Same-sex marriage in the United States

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

The legal issues surrounding same-sex marriage in the United States are complicated by the nation's federal system of government. Traditionally, the federal government did not attempt to establish its own definition of marriage; any marriage recognized by a state was recognized by the federal government, even if that marriage was not recognized by one or more other states (as was the case with interracial marriage before 1967). With the passage of the Defense of Marriage Act in 1996, however, a marriage was explicitly defined as a union of one man and one woman for the purposes of federal law. Thus, no act or agency of the U.S. federal government currently recognizes same-sex marriage.

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

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

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

Opponents of same-sex marriage have attempted to prevent individual states from recognizing such unions by amending the United States Constitution to define marriage as a union between one man and one woman. In 2006, the Federal Marriage Amendment, which would prohibit states from recognizing same-sex marriages, was approved by the Republican-controlled Senate Judiciary Committee, on a party line vote, and was debated by the full United States Senate, but was ultimately defeated in both houses of Congress.^[1]

[edit] The debate

[edit] Conservative publications

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

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

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

[edit] Liberal publications

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

...you also have to wonder if he and other opponents to equal rights really understand the consequences of the amendments they support. Do they really want gay and lesbian couples separated at the emergency room door in the event of an accident or illness? Do they really think long-term couples should be denied the right to make medical or end-of-life decisions, which married couples take for granted? Do they really think that kids should be denied health coverage by one parent's health insurance because the law treats them as strangers? Do they really think it's fair for gay and lesbian people to pay the same taxes as everyone else, but to be denied the hundreds of rights, benefits and protections of marriage? Do they really think that a gay and lesbian couple that has been together for 50 years does not deserve the protections that non-gay newlyweds enjoy from day one?^[2]

[edit] Groups supporting and opposing same-sex marriage

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

It is supported by an assortment of groups and individuals. Those supporting same-sex marriage include the Human Rights Campaign; the late Coretta Scott King; the mayors of several large cities such as Boston, Los Angeles, San Francisco, Salt Lake City, Chicago, Seattle, and New York City; the American Civil Liberties Union; the American Psychiatric Association; Reform Judaism; the Unitarian Universalist religion. Several political parties such as the Communist Party USA,^[3] the Socialist Party USA,^[4] U.S. Green Party, the United States Libertarian Party and several state Democratic Parties also support gay marriage.

Those supporting the creation of a separate but equal legal status for same-sex couples in the form of civil union or domestic partnership legislation include some state governors such as those of Washington, Oregon, California, New Mexico, and Connecticut, the national Democratic Party,^[5] and President George W. Bush.^[6] Some also support enacting reciprocal beneficiary legislation that would give some of the same legal rights as marriage but not all. They include the state governor of Utah,^{[citation needed]} and Focus on the Family.

Groups that oppose giving a legal status to same-sex marriages include the American Family Association, Family Research Council, Southern Baptist Convention,^[7] the Presbyterian Church USA,^[8] the Seventh-day Adventist Church,^[9] the Southern Baptist Convention,^[10] the Hutterite Brethren,^[11] the Conservative Mennonite Conference^[12] the Evangelical Methodist Church,^[13] Unification Church, the Moral Majority, the Christian Voice, the Christian Coalition, Focus on the Family, The Church of Jesus Christ of Latter-day Saints, the Orthodox Church in America,^[14] the Rabbinical Council of America,^[15] the Union of Orthodox Jewish Congregations of America (OU),^[15] the Church of God (Anderson, IN),^[16] a majority of the Republican Party, and the Roman Catholic Church.

[edit] Popular opinion

See Same-sex marriage in the United States public opinion

[edit] Legal issues

[edit] Federal level

In the United States, proponents of equal marriage rights for same-sex couples observe that there are over 1,049 federal laws in which marital status is a factor, as well as state and private benefits (family memberships, discounts, etc.) 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. Most legal experts expect these challenges to fail.^{[citation needed]}

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.^[17] 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.^[18]

[edit] State level

See Same-sex marriage legislation in the United States by state for information on individual states

     Same sex marriage permitted
     Laws permitting civil unions or domestic partnerships
     Same sex marriage, civil unions, and domestic partnerships prohibited

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

Hawaii, Maine, and New Jersey have domestic partnership and reciprocal benefit laws which provide similar benefits, but stop short of full equality on a state level. On October 25, 2006 the New Jersey Supreme Court ruled this inequality unconstitutional with regards to the state's Constitution, and gave the legislature 180 days to correct it.^[19]

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.^{[citation needed]}

In all cases, no rights that originate with the federal government attach to civil union, domestic partnership, or other statuses, because the several states do not have jurisdiction over the Federal Government.

[edit] Impact of foreign laws

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

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

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

[edit] Legislative action on same-sex unions

See Same-sex marriage legislation in the United States

[edit] 2004 presidential election

In the 2004 presidential election campaign, defining marriage became a campaign issue. Incumbent George W. Bush, the Republican Party candidate, supported creating a federal "one man and one woman" definition of marriage, through the Federal Marriage Amendment (FMA), while supporting state-sanctioned civil unions, reciprocal benefits, or domestic partnerships. Challenger John F. Kerry, the Democratic Party candidate, took a similar position supporting the "one man and one woman" definition on a state level while supporting civil unions, reciprocal benefits, and domestic partnerships. However, Kerry opposed the FMA.

During the 2004 Republican National Convention, the GOP platform called for "a Constitutional amendment that fully protects marriage".[5] After his re-election, President Bush indicated to the Washington Post that he saw little prospect for Congressional passage of the Federal Marriage Amendment to the federal Constitution unless the Defense of Marriage Act were ruled unconstitutional.^{[citation needed]}

Many political commentators^{[citation needed]} believe that strong opposition to gay marriage was arguably a significant factor in helping President Bush win reelection, particularly because John Kerry represented Massachusetts, the state where gay marriage had just been legalized. Several states passed constitutional amendments defining marriage on election day, including Ohio. Nevertheless, in some states Bush, received more votes than the definition of marriage acts,^{[citation needed]} indicating some of those who voted for him also voted against defining marriage.

[edit] Case law

United States case law regarding the rights of homosexual persons:

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

[edit] Notes

[edit] References

• PollingReport.com Law and Civil Rights compendium

[edit] Bibliography

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

Same-sex marriage in the United States

Legalized: Massachusetts Law proposed: Maine - New Jersey - New York - Rhode Island Domestic partnerships permitted: California - Connecticut - District of Columbia - Hawaii - New Jersey - Maine - Vermont 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 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 Marriage undefined: New Mexico - Rhode Island

[edit] See also

LGBT rights

Around the world · By country

History · Groups · Activists

Same-sex relationships

Opposition · Persecution

Violence

• Same-sex marriage in the United States
• Same-sex marriage legislation in the United States
• Same-sex marriage in the United States by state
• Same-sex marriage in the United States public opinion
• Same-sex marriage status in the United States by state
• List of benefits of marriage in the United States
• Defense of Marriage Act
• Marriage Protection Act
• Defense of marriage amendment
• Federal Marriage Amendment
• Domestic partnerships in the United States
• Marriage Under Fire
• Freedom to Marry Coalition

[edit] External links

[edit] Supporting same-sex marriage

• Human Rights Campaign
• Marriage Equality USA
• Freedom to Marry
• National Organization for Women: Same-Sex Marriage is a Feminist Issue
• American Civil Liberties Union
• The Democratic Party GLBT Community

[edit] Opposing same-sex marriage

• Alliance for Marriage
• Religious Coalition for Marriage
• The Marriage Amendment Project
• DOMA Watch
• Eleven Arguments Against Same-Sex Marriage, by. Dr. James Dobson