Same-sex marriage legislation in the United States

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Same-sex marriage
Performed nationwide in

Netherlands (2001)
Belgium (2003)
Spain (2005)
Canada (2005)
South Africa (2006)
Performed statewide in
Massachusetts, USA (2004)
Foreign same-sex marriage recognized in
Israel (2006)
Debate in other countries and regions

Argentina
Aruba
Australia
Austria
China
Estonia
France
Ireland
Italy
Latvia
Lithuania
New Zealand
Portugal
Romania
Sweden
Taiwan
United Kingdom
United States:
  CA, CT, MD, NY, NJ, OR, RI, VT, WA
See also

Civil union
Registered partnership
Domestic partnership
Timeline of same-sex marriage
Listings by country
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For more comprehensive descriptions broken down by state see the article, Same-sex marriage legislation in the United States by state.

In response to court action in a number of states, the United States federal government and a number of state legislatures passed or attempted to pass legislation either prohibiting or allowing some form of same-sex marriage or union.

Contents

[edit] Federal level

In 1996, the United States Congress passed and President 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 1,049 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.

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

[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
Yes No Yes No
Hawaii 1996 Domestic Partnership Passed Failed - No No
Hawaii 1997 Reciprocal Beneficiary Relationship Passed Passed Signed Yes Yes
California 1999 Domestic Partnership 22 14 41 36 Signed Yes Yes [1]
District of Columbia 2000 Domestic Partnership Passed Signed Yes Yes
Vermont April 2000 Civil Union 19 11 79 68 Signed Yes Yes
California 2001 Domestic Partnership (expansion) 23 11 41 32 Signed Yes Yes [2]
California 2003 Domestic Partnership (expansion) 23 14 41 33 Signed Yes Yes [3]
New Jersey January 2004 Domestic Partnership 23 9 41 28 Signed Yes Yes
Maine April 2004 Domestic Partnership 19 14 84 58 Signed Yes Yes
Utah February 2005 Reciprocal Beneficiaries Relationship 10 18 - - - No No
Connecticut April 2005 Civil Union 27 9 85 63 Signed Yes Yes
Maryland May 2005 Domestic Partnership 31 16 83 50 Vetoed No No [4]
California June 2005 Same-Sex Marriage - - 37 36 - No No [5]
Oregon July 2005 Civil Union 19 10 - - - No No [6]
California September 2005 Same-Sex Marriage 21 15 41 35 Vetoed No No [7]
Colorado November 2006 Domestic Partnership Citizen Referendum No No
New Jersey December 2006 Civil Union 23 12 56 19 Signed Yes Yes
  • ^  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.

[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 Yes vote No No vote Final
outcome
1998:
Alaska Ballot Measure 2 Marriage November 1998 68% (152,965) 32% (71,631) Yes Yes
Hawaii Constitutional Amendment 2 Marriage ban
permitted		 November 1998 69% (285,384) 31% (117,827) Yes Yes [8]
2000:
Nebraska Initiative Measure 416 Marriage and
civil union		 November 2000 70% (450,073) 30% (189,555) Yes Yes [9]
2002:
Nevada Question 2 Marriage November 2002 67% (337,183) 33% (164,555) Yes Yes
2004:
Arkansas Constitutional Amendment 3 Marriage and
civil union		 November 2004 75% (753,770) 25% (251,914) Yes Yes
Georgia Constitutional Amendment 1 Marriage and
civil union		 November 2004 76% (2,454,912) 24% (768,703) Yes Yes [10]
Kentucky Constitutional Amendment 1 Marriage and
civil union		 November 2004 75% (1,222,125) 25% (417,097) Yes Yes
Louisiana Constitutional Amendment 1 Marriage and
civil union		 September 2004 78% (618,928) 22% (177,103) Yes Yes [11]
Michigan State Proposal - 04-2 Marriage and
civil union		 November 2004 59% (2,698,077) 41% (1,904,319) Yes Yes
Mississippi Amendment 1 Marriage November 2004 86% (957,104) 14% (155,648) Yes Yes
Missouri Constitutional Amendment 2 Marriage August 2004 71% (1,055,771) 29% (439,529) Yes Yes
Montana Initiative 96 Marriage November 2004 67% (295,070) 33% (148,263) Yes Yes
North Dakota Constitutional Measure 1 Marriage and
civil union		 November 2004 73% (223,572) 27% (81,716) Yes Yes
Ohio State Issue 1 Marriage and
civil union		 November 2004 62% (3,329,335) 38% (2,065,462) Yes Yes
Oklahoma State Question 711 Marriage and
civil union		 November 2004 76% (1,075,216) 24% (347,303) Yes Yes
Oregon Measure 36 Marriage November 2004 57% (1,028,546) 43% (787,556) Yes Yes
Utah Constitutional Amendment 3 Marriage and
civil union		 November 2004 66% (593,297) 34% (307,488) Yes Yes
2005:
Kansas Proposed amendment 1 Marriage and
civil union		 April 2005 70% (414,106) 30% (178,018) Yes Yes
Texas Proposition 2 Marriage and
civil union		 November 2005 76% (1,718,513) 24% (536,052) Yes Yes
2006:
Alabama Sanctity of Marriage Amendment Marriage and
civil union		 June 2006 81% (734,746) 19% (170,399) Yes Yes
Arizona Proposition 107 Marriage and
civil union		 November 2006 48% (721,489) 52% (775,498) No No
Colorado Amendment 43 Marriage November 2006 56% (768,700) 44% (612,155) Yes Yes
Idaho Amendment 2 Marriage and
civil union		 November 2006 63% (281,823) 37% (163,191) Yes Yes
South Carolina Amendment 1 Marriage and
civil union		 November 2006 78% (818,894) 22% (230,674) Yes Yes
South Dakota Amendment C Marriage and
civil union		 November 2006 52% (172,237) 48% (160,756) Yes Yes
Tennessee Marriage Protection Amendment Marriage November 2006 81% (1,417,315) 19% (326,335) Yes Yes
Virginia Virginia Any possible
status		 November 2006 57% (1,325,668) 43% (1,003,967) Yes Yes
Wisconsin Referendum 1 Marriage and
civil union		 November 2006 59% (1,260,554) 41% (861,554) Yes Yes

See also : List of defense of marriage amendments to U.S. state constitutions by type

[edit] Possible future efforts to define marriage through constitutional amendment

State Date Description
Minnesota 2007 Failed to be brought up for a vote in state senate, likely to be re-introduced next year.
North Carolina 2007 Introduced in legislature three times, failed to leave committee. Likely to be re-introduced next year.
West Virginia 2007 Petition drive under way to put the issue on the ballot next year.
Alaska 2007 Alaska has had a marriage amendment since 1998, but there are new attempts to amend it further to ban other unions.[citation needed]
Arizona 2008 Lawmakers preparing to introduce a revised amendment after failure of Proposition 107 in 2006.
California 2008 ProtectMarriage.com and VoteYesMarriage.com have signature drives underway to put the measure on the ballot in 2008.
Florida 2008 Florida4Marriage.org must collect about 28,000 more petitions to place the Florida Marriage Protection Amendment on the 2008 ballot.
Illinois 2008 Protect Marriage Illinois must collect 500,000 petition signatures by April 20, 2006 to be on the 2008 ballot, although it would be non-binding.
Indiana 2008 Already passed both chambers of the state legislature in 2005 but failed to pass a House Committee vote on April 04th, 2007. It could still make it to voters in 2008 if reintroduced.
Iowa 2008 Failed to pass the state senate. Likely to be re-introduced.
Massachusetts 2008 VoteOnMarriage.org must receive state lawmakers' approval at Constitutional Convention II before putting the measure on the 2008 ballot.
Minnesota 2008 Minnesota Citizens in Defense of Marriage is attempting to collect over 100,000 signatures to place the measure on the ballot.
New Jersey 2008 Petition drive under way.
New Mexico 2008 Marriage amendment proposed in state legislature.
Pennsylvania 2009 Pennsylvania For Marriage is collecting petition signatures. State senate and assembly could not agree on the wording, preventing the issue from going to voters in 2007. The earliest it could be voted on is 2009.
  • ^  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.[2] The ruling was appealed to the Eighth U.S. Circuit Court of Appeals based in St. Louis.[3] That Court issued a ruling that re-instated the ban, declaring in part that it was a legitimate state interest.[4]
  • ^  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.[5]
  • ^  Ban declared unconstitutional on May 16th, 2006 by Fulton County Superior Court Judge Constance C. Russell saying 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.[6][7]

[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 Yes vote No 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.[8][12] YesYes [13]
Colorado November 2006 Prevent same-sex couples from being able to register as domestic partnerships. (Failed to qualify for ballot)
Colorado November 2006 47% (641,443) 53% (727,433) Colorado Referendum I (2006) :
To allow same-sex couples to register as "domestic partners".[9]		 NoNo
  • ^  There is still an on-going debate on whether or not 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.

[edit] References

  1. ^ Kravets, David, Two paths toward one goal: same-sex marriage, Associated Press, April 2, 2006.
  2. ^ http://www.msnbc.msn.com/id/7834478/
  3. ^ http://www2.ljworld.com/news/2005/jun/10/nebraska_samesex/?kansas_legislature
  4. ^ Washington Post
  5. ^ http://www.alliancedefensefund.org/news/story.aspx?cid=3297
  6. ^ http://www.wistv.com/Global/story.asp?S=4920141
  7. ^ http://www.cnn.com/2006/LAW/07/06/MF.gay.marriage.ap/
  8. ^ Full Results
  9. ^ Colorado Referendum I full results

[edit] External link

[edit] See also

[edit] In General

[edit] In USA


Same-sex marriage in the United States
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 Flag of the United States
Legalized: Massachusetts
Law proposed: Connecticut - Illinois - Maine - New Jersey - New York - Rhode Island - Vermont

 Civil unions permitted:

 Connecticut - New Jersey - Vermont

 Domestic partnerships permitted:

 California - District of Columbia - Hawaii - Maine
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
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