2004	59% (2,698,077)	41% (1,904,319)	Yes
Mississippi	Amendment 1	Marriage	November 2004	86% (957,104)	14% (155,648)	Yes
Missouri	Constitutional Amendment 2	Marriage	August 2004	71% (1,055,771)	29% (439,529)	Yes
Montana	Initiative 96	Marriage	November 2004	67% (295,070)	33% (148,263)	Yes
North Dakota	Constitutional Measure 1	Marriage and civil union	November 2004	73% (223,572)	27% (81,716)	Yes
Ohio	State Issue 1	Marriage and civil union	November 2004	62% (3,329,335)	38% (2,065,462)	Yes
Oklahoma	State Question 711	Marriage and civil union	November 2004	76% (1,075,216)	24% (347,303)	Yes
Oregon	Measure 36	Marriage	November 2004	57% (1,028,546)	43% (787,556)	Yes
Utah	Constitutional Amendment 3	Marriage and civil union	November 2004	66% (593,297)	34% (307,488)	Yes
*2005:*
Kansas	Proposed amendment 1	Marriage and civil union	April 2005	70% (414,106)	30% (178,018)	Yes
Texas	Proposition 2	Marriage and civil union	November 2005	76% (1,718,513)	24% (536,052)	Yes
*2006:*
Alabama	Sanctity of Marriage Amendment	Marriage and civil union	June 2006	81% (734,746)	19% (170,399)	Yes
Arizona	Proposition 107	Marriage and civil union	November 2006	48% (721,489)	52% (775,498)	No
Colorado	Amendment 43	Marriage	November 2006	56% (768,700)	44% (612,155)	Yes
Idaho	Amendment 2	Marriage and civil union	November 2006	63% (281,823)	37% (163,191)	Yes
South Carolina	Amendment 1	Marriage and civil union	November 2006	78% (818,894)	22% (230,674)	Yes
South Dakota	Amendment C	Marriage and civil union	November 2006	52% (172,237)	48% (160,756)	Yes
Tennessee	Marriage Protection Amendment	Marriage	November 2006	81% (1,417,315)	19% (326,335)	Yes
Virginia	Virginia	Marriage and civil union	November 2006	57% (1,325,668)	43% (1,003,967)	Yes
Wisconsin	Referendum 1	Marriage and civil union	November 2006	59% (1,260,554)	41% (861,554)	Yes
*2008:*
California	Limit on Marriage Amendment	Marriage	November 2008			NA
Florida	Amendment 2	Marriage and civil union	November 2008			NA

[edit] Pending efforts to define marriage through constitutional amendment

State	Date	Description
Connecticut	No Specific Date	Voters in Connecticut may be asked this year to hold a constitutional convention, where proponents hope to pass an amendment banning same-sex marriage.
Iowa	No Specific Date	Failed to be brought up for a vote in 2008. Likely to be re-introduced in 2009. Will probably not be on the ballot until 2012 at the earliest.
Minnesota	No Specific Date	Failed to be brought up for a vote, likely to be re-introduced next year.
North Carolina	No specific date	Amendment introduced in legislature several times with broad bi-partisan support, but has never been brought up for a vote in either chamber. Likely to be re-introduced this year, but is unlikely to go to voters as long as Democrats control the state legislature.
Washington	No specific date	After the court decision rejecting same-sex marriage in 2006, advocates are expected to try and legalize it through the legislature. Opponents have also filed amendments to ban it, but it is unlikely that they will pass as long as Democrats control the state legislature.
Alaska	2008	Alaska has had a marriage amendment since 1998, but in April 2007, 53% of voters approved an advisory referendum calling on the legislature to allow a 2008 vote on banning same sex benefits as well.^[2]
Arizona	2008	Lawmakers have introduced marriage amendments in the state house and senate; there is a strong possibility that one will go before voters in 2008.
Delaware	2008	Amendments introduced in legislature.
Indiana	2008	Almost made the 2008 ballot, but was not brought up for a vote by the democratic leadership despite support from most democrats. The earliest it can now reach voters is 2012.
Maryland	2008	In 2007, the Maryland Supreme Court upheld a state ban on same-sex marriage, spurring several pieces of legislation in the state legislature, including a constitutional amendment banning the practice.
New Jersey	2008	There is speculation the the legislature may attempt to legalize same-sex marriage in 2009. If this is the case, there will be a strong push to ban it through constitutional amendment.
West Virginia	2008	Has been introduced in legislature several times, failed to come up for a vote. Will be re-introduced.
Pennsylvania	2009	Pennsylvania For Marriage is pushing for a public vote on an amendment; it is intended to define marriage as between one man and one woman as well as ban same-sex civil unions. State senate and assembly could not agree on the wording, preventing the issue from going to voters in 2007. The earliest it could be on the ballot is 2009.
Illinois	2010	Protect Marriage Illinois must collect 270,000 petition signatures by April 20, 2008 to be on the 2008 ballot, although it would be non-binding.

^ Does not explicitly define marriage, but allows the legislature to define marriage.

^ Ban declared unconstitutional by Judge Joseph Bataillon, Chief Judge of the U.S. District Court for the District of Nebraska.^[3] The ruling was appealed to the Eighth U.S. Circuit Court of Appeals based in St. Louis.^[4] That Court issued a ruling that re-instated the ban, declaring in part that it was a legitimate state interest.^[5]

^ On October 06, 2004, a Louisiana district judge tossed out the approved amendment saying it addressed two subjects: marriage and civil unions. Shortly after, the Louisiana Supreme Court unanimously overturned that ruling and found the amendment valid.^[6]

^ Ban declared unconstitutional on May 16, 2006 by Fulton County Superior Court Judge Constance C. Russell, who said it violated the single-subject rule in Georgia's constitution. Governor Sonny Perdue said he was disappointed by the decision, which he said ran contrary to the voice of Georgia voters. The following day, the ruling was appealed to the Supreme Court of Georgia. On July 6, 2006, the Georgia Supreme Court ruled that the ban did not violate the single-subject rule.^[7]^[8]

[edit] Efforts to define marriage by statuatory initiative

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

State	Date	Yes vote	No vote	Description	Final outcome
West:
California	March 2000	61% (4,618,673)	39% (2,909,370)	Proposition 22. Amend the Family Code to say: Only marriage between a man and a woman is valid or recognized in California.^[9]^[18]	Yes but ruled unconstitutional ^[19]
Colorado	November 2006			Prevent same-sex couples from being able to register as domestic partnerships. (Failed to qualify for ballot)	No
Colorado	November 2006	47% (641,443)	53% (727,433)	Colorado Referendum I (2006) : To allow same-sex couples to register as "domestic partners".^[10]	No
Alaska	April 2007	53% (60,896)	47% (54,442)	Advisory Referendum. Calls on the legislature to place on the 2008 ballot an amendment to ban same sex employee benefits.^[11]	Yes ^[12]

^ There is a debate as to whether the adoption of Prop 22 only prohibited California from recognizing same-sex marriages performed in other states.

^ In March 2005, Judge Richard Kramer ruled there appeared to be no rational state compelling interest in limiting marriage to heterosexual couples. His ruling was appealed to the California Court of Appeal for the 1st District, which upheld Proposition 22 on October 5, 2006. The Supreme Court of California ruled on May 15, 2008, that Proposition 22 is unconstitutional and it was struck down by the state's highest court.

[edit] References

[edit] See also

[edit] General

[edit] United States

[edit] External links

v • d • e Same-sex unions in the United States

Marriage legalized	Massachusetts - California (eff. 2008-6-17)

Civil unions enacted	Connecticut - New Hampshire - New Jersey - Vermont

Domestic partnerships enacted	California - District of Columbia - Hawaii - Maine - Oregon - Washington

Prohibited by statute	Arizona - Connecticut - Delaware - Florida - Illinois - Indiana - Iowa - Maryland - Minnesota - New Hampshire - New York - North Carolina - Pennsylvania - Puerto Rico - Washington - West Virginia - Wyoming

Prohibited by constitutional amendment	Alabama - Alaska - Arkansas - Colorado - Georgia - Hawaii - Idaho - Kansas - Kentucky - Louisiana - Michigan - Mississippi - Missouri - Montana - Nebraska - Nevada - North Dakota - Ohio - Oklahoma - Oregon - South Carolina - South Dakota - Tennessee - Texas - Utah - Virginia - Wisconsin

Marriage undefined	New Mexico - Rhode Island

Categories: Same-sex marriage in the United States | LGBT rights organizations

Same-sex marriage legislation in the United States

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Contents

[edit] Federal level