Gay Marriage Ripe For Decision In 3 Courts
 
Washington, DC, USA. Three years after its historic court ruling legalizing same-sex marriage, Massachusetts stands alone in blessing gay marriages — more than 9,000 to date. Its example has spurred no imitators, but lots of backlash.

Following the festive scenes of gay and lesbian brides and grooms waiting in long lines to wed in the Bay State on May 17, 2004, 23 states fortified their state constitutions to withstand judicial edicts like the one in Massachusetts, joining four other states that already had constitutional prohibitions.

Even in Massachusetts, a swell of opposition nearly forced a 2008 statewide vote on a constitutional gay marriage ban. But after three-and-a-half years of rancorous debate and a change in administrations, Bay State lawmakers on June 14, 2007, narrowly upheld the court-imposed gay marriage law – protecting it from a constitutional ban for at least five more years.

 

In addition to affirmation of Massachusetts’s law, gay-rights groups can point to progress in expanding legal acceptance of gay and lesbian relationships in several other states:

New Hampshire Gov. John Lynch (D) signed a law in May calling for same-sex civil unions, making the state the fourth to grant gay couples all state-level rights and benefits of marriage, but without the title.

New Jersey began issuing civil union licenses to same-sex couples in February 2007, joining Vermont and Connecticut in pioneering the marriage alternative.

In April and May, Washington and Oregon joined California, Hawaii and Maine in allowing same-sex couples to register as domestic partners, bestowing certain spousal privileges such as rights to hospital visits, approval of organ donations and inheritance without a will.

Also in April, New York Gov. Eliot Spitzer (D) proposed a bill that would permit same-sex couples in the Empire State to wed. Although he acknowledged the legislature was not likely to approve such a bill, Eliot is the first governor to propose a same-sex marriage law.

But the key question is whether any states will follow the Massachusetts Supreme Judicial Court’s 4-3 ruling in November 2003. The court found that equal-protection guarantees in the state constitution made it illegal to deny full-fledged marriage to gays and lesbians.

All eyes now are on the highest courts in California, Connecticut and Maryland, where decisions on the constitutionality of gay marriage are likely this year. Maryland’s justices already have heard arguments on a lower-court ruling that found a right to same-sex marriage. Awaiting decision in California and Connecticut are appeals that will test whether civil unions and domestic partnerships are adequate substitutes for matrimony.

Even if the number of gay weddings in the United States is minimal so far, the uproar over same-sex marriage has been deafening. The issue has rocked every state capital and inflamed passions in Congress and presidential campaigns, as advocates of equal rights for gays and lesbians are pitted against religious and other socially conservative groups committed to protecting traditional marriage.
 

National polls indicate a majority of Americans oppose same-sex marriage. However, a poll released in August 2006 by the Pew Forum on Religion & Public Life indicates 54 percent approve of civil unions as an alternative to same-sex marriage.
 

Outside the United States, same-sex marriage is slowly gaining ground. The Netherlands legalized gay marriage in 2001, followed by Belgium and the Canadian provinces of Ontario and British Columbia in 2003; Quebec, Canada, in 2004; Spain in 2005; and South Africa in 2006.
 

As with many U.S. civil rights issues, courts have held the keys to marriage rights for homosexual couples. Only one state legislature not under court order — California in 2005 — has passed a bill to legalize same-sex marriage, but Gov. Arnold Schwarzenegger (R) vetoed the measure.
 

While the Massachusetts ruling touched off the latest frenzy of action on gay marriage, a Hawaiian circuit court judge in 1996 was the first in the nation to side with a same-sex couple denied a marriage license. Rather than risk a state Supreme Court decision in favor of gay unions, Hawaiian voters in 1998 rewrote their state constitution to give lawmakers, not the courts, the right to define marriage, and lawmakers subsequently voted to prohibit gay nuptials.
 

The Hawaii case sparked similar action in Congress, resulting in then-President Bill Clinton signing the Defense of Marriage Act (DOMA) in 1996. DOMA codified states’ right to decide whether to allow or ban same-sex marriage and defined marriage as a union between a man and a woman for federal purposes such as claiming tax breaks for spouses and receiving deceased partners’ Social Security benefits.
 

Between 1973 and 2005, 42 states enacted statutes similar to the federal DOMA. But statutory bans were seen as providing limited protection that could be trumped if the courts found — as in Massachusetts — that denying a marriage license to a same-sex couple violated a right granted by a state constitution.
 

The first states to enshrine bans on same-sex marriage in their constitutions acted before 2004: Alaska, Nebraska and Nevada. Hawaii voters in 1998 also used their constitution to block gay marriage, though its amendment differs from those now passed in 26 other states. It cuts judges out of deciding gay-marriage rights but doesn’t include a definition of marriage as a union between a man and woman.
 

After Massachusetts issued the first marriage licenses to same-sex couples, voters in 13 states in 2004 rushed to rewrite their constitutions to limit marriage to heterosexuals. Two more states passed constitutional bans on gay marriage in 2005 and eight more in 2006. Arizona in 2006 became the first and only state so far to reject a ballot initiative to ban same-sex marriage.
 

Only three states have no laws either condoning or prohibiting same-sex marriage: New Mexico, New York and Rhode Island.
 

Federal attempts to change the U.S. Constitution to prohibit same-sex marriage nationwide have faltered. In 2004, President Bush announced his support for an amendment to ban gay marriage, but the Republican-controlled Congress in both 2004 and 2006 was unable to muster the two-thirds majority needed to send the issue on for ratification by 38 state legislatures. In 2007, the new Democratic-led Congress has kept the issue off its agenda.
 

State courts that have considered challenges from gay and lesbian couples have delivered conflicting verdicts on whether same-sex partners have a right under their state constitutions to wed.
 

The highest court in Massachusetts found it unconstitutional to deny same-sex couples the right to marry, requiring legislators to pass a law legalizing marriage. High courts in Vermont (1999) and New Jersey (2006) required lawmakers to extend the rights and benefits of marriage, but stopped short of requiring the title of marriage.
 

In contrast, the highest courts in Washington and New York found no constitutional guarantee to marriage or its benefits. Instead the justices in both states ruled in 2006 that only the legislature could decide whether marriage should be extended to same-sex couples.
 

The same-sex marriage controversy also is breeding a host of legal issues beyond the question of whether gays should be granted marriage licenses.
 

Cases in Michigan and Ohio question whether those states’ constitutional same-sex marriage bans might have unintended consequences. In February 2007, a Michigan appeals court held that the state’s ban prohibited public universities, state agencies and local governments from offering health insurance to partners of gay and lesbian employees. In Ohio, two lower courts cited the state’s gay marriage ban in denying protection under domestic violence laws to unmarried couples.
 

Michigan and Ohio are among 17 states whose constitutional gay-marriage bans are written broadly and go beyond defining marriage as a union between a man and a woman to potentially prohibiting other spousal rights.
 

As with traditional marriages, not all same-sex marriages and civil unions have lasted until “death do us part.” As a result, state courts also are beginning to deal with divorce, child custody and probate cases involving same-sex couples.
 

In 2006, a Virginia judge gave sole custody of a child to a biological mother who is separated from her partner in a Vermont civil union. The case still is being litigated in Vermont courts, which have ordered the non-biological parent to pay child support.

In May 2007, the Rhode Island Supreme Court agreed to hear a case determining whether a gay couple who wed in Massachusetts could divorce in Rhode Island, where the law is silent on the legality of same-sex marriage.

Also in the Ocean State, Attorney General Patrick C. Lynch broke new ground in February 2007 with a legal opinion making Rhode Island the first state to recognize same-sex marriages validly performed in Massachusetts. The opinion was sought after three Rhode Island state employees who married same-sex partners in Massachusetts asked for a change of marriage status in their personnel files.

Similarly, New Jersey’s attorney general concluded in February 2007 that the state would honor civil unions from Vermont and Connecticut and give civil-union status to California couples who have entered domestic partnerships. New Hampshire’s new civil union law includes a provision recognizing civil unions performed in other states.

Click the image below to learn more about same-sex policies in all 50 states: PDF (252KB)

You can find a great deal of information on same-sex marriage on these websites: The nonpartisan National Conference of State Legislatures offers background information; The Human Rights Campaign, the nation's largest gay rights advocacy group, has a Marriage Center webpage; DomaWatch.org, a project of Alliance Defense Fund, a conservative Christian organization based in Scottsdale, Ariz., tracks same-sex marriage litigation and legislation. The Washington D.C.-based Family Research Council, a conservative lobbying group opposed to same-sex marriage, has a Marriage and Family webpage; and Wikipedia, the free online encyclopedia, offers background and state-by-state timelines.

 

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Stateline.org will list other helpful resources as we find them. This "Backgrounder" is a work in progress and will be updated as warranted. Here are some facts at a glance in FAQ form:

 
What states allow same-sex couples to marry?

Massachusetts on May 17, 2004, became the first and only state to issue marriage licenses to same-sex couples who are residents. Massachusetts state law blocks out-of-state couples from marrying there. As of May 2007, more than 9,000 marriage licenses had been issued to same-sex partners. Gay-marriage opponents attempted to force a statewide vote in 2008 to forbid such unions, but the legislature voted to reject the measure at a June 14, 2007, Constitutional Convention.

For a period of time in 2004, marriage licenses were issued to same-sex couples in violation of state law in San Francisco, Sandoval County, N.M., New Paltz, N.Y., and Multnomah County, Ore. Courts intervened and invalidated these marriages.

On May 10, 2007, the Suffolk County Superior Court in Boston approved the legality of Massachusetts marriage licenses issued to some 170 gay couples from New York. At issue was a 2004 decision by then-Massachusetts Gov. Mitt Romney (R) prohibiting out-of-state gay couples to marry in the Bay State if their home state prohibited same-sex marriage. The Suffolk County court upheld Romney’s ruling on July 6, 2006, but ruled this year that gay New Yorkers who wed in Massachusetts before that date had valid licenses.

 
Where are same-sex couples currently suing for the right to marry?

 
Legal challenges seeking permission for gays and lesbians to marry are pending in five states: California, Connecticut, Iowa and Maryland. The highest courts in California, Connecticut and Maryland could rule in 2007.

Maryland’s high court heard arguments in December 2006 in an appeal contesting a January 2006 lower-court finding that the state’s statute banning marriage by same-sex couples violates the Equal Rights Amendment in the state constitution.

A lower court in Connecticut ruled in July 2006 that excluding gay couples from marriage does not violate the state constitution because the state’s civil union policy provides equal access to state spousal benefits. The case was appealed in November 2006 to the state Supreme Court, which is expected to take up the case this year.

On appeal to California's highest court is a case testing whether the state’s statutory ban on same-sex marriage violates the constitutional rights of gay couples, even though the state already grants spousal benefits to same-sex couples who register as domestic partners. A circuit court judge found the law unconstitutional in March 2005, although it was upheld on appeal. A similar lawsuit is pending in a trial court in Iowa.

 

 
Vermont created civil unions in response to a 1999 ruling by the state's Supreme Court ordering the Legislature to provide same-sex couples "the common benefits and protections that flow from marriage under Vermont law." Connecticut in April 2005 voluntarily became the second state to adopt civil unions. New Jersey in February 2007 began issuing licenses for civil unions after its Legislature — within weeks of an October 2006 state high court ruling similar to Vermont's — opted to adopt civil unions rather than marriage for same-sex couples. New Hampshire Gov. John Lynch (D) signed a law in May 2007 approving civil unions. Civil union laws in both New Jersey and New Hampshire recognize civil unions performed in other states.

California has a nearly identical scheme that allows couples to register as domestic partners and claim all of the state benefits conferred on husbands and wives. (California’s law was enacted in 1999 and extended to include all benefits in 2005).Oregon (2007) has a similarly broad domestic partnership law. Hawaii (1997), Maine (2004) and Washington (2007) have registries that allow same-sex couples to claim only certain benefits, including hospital visitation rights and inheritance without a will.

Unlike traditional marriages, civil unions and domestic partnerships are invalid outside the state in which they are granted and do not provide any federal marriage benefits. Federal protections conferred by marriage include 1,138 laws and policies, such as Social Security, family medical leave, federal taxation and immigration policy.

 
What is the Defense of Marriage Act (DOMA)?

 
Between 1973 and 2005, 42 states passed so-called Defense of Marriage statutes, which define marriage as solely a heterosexual union. Most of these laws are modeled after the federal Defense of Marriage Act, which was passed by Congress in 1996 and signed by President Bill Clinton. It bars federal recognition of same-sex marriages and allows states to ignore gay marriages performed elsewhere.

 
What about states without same-sex marriage bans?

 
Only three states now have no laws either condoning or prohibiting same-sex marriage: New Mexico, New York and Rhode Island. Rhode Island Attorney General Patrick C. Lynch broke new ground in February 2007 with a legal making Rhode Island the first state to recognize same-sex marriages validly performed in Massachusetts. 
 
Why enshrine same-sex marriage bans in state constitutions?

 
Constitutional amendments banning same-sex marriage are seen as the best way to prevent courts from ruling that statutory same-sex marriage bans are unconstitutional and to forbid legal recognition of same-sex marriages performed in other states. Twenty-six states have changed their state constitutions to define marriage as a union between a man and a woman: Alabama, Alaska, Arkansas, Colorado, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia and Wisconsin. In addition, Hawaii has a constitutional amendment prohibiting state courts from legalizing same-sex marriage, instead leaving the decision to the Legislature, which currently prohibits same-sex marriage.

 
Are all constitutional amendments banning same-sex marriage alike?

 
No. In nine states, amendments simply define marriage as a union between a man and a woman. But in 17 states — Alabama, Arkansas, Georgia, Kansas, Kentucky, Louisiana, Michigan, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia and Wisconsin — constitutional amendments go beyond defining marriage. In two of the 17 states — South Dakota and Nebraska — amendments specifically prohibit civil unions and domestic partnerships. Amendments in the other 15 states contain broad language interpreted as prohibiting any type of spousal rights.

 
How do same-sex marriage bans affect employee benefits?

 
Courts and attorneys general in several states have concluded that prohibitions on same-sex marriage are not intended to prevent same-sex couples from sharing health benefits.

But gay-rights advocates are concerned that some broadly written same-sex marriage constitutional bans can be interpreted as prohibiting businesses and governments from extending benefits to employees' same-sex partners. An appeals court in Michigan ruled in February 2007, affirming the state attorney general’s finding that local and state governments, including state universities, cannot offer employee benefits to same-sex partners because of the state's same-sex marriage ban.

 

Are there legal challenges against the federal Defense of Marriage Act (DOMA)?
  
In May 2006 the U.S. Court of Appeals for the 9th Circuit dismissed an appeal brought by two men who challenged the constitutionality of the federal Defense of Marriage Act, and the U.S. Supreme Court declined to consider the case in October. A 2004 federal court DOMA case – Bishop v. Oklahoma – is on hold pending an appeal to the Tenth Circuit Court of Appeals of a partial denial of the defendant’s motion to dismiss.
 
What is the Federal Marriage Amendment (FMA)?

 
President Bush in 2004 gave his support to the idea of a federal marriage amendment (FMA) to the U.S. Constitution that would ban same-sex marriage nationwide. Several versions of an FMA were introduced and voted on in Congress between 2004 and 2006, but none came close to receiving the required two-thirds support needed to pass. Federal amendments also would require majority approval in 38 of the states’ legislatures to be ratified into the U.S. Constitution. The president can offer his opinion but is not involved in the amendment process.

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