Same-sex marriage in the United States

Legal status of same-sex unions
Marriage
Performed
Recognized

  1. Marriages performed in some municipalities and recognized by the state
  2. For some purposes, from all jurisdictions where same-sex marriage is legal
  3. When performed in Mexican states that have legalized same-sex marriage
  4. When performed in the Netherlands proper
  5. Registration schemes opened in all jurisdictions except Hualien County, Penghu County, Taitung County, and Yunlin County

* Not yet in effect

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In the United States, same-sex marriage is legal in all states, Washington, D.C., as well as all U.S. territories except American Samoa, but not on all Indian lands, since June 26, 2015, when the United States Supreme Court ruled in Obergefell v. Hodges that state-level bans on same-sex marriage are unconstitutional.[1][2][3] The court ruled that the denial of marriage licenses to same-sex couples and the refusal to recognize those marriages performed in other jurisdictions violates the Due Process and the Equal Protection clauses of the Fourteenth Amendment of the United States Constitution. The ruling overturned a 1972 precedent, Baker v. Nelson. Just prior to the Supreme Court's ruling in 2015, same-sex marriage was legal in many U.S. jurisdictions but not all.

While civil rights campaigning took place from the 1970s,[4] the issue became prominent from around 1993, when the Hawaii Supreme Court ruled in Baehr v. Lewin that the prohibition was unconstitutional. The ruling led to federal actions and actions by several states, to restrict marriage to male-female couples, in particular the Defense of Marriage Act (DOMA). During the period of 2003 to 2015, various lower court decisions, state legislation, and popular referendums already legalized same-sex marriage to some degree in thirty-eight out of fifty U.S. states, in the U.S. territory Guam, and in the District of Columbia. In 2013 the Supreme Court overturned a key provision of DOMA, declaring part of it unconstitutional and in breach of the Fifth Amendment in United States v. Windsor because it "single[d] out a class of persons" for discrimination, by refusing to treat their marriages equally under federal law when state law had created them equally valid. The ruling led to the federal government's recognition of same-sex marriage, with federal benefits for married couples connected to either the state of residence or the state in which the marriage was solemnized. However the ruling focused on the provision of DOMA responsible for the federal government refusing to acknowledge State sanctioned same-sex marriages, leaving the question of state marriage laws itself to the individual States. The Supreme Court addressed that question two years later in 2015, ruling, in Obergefell, that same-sex married couples were to be constitutionally accorded the same recognition as opposite-sex couples at state/territory levels, as well as at federal level.

By the time that same-sex marriage became legal nationally, public opinion on the subject reached almost 60% approval levels according to polls by The Wall Street Journal,[5] the Human Rights Campaign,[6] and CNN,[7] having crossed the 50% in 2011 and not going below that mark since.[8]

History

The movement to obtain civil marriage rights and benefits for same-sex couples in the United States began in the 1970s.[4] In the 1971 case Baker v. Nelson the Minnesota Supreme Court ruled that denying marriage licenses to same-sex couples did not violate the U.S. Constitution. On appeal, the United States Supreme Court denied to hear the case, establishing it as a federal precedent as it came from mandatory appellate review. The issue did not become prominent in U.S. politics until the 1993 Hawaii Supreme Court decision in Baehr v. Lewin that declared that state's prohibition to be unconstitutional.[9]

During the 21st century, while several countries elsewhere in the world were opening marriage for same-sex couples, public support in the U.S. for same-sex marriage has grown considerably,[10][11] and national polls conducted since 2011 show that a majority of Americans support legalizing it. However at the same time, many states also passed bans against same-sex marriage, either legislatively or by referendum. On May 17, 2004, Massachusetts became the first U.S. state and the sixth jurisdiction in the world to legalize same-sex marriage following the Supreme Judicial Court's decision in Goodridge v. Department of Public Health six months earlier.[12] On May 9, 2012, Barack Obama became the first sitting U.S. president to publicly declare support for the legalization of same-sex marriage.[13] On November 6, 2012, Maine, Maryland, and Washington became the first states to legalize same-sex marriage through popular vote.

In June 2013 the Supreme Court ruled in United States v. Windsor that federal law could not treat as unequal, marriages that individual States had created as equally valid, when it overturned a key provision of the Defense of Marriage Act (DOMA), thus forcing federal recognition of same-sex marriage and marriage-related benefits when related to a same-sex marriage performed by a state that sanctioned such marriages. In the two years following Windsor, U.S. district courts in 27 states[lower-alpha 1] and state courts in six states,[lower-alpha 2] plus one state court ruling addressing only the recognition of same-sex marriages from other jurisdictions,[lower-alpha 3] found that same-sex marriage bans violate the U.S. Constitution, while two U.S. district courts[lower-alpha 4] and one state court[lower-alpha 5] found that they did not. The flow of federal appeal cases rejecting same-sex marriage bans was finally interrupted in November 2014. In contrast to all other circuits that had ruled at the time, the Sixth Circuit ruled such bans to be constitutional. The panel ruling reversed six U.S. district court rulings that had found bans on same-sex marriage or its recognition to be unconstitutional, reinstating State bans in the four states served by that circuit (Kentucky, Michigan, Ohio and Tennessee).[lower-alpha 6][48]

The crowd assembled in front of the Supreme Court shortly before same-sex marriage bans were struck down nationwide in Obergefell v. Hodges.

On January 16, 2015, the U.S. Supreme Court agreed to hear four cases, on appeal from the Sixth Circuit, on whether states may constitutionally ban same-sex marriages or refuse to recognize such marriages legally performed in another state. The cases were: Obergefell v. Hodges (Ohio), Tanco v. Haslam (Tennessee), DeBoer v. Snyder (Michigan), and Bourke v. Beshear (Kentucky). Decided by the court under the heading of Obergefell on June 26, 2015, a 5–4 majority of justices led by Justice Anthony Kennedy reversed the Sixth Circuit's upholding of state bans and declared that the Court's rulings must evolve in the light of better understanding of discrimination and the constitutional protections available to protect minorities, and that same-sex couples have the constitutional rights to marry and to have their marriages recognized.[49] Obergefell therefore overturned the Court's own prior ruling in Baker.

Before Obergefell

State laws regarding same-sex marriage in the United States prior to Obergefell v. Hodges1 ----
  Same-sex marriage legal
  Same-sex marriage ban overturned, decision stayed indefinitely
  Same-sex marriage banned where federal circuit court has found similar bans unconstitutional
  Same-sex marriage banned
  Same-sex marriage legality complicated
---- 1 Native American tribal jurisdictions have laws pertaining to same-sex marriage independent of state law. The federal government recognizes same-sex marriages, regardless of the current state of residence.

Prior to Obergefell, same-sex marriage was legal to at least some degree in thirty-eight states, one territory (Guam) and the District of Columbia; of the states, Missouri, Kansas, and Alabama had restrictions. Until United States v. Windsor, it was only legal in 12 states and Washington D.C.. Beginning in July 2013, over forty federal and state courts cited Windsor to strike down state bans on the licensing and/or recognition of same-sex marriage. Missouri recognized same-sex marriages from out of state and same-sex marriages licensed by the City of St. Louis under two separate state court orders; two other jurisdictions issued such licenses as well. In Kansas, marriage licenses were available to same-sex couples in most counties, but the state did not recognize their validity. Some counties in Alabama issued marriage licenses to same-sex couples for three weeks until the state Supreme Court ordered probate judges to stop doing so. That court's ruling did not address the recognition of same-sex marriages already licensed in Alabama, but referred to them as "purported 'marriage licenses'".[50] In two additional states, same-sex marriages were previously legal between the time their bans were struck down and then stayed. Michigan recognized the validity of more than 300 marriage licenses issued to same-sex couples and those marriages. Arkansas recognized the more than 500 marriage licenses issued to same-sex couples there,[51] and the federal government had not taken a position on Arkansas's marriage licenses.

The legal issues surrounding same-sex marriage in the United States are determined by the nation's federal system of government, in which the status of a person, including marital status, is determined in large measure by the individual states. Prior to 1996, the federal government did not define marriage; any marriage recognized by a state was recognized by the federal government, even if that marriage was not recognized by one or more states, as was the case until 1967 with interracial marriage, which some states banned by statute.

Civil same-sex marriage ceremony being performed in San Francisco City Hall in June 2008.

Prior to 2004, same-sex marriage was not performed in any U.S. jurisdiction. It was subsequently legalized in different jurisdictions through legislation, court rulings,[52] tribal council rulings,[53] and popular vote in referenda.[54][55][56]

The Supreme Court's ruling in Obergefell renders moot any remaining legal challenges, as it specifically orders states to both issue marriage licenses to same-sex couples, and to recognize as valid marriages performed in other states.[57]

Federal law

According to the federal government's Government Accountability Office (GAO) in 2004, 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.[58]

Since July 9, 2015, married same-sex couples throughout the United States have equal access to all the federal benefits that married opposite-sex couples have.[59]

The Defense of Marriage Act (DOMA) was enacted in 1996. DOMA's Section 2 says that no state needs to recognize the legal validity of a same-sex relationship even if recognized as marriage by another state. It purports to relieve a state of its reciprocal obligation to honor the laws of other states as required by the Constitution's full faith and credit clause.[60] Even before DOMA, however, states sometimes refused to recognize a marriage from another jurisdiction if it was counter to its "strongly held public policies".[61] Most lawsuits that seek to require a state to recognize a marriage established in another jurisdiction argue on the basis of equal protection and due process, not the full faith and credit clause.[lower-alpha 7]

DOMA's Section 3 defined marriage for the purposes of federal law as a union of one man and one woman.[64] It was challenged in the federal courts. 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 is unconstitutional under the equal protection clause of the U.S. Constitution.[65] Beginning in 2010, eight federal courts found DOMA Section 3 unconstitutional in cases involving bankruptcy, public employee benefits, estate taxes, and immigration.[66][67][68] On October 18, 2012, the Second Circuit Court of Appeals became the first court to hold sexual orientation to be a quasi-suspect classification and applied intermediate scrutiny to strike down Section 3 of DOMA as unconstitutional in Windsor v. United States.[69] The U.S. Supreme Court ruled in Windsor on June 26, 2013, that Section 3 violated the Fifth Amendment.[70][lower-alpha 8]

As a result of the Windsor decision, married same-sex couples—regardless of domicile—have federal tax benefits (including the ability to file joint federal income tax returns), military benefits, federal employment benefits, and immigration benefits.[71][72][73][74] In February 2014, the Justice Department expanded federal recognition of same-sex marriages to include bankruptcies, prison visits, survivor benefits and refusing to testify against a spouse.[75] Likewise in June 2014, family medical leave benefits under the Family Medical Leave Act 1975 were extended to married same-sex couples.[76] With respect to social security and veterans benefits, same-sex married couples are eligible for full benefits from the Veterans Affairs (VA) and the Social Security Administration (SSA). Prior to the Supreme Court's ruling in Obergefell v. Hodges on June 26, 2015, the VA and SSA could provide only limited benefits to married same-sex couples living in states where same-sex marriage was not legal.[77][78] Effective March 27, 2015, the definition of spouse under the Family and Medical Leave Act of 1993[79] includes employees in a same-sex marriage regardless of state of residence.[80] Following the Obergefell decision, the Justice Department extended all federal marriage benefits to married same-sex couples nationwide.[59]

The federal government recognizes the marriages of same-sex couples who married in certain states in which same-sex marriage was legal for brief periods between the time a court order allowed such couples to marry and that court order was stayed, including Michigan. The federal government also recognized marriages performed in Utah from December 20, 2013 to January 6, 2014, even while the state didn't. Under similar circumstances, the federal government never took a position on Indiana or Wisconsin's marriages performed in brief periods, though it did recognize them once the respective states announced they would do so. It had not taken a position with respect to similar marriages in Arkansas[81] prior to the Obergefell decision legalizing and recognizing same-sex marriages in all 50 states.

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 Senate, but was ultimately defeated in both houses of Congress.[82] On April 2, 2014, the Alabama State House adopted a resolution calling for a constitutional convention to propose an amendment to ban same-sex marriage nationwide.[83]

State and territorial recognition

Same-sex marriages are licensed in and recognized by all U.S. states and Washington, D.C., as well as all U.S. territories except American Samoa.[84] On July 3, 2015, the Attorney General for American Samoa stated "we are reviewing the opinion [Obergefell v. Hodges] and its potential applicability to American Samoa, and will provide comment when it is completed."[85] On January 6, 2016, Alabama's Chief Justice, Roy Moore, issued a ruling forbidding state officials from issuing marriage licenses to same-sex couples.[86] The ruling had no effect and all Alabama counties continued either issuing marriage licenses to all couples or not issue licenses at all, and in May 2016 Moore was charged with ethics violations by the state Judicial Inquiry Commission for the ruling,[87] subsequently being suspended from the bench for the remainder of his term on September 30 of that year.[88]

Counties not issuing marriage licenses

Counties issuing marriage licenses to all couples (blue) and counties issuing to no one (grey) as of June 2017

Officials of nine counties in two states are still unwilling to issue licenses to same-sex couples as of June 2017. Those wishing to marry within the state must travel to another part of the state in order to obtain a license. However, some counties may require at least one person to be a resident of the county in order to receive a marriage license.[89]

Counties denying licenses to same-sex couples
(as of June 2017)[90][89]
Status AL TX Total, U.S.
Do not issue any marriage licenses 8 0 8
Issues licenses to opposite-sex couples only 0 1 1
Total, by state 8 1 9
Percent of state population in said counties 6.0 0.006 0.09

Parental rights

Post-Obergefell, six states have, on occasion, attempted to deny same-sex couples full adoption rights to varying degrees. In Arkansas, Florida, Indiana, and Wisconsin, same-sex couples have been met with rejection when trying to get both parents' names listed on the birth certificate. Alabama's highest court attempted to void an adoption decree obtained by a same-sex couple in Georgia, but the U.S. Supreme Court reversed, restoring joint custody to the adoptive mother on March 7, 2016. Mississippi had once banned same-sex couples from adopting, but the law requiring this was ruled unconstitutional by the United States District Court for the Southern District of Mississippi on March 31, 2016. The ruling was described as having the effect of making same-sex adoption essentially legal in all 50 states.[94][95]

On June 26, 2017, the Supreme Court ruled by a 6-3 vote in the case of Pavan v. Smith that under their decision in Obergefell, same-sex couples must be treated equally to opposite-sex couples in the issuance of birth certificates. In December 2016, the Supreme Court of Arkansas upheld a state law only allowing opposite-sex couples to be automatically listed as parents on their children's birth certificates, while prohibiting same-sex couples from being allowed the same on an equal basis. The Supreme Court summarily reversed the Arkansas Supreme Court, finding that the disparity in treatment was a violation of their decision in Obergefell.[96]

Tribal law

The Supreme Court decision legalizing same-sex marriage in the states and territories did not legalize same-sex marriage on Indian lands. In the United States, Congress (not the federal courts) has legal authority over Indian country. Thus, unless Congress passes a law regarding same-sex marriage on Indian tribes, federally recognized American Indian tribes have the legal right to form their own marriage laws.[97] As of the time of the Obergefell ruling, 24 tribal jurisdictions legally recognize same-sex marriage. Some tribes have passed legislation specifically addressing same-sex relationships and some specify that state law and jurisdiction govern tribal marriages. As of June 2017, same-sex marriage is legally recognized in 38 tribal jurisdictions.

Local laws prior to Obergefell v. Hodges

States and territories that fully licensed/recognized same-sex marriage

Note: This table shows only states that licensed and recognized same-sex marriages or had legalized them, before Obergefell v. Hodges. It does not include states that recognized same-sex marriages from other jurisdictions but did not license them.

 States and territories with same-sex marriage before Obergefell v. Hodges.
State or territory Population[98] Date of Enactment/Ruling Date Effective Legalization method Details
Alaska 736,732 October 12, 2014 October 17, 2014 Federal court decision U.S. District Court for the District of Alaska ruling in Hamby v. Parnell.[99]
Arizona 6,731,484 October 17, 2014 October 17, 2014 Federal court decision U.S. District Court for the District of Arizona ruling in Connolly v. Jeanes and in Majors v. Horne .[100]
California 38,802,500 May 15, 2008 June 16, 2008 State court decision → (Overturned by constitutional ban) California Supreme Court ruling in In re Marriage Cases. Ceased via state constitutional amendment after Proposition 8 passed on November 5, 2008.
August 4, 2010 June 28, 2013 Federal court decision → legislative statute U.S. District Court for the Northern District of California ruling in Perry v. Schwarzenegger, finding Proposition 8 unconstitutional. Stayed during appeal, affirmed by the Ninth Circuit Court of Appeals as Perry v. Brown. Certiorari granted and appealed as Hollingsworth v. Perry to the U.S. Supreme Court; the high court dismissed Hollingsworth for lack of standing and vacated the Ninth Circuit decision below, resulting with the original decision in Perry left intact.[101] Gender-neutral marriage bill passed by the California State Legislature and signed into law took effect January 1, 2015.[102]
Colorado 5,355,866 July 9, 2014 October 7, 2014 State court decision Colorado district court ruling in Brinkman v. Long
July 23, 2014 Federal court decision U.S. District Court for the District of Colorado ruling in Burns v. Hickenlooper
Connecticut 3,596,677 October 10, 2008 November 12, 2008 State court decision → legislative statute Connecticut Supreme Court ruling in Kerrigan v. Commissioner of Public Health; incorporated into state statutes in April 2009.
Delaware 935,614 May 7, 2013 July 1, 2013 Legislative statute Passed by the Delaware General Assembly and signed into law by the Governor of Delaware.
District of Columbia 658,893 December 18, 2009 March 9, 2010 Legislative statute Passed by the Council of the District of Columbia.
Florida 19,893,297 August 21, 2014 January 6, 2015 Federal court decision U.S. Northern District of Florida ruling in Brenner v. Scott.
Guam 165,124 (not included in population total) June 5, 2015 June 9, 2015 Binding federal court precedent → Actions of territorial officials → Federal court decision → Legislative statute Attorney General Elizabeth Barrett-Anderson deferred to the controlling precedent set by the Ninth Circuit Court of Appeals in Latta v. Otter, ordering that marriage licenses for same-sex couples be processed immediately beginning April 15, 2015.[103] District Court of Guam ruling in Aguero v. Calvo upholding the earlier decision by the Ninth Circuit.[104] In August 2015, the Guam Legislature passed a Marriage Equality Act statute, incorporating the decision.[105]
Hawaii 1,419,561 November 13, 2013 December 2, 2013 Legislative statute Hawaii Marriage Equality Act passed by Hawaii State Legislature and signed into law by the Governor of Hawaii.
Idaho 1,634,464 October 7, 2014 October 15, 2014 Federal court decision U.S. District Court for the District of Idaho ruling in Latta v. Otter,[106] upheld by the Ninth Circuit.[107]
Illinois 12,880,580 November 20, 2013 June 1, 2014 Legislative statute Passed by the Illinois General Assembly and signed into law by the Governor of Illinois.
Indiana 6,596,855 September 4, 2014 October 6, 2014 Federal court decision U.S. District Court for the Southern District of Indiana ruling in Baskin v. Bogan. The Seventh Circuit Court of Appeals affirmed the district court's ruling.[108]
Iowa 3,107,126 April 3, 2009 April 27, 2009 State court decision Iowa Supreme Court ruling in Varnum v. Brien. One same-sex couple obtained a marriage licensed and married before initial ruling was stayed.[109]
Maine 1,330,089 November 6, 2012 December 29, 2012 Initiative statute Proposed by initiative as referendum Question 1, approved.
Maryland 5,976,407 November 6, 2012 January 1, 2013 Legislative statute → referendum Civil Marriage Protection Act passed by the Maryland General Assembly; petitioned to referendum Question 6, upheld.
Massachusetts 6,745,408 November 18, 2003 May 17, 2004 State court decision Massachusetts Supreme Judicial Court ruling in Goodridge v. Department of Public Health.
Minnesota 5,457,173 May 14, 2013 August 1, 2013 Legislative statute Passed by the Minnesota Legislature and signed into law by the Governor of Minnesota.
Montana 1,023,579 November 19, 2014 November 19, 2014 Federal court decision U.S. District Court for the District of Montana ruling in Rolando v. Fox.[36]
Nevada 2,839,099 October 7, 2014 October 9, 2014 Federal court decision → legislative statute Ninth Circuit Court of Appeals ruling in Sevcik v. Sandoval. The Ninth Circuit Court of Appeals overturned the U.S. District Court for the District of Nevada's ruling.[110] In 2017, the Nevada Legislature passed a bill that codified the Obergefell v. Hodges ruling in the state. The Governor of Nevada signed the bill and it went into effect on July 1.[111][112]
New Hampshire 1,326,813 June 3, 2009 January 1, 2010 Legislative statute Passed by New Hampshire General Court and signed into law by the Governor of New Hampshire.
New Jersey 8,938,175 September 27, 2013 October 21, 2013 State court decision New Jersey Superior Court ruling in Garden State Equality v. Dow
New Mexico 2,085,572 December 19, 2013 December 19, 2013 State court decision New Mexico Supreme Court ruling in Griego v. Oliver.
New York 19,746,227 June 24, 2011 July 24, 2011 Legislative statute Marriage Equality Act passed by New York State Legislature and signed into law by the Governor of New York.
North Carolina 9,943,964 October 10, 2014 October 10, 2014 Federal court decision U.S. District Court for the Western District of North Carolina ruling in General Synod of the United Church of Christ v. Cooper.[113]
Oklahoma 3,878,051 July 18, 2014 October 6, 2014 Federal court decision U.S. District Court for the Northern District of Oklahoma ruling in Bishop v. Oklahoma. The Tenth Circuit affirmed the ruling in Bishop v. Smith.[114]
Oregon 3,970,239 May 19, 2014 May 19, 2014 Federal court decision → Legislative statute U.S. District Court for the District of Oregon ruling in Geiger v. Kitzhaber. In July 2015, the Oregon Legislature passed a gender-neutral marriage law, incorporating the decision.[115]
Pennsylvania 12,787,209 May 20, 2014 May 20, 2014 Federal court decision U.S. District Court for the Middle District of Pennsylvania ruling in Whitewood v. Wolf.
Rhode Island 1,055,173 May 2, 2013 August 1, 2013 Legislative statute Passed by the Rhode Island General Assembly and signed into law by the Governor of Rhode Island.
South Carolina 4,832,482 November 12, 2014 November 20, 2014 Federal court decision U.S. District Court for the District of South Carolina ruling in Condon v. Haley.[116]
Utah 2,942,902 June 25, 2014 October 6, 2014 Federal court decision U.S. District Court for the District of Utah ruling in Kitchen v. Herbert. Marriages licensed between December 20, 2013, and January 6, 2014. The Tenth Circuit Court of Appeals affirmed the district court ruling in Kitchen v. Herbert.
Vermont 626,562 April 7, 2009 September 1, 2009 Legislative statute Passed by the Vermont General Assembly, overriding Governor Jim Douglas' veto.
Virginia 8,326,289 July 28, 2014 October 6, 2014 Federal court decision U.S. District Court for the Eastern District of Virginia ruling in Bostic v. Rainey.[117] The Fourth Circuit Court of Appeals affirmed the U.S. district court ruling in Bostic v. Schaefer.[118]
Washington (state) Washington 7,061,530 November 6, 2012 December 6, 2012 Legislative statute → referendum Passed by the Washington State Legislature; suspended by petition and referred to Referendum 74, approved.
West Virginia 1,850,326 October 9, 2014 October 9, 2014 Binding federal court precedent → Actions of state officials → Federal court decision Governor Earl Ray Tomblin and state Attorney General Patrick Morrisey, recognizing the precedent established by the Fourth Circuit ruling in Bostic v. Schaefer, dropped their defense of the state's same-sex marriage ban.[119] The U.S. District Court for the Southern District of West Virginia in McGee v. Cole overturned West Virginia's statutory ban on same-sex marriage on November 7, 2014.[120]
Wisconsin 5,757,564 September 4, 2014 October 6, 2014 Federal court decision U.S. District Court for the Western District of Wisconsin ruling in Wolf v. Walker. The Seventh Circuit Court of Appeals affirmed the district court's ruling.[121]
Wyoming 584,153 October 17, 2014 October 21, 2014 Federal court decision U.S. District Court for the District of Wyoming ruling in Guzzo v. Mead.[122]
Total 221,434,635 (69.4% of the U.S. population)

Debate

Support

2011 protest in New Jersey by Garden State Equality in support of same-sex marriage and against deportation of LGBT spouses.

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.[123] Fernando Espuelas argues that same-sex marriage should be allowed because same-sex marriage extends a civil right to a minority group.[124] According to an American history scholar, Nancy Cott, "there really is no comparison, because there is nothing that is like marriage except marriage."[125]

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."[126]

In the United States such professional organizations as the American Psychiatric Association, American Psychological Association, American Sociological Association, American Anthropological Association, American Medical Association, American Academy of Pediatrics, American Academy of Nursing, and National Association of Social Workers have said that claims that the legal recognition of marriage for same–sex couples undermines the institution of marriage and harms children are inconsistent with the scientific evidence supporting the conclusions: that homosexuality is a normal expression of human sexuality that is not chosen; that gay and lesbian people form stable, committed relationships essentially equivalent to heterosexual relationships; that same-sex parents are no less capable than opposite-sex parents to raise children; that no civilization or viable social order depends on an institution of exclusive heterosexual marriage; and that the children of same-sex parents are no less psychologically healthy and well-adjusted than children of opposite-sex parents.[127][128][129][130][131][132][133][134] The body of research strongly supports the conclusion that discrimination by the federal government between married same-sex couples and married opposite-sex couples in granting benefits unfairly stigmatizes same-sex couples. The research also contradicts the stereotype-based rationales advanced to support passage of DOMA that the Equal Protection Clause was designed to prohibit.[135]

The 2012 Democratic Party Platform used the term "marriage equality" in its expression of support.[136]

Role of social media

Supporters of the legalization of same-sex marriage have successfully used social media websites such as Facebook to help achieve that goal.[137][138][139] Some have argued that the successful use of social media websites by LGBT groups has played a key role in the defeat of religion-based opposition.[140]

One of the largest scale uses of social media to mobilize support for same-sex marriage preceded and coincided with the arrival at the US Supreme Court of high-profile legal cases for Proposition 8 and the Defense of Marriage Act in March 2013. The 'red equals sign' project started by the Human Rights Campaign was an electronic campaign primarily based on Facebook that encouraged users to change their profile images to a red equal sign to express support for same-sex marriage.[141] At the time of the court hearings it was estimated that approximately 2.5 million Facebook users changed their profile images to a red equals sign.[142]

Opposition

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, concerns that changes to the definition of marriage would lead to the inclusion of polygamy or incest, natural law-based reasoning, and tradition.[143] The Southern Baptist Convention adopted a statement in June 2003 that legalizing same-sex relationships would "convey a societal approval of a homosexual lifestyle, which the Bible calls sinful and dangerous both to the individuals involved and to society at large".[144] 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 claim 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.[145][146][147][148] 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.[149] Opponents of same-sex marriage have claimed that redefining marriage to include same-sex relationships would have harmful effects on biological family, children's rights, and social welfare.[150][151] Stanley Kurtz of the Weekly Standard has written that same-sex marriage would eventually lead to the legalization of polygamy and polyamory, or group marriage, in the United States.[152]

The funding of the amendment referendum campaigns has been an issue of great dispute. Both judges[153][154] and the IRS[155] have ruled that it is either questionable or illegal for campaign contributions to be shielded by anonymity. In February 2012, the National Organization for Marriage vowed to spend in Washington legislative races to defeat the Republican state senators who voted for same-sex marriage.[156]

Politicians and media figures

President Barack Obama interviewed by Robin Roberts of ABC's Good Morning America, in the Cabinet Room of the White House, May 9, 2012.

President Obama's views on same-sex marriage have varied over the course of his political career and become more consistently supportive of same-sex marriage rights over time. In the 1990s, he had supported same-sex marriage while campaigning for the Illinois Senate.[157][158] During the 2008 presidential campaign, he said: "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."[159] He opposed the 2008 California referendum that aimed at reversing a court ruling establishing same-sex marriage there.[160] In 2009, he opposed two opposing federal legislative proposals that would have banned or established same-sex marriage nationally, stating that each state had to decide the issue.[161][162] In December 2010, he expressed support for civil unions with rights equivalent to marriage and for federal recognition of same-sex relationships. He opposed a federal constitutional amendment to ban same-sex marriage.[163] He also stated that his position on same-sex marriage was "evolving" and that he recognized that civil unions from the perspective of same-sex couples was "not enough".[164] On May 9, 2012, President Obama became the first sitting president to say he believed that same-sex couples should be allowed to marry. He still said the legal question belonged to the states.[13][165] In October 2014, Obama told an interviewer that his view had changed:[166]

Ultimately, I think the Equal Protection Clause does guarantee same-sex marriage in all fifty states. But, as you know, courts have always been strategic. There have been times where the stars were aligned and the Court, like a thunderbolt, issues a ruling like Brown v. Board of Education, but that's pretty rare. And, given the direction of society, for the Court to have allowed the process to play out the way it has may make the shift less controversial and more lasting.

Former presidents Bill Clinton[167] and Jimmy Carter,[168] former vice presidents Dick Cheney,[169] Al Gore,[170] Walter Mondale,[171] and Joe Biden have voiced their support for legal recognition, as have former first ladies Laura Bush[172] and Hillary Clinton.[173] Former president George H. W. Bush and his wife former first lady Barbara Bush have served as witnesses to a same-sex wedding, but neither has publicly stated whether this means they support same-sex marriage in general;[174] George W. Bush reportedly offered to officiate the same wedding,[175] but has similarly not made a public statement regarding his position on the issue (as president, he was opposed). Fifteen U.S. senators announced their support in the spring of 2013.[176] By April 2013 a majority of the Senate had expressed support for same-sex marriage.[177] Senator Rob Portman of Ohio became the first sitting Republican senator to endorse same-sex marriage in March 2013,[178] followed by Senator Mark Kirk of Illinois in April,[179] Lisa Murkowski of Alaska in June,[180] and Susan Collins of Maine a year later.[181]

During the 2008 presidential election campaign, Republican 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."[182]

When a U.S. district court invalidated the California referendum that ended same-sex marriages there in 2008, former Speaker of the House Newt Gingrich said it showed "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".[183] By the end of 2012, Gingrich was prepared to accept civil—but not religious—same-sex marriages and encouraged the Republican Party to accept the fact of same-sex marriage was certain to become legal in more and more states.[184]

In an interview on The O'Reilly Factor 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?'"[185][186]

On his radio show in August 2010, commentator Rush Limbaugh said: "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."[187]

Public opinion

A CNN poll on February 19, 2015 found that 63% of Americans believe gays and lesbians have a constitutional right to marry, up from 49% in August 2010.[188] In the wake of the Obergefell decision, CNN polling found that 59% of Americans felt the decision was correct.[189]

A Washington Post/ABC News poll from February–March 2014 found a record high of 59% of Americans approve of same-sex marriage, with only 34% opposed and 7% with no opinion.[190] In May 2013, a Gallup poll showed that 53% of Americans would vote for a law legalizing same-sex marriage in all 50 states. Three previous readings over the course of a year consistently showed support at 50% or above. Gallup noted: "Just three years ago, support for gay marriage was 44%. The current 53% level of support is essentially double the 27% in Gallup's initial measurement on gay marriage, in 1996."[191] Some commentators, however, have noted instances where polling data has understated voter opposition to referendums banning same-sex marriage.[192] One 2010 study concluded that "polls on gay marriage ballot initiatives generally under-estimate the opposition to gay marriage by about seven percentage points".[193]

As of 2013, public support for same-sex marriage in the United States has solidified above 50%.[194][195][196] Public support for same-sex marriage has grown at an increasing pace since the 1990s.[10] In 1996, just 25% of Americans supported legalization of same-sex marriage. Polls have shown that support is identical among whites and Hispanics, while support for same-sex marriage trails among blacks.[197] Polling trends in 2010 and 2011 showed support for same-sex marriage gaining a majority, although the difference is within the error limit of the analysis.[198] On May 20, 2011, Gallup reported majority support for same-sex marriage for the first time in the country.[199] In June 2011, two prominent polling organizations released an analysis of the changing trend in public opinion about same-sex marriage in the United States, concluding that "public support for the freedom to marry has increased, at an accelerating rate, with most polls showing that a majority of Americans now support full marriage rights for all Americans."[200] Gallup's annual Values and Beliefs poll, conducted in May 2017, found that 64% of U.S. adults say same-sex marriages should be recognized by the law as valid, the highest percentage of support recorded to date by the polling firm.[201]

Effects of same-sex marriage

Economic impact on same-sex couples

Until the Supreme Court's June 2013 ruling in United States v. Windsor required the federal government to treat legally married same-sex couples on an equal basis with heterosexual married couples, same-sex married couples faced severe disadvantages. The federal government did not recognize those marriages for any purpose. According to a 1997 General Accounting Office study, at least 1,049 U.S. federal laws and regulations include references to marital status.[202] A 2004 study by the Congressional Budget Office found 1,138 statutory provisions "in which marital status is a factor in determining or receiving 'benefits, rights, and privileges.'"[203] Many of these laws govern property rights, benefits, and taxation. Same-sex couples whose marriages are not recognized by the federal government are ineligible for spousal and survivor Social Security benefits and are ineligible for the benefits due the spouse of a federal government employee.[203] One study found that the difference in Social Security income for same-sex couples compared to opposite-sex married couples was per year.[204]

Compared to similarly situated opposite-sex married couples, same-sex couples faced the following financial and legal disadvantages:

Some 7,400 companies were offering spousal benefits to same-sex couples as of 2008. In states that recognized same-sex marriages, same-sex couples could continue to receive those same benefits only if they married.[206] Only 18% of private employers offered domestic partner health care benefits.[204]

Same-sex couples face the same financial constraints of legal marriage as opposite-sex married couples, including the marriage penalty in taxation.[203] 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.[203]

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.[203]

Mental health

Based in part on research that has been conducted on the adverse effects of stigmatization of gays and lesbians, 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.[135]

Several psychological studies[207][208][209] 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.[210]

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. 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.[211]

At the Perry v. Schwarzenegger trial, expert witness Ilan Meyer testified that the mental health outcomes for gays and lesbians would improve if laws such as Proposition 8 did not exist because "when people are exposed to more stress...they are more likely to get sick..." and that particular situation is consistent with laws that say to gay people "you are not welcome here, your relationships are not valued." Such laws have "significant power", he said.[212]

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.[213][214] 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.

A study by the Columbia Mailman School of Public Health found that gay men in Massachusetts visited health clinics significantly less often following the legalization of same-sex marriage in that state.[215]

Case law

United States case law regarding same-sex marriage:

1970s

1980s

1990s

2000s

2010s

Challenges to DOMA Section 3
California Proposition 8
Same-sex marriage rights

See also

Legislation
Miscellaneous

Notes

  1. ↑ The rulings striking down same-sex marriage bans are from U.S. district courts in the following states: Utah,[14] Oklahoma,[15] Virginia,[16] Texas,[17] Michigan,[18] Idaho,[19] Oregon,[20] Pennsylvania,[21] South Dakota,[22] Wisconsin,[23] Indiana,[24] Kentucky,[25] Colorado,[26] Florida,[27] North Carolina,[28] Alaska,[29] Arizona,[30] Wyoming,[31] Kansas,[32] Missouri,[33] West Virginia,[34] South Carolina,[35] Montana,[36] Arkansas,[37] Mississippi,[38] South Dakota,[39] and Alabama.[40]
  2. ↑ The cases (and states) are: Wright v. Arkansas (Arkansas),[41] In re Marriage of J.B. and H.B. and In the Matter of the Marriage of A.L.F.L. and K.L.L. (Texas),[42] Brinkman v. Long (Colorado),[43] Pareto v. Ruvin and Huntsman v. Heavilin (Florida),[44] In Re Costanza and Brewer (Louisiana),[45] and State v. Florida (Missouri).
  3. ↑ Barrier v. Vasterling, Missouri Circuit Court, 16th Judicial Circuit[46]
  4. ↑ Robicheaux v. Caldwell (Louisiana), Conde v. Rius (Puerto Rico)[47]
  5. ↑ Borman v. Pyles-Borman (Tennessee)
  6. ↑ The cases reversed (and affected states) are: Bourke v. Beshear and Love v. Beshear (Kentucky), DeBoer v. Snyder (Michigan), Obergefell v. Himes and Henry v. Himes (Ohio), and Tanco v. Haslam (Tennessee).
  7. ↑ Among many examples: (1) the U.S. District Court ruling in Bourke v. Beshear, which required Kentucky to recognize same-sex marriages from Canada and several U.S. states, was decided on equal protection grounds alone. The plaintiffs claimed that Kentucky's ban violated the full faith and credit clause, but the court found it unnecessary to address that argument.[62] and (2) the plaintiffs in Robicheaux v. Caldwell, who sought Louisiana's recognition of their out-of-state marriages, argued only on the basis of equal protection and due process. One of the Louisiana statutes they challenged made clear the state's assertion of its right to deny recognition to the legal act of another state: "A purported marriage between persons of the same sex violates a strong public policy of the state of Louisiana". (emphasis added)[63]
  8. ↑ Other cases that sought review by the U.S. Supreme Court were Golinski v. Office of Personnel Management, Gill v. Office of Personnel Management, Massachusetts v. United States Department of Health and Human Services, and Pedersen v. Office of Personnel Management.
  9. ↑ In early 2013 the IRS recognized the community property and income of same-sex partners in community property states.[205]

References

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  3. ↑ "Obergefell et al. v. Hodges, Director, Ohio, Department of Health, et al." (PDF). supremecourt.gov. Retrieved June 26, 2015.
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Bibliography

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