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SAME-SEX MARRIAGE | Overview | State Materials | Federal Materials | International Materials | | Secondary Sources | Encyclopedias | Treatises | On-line Resources | | Advocacy Groups | Historical Timeline| Legal recognition of same-sex marriage continues to be one of the most socially and legally controversial issues of the day. The legality of same-sex marriage varies greatly by jurisdiction both in the United States and around the world. The concept of same-sex civil marriage has wide implications on employee benefits, domestic relations, government entitlements, taxes, and estate and inheritance rights, to name but a few areas of law affected. This guide is intended to give the reader a brief overview of the legal status of same-sex marriage in the United States and across the globe as links to full text documents such as statutes, cases, and legal commentary. As of June, 2009, the following jurisdictions in the United States issue same-sex marriage licenses that are legally identical to opposite-sex marriage licenses.
Same-sex marriage licenses are not issued in the following states, but those from other jurisdictions are recognized.
Other jurisdictions in the United States that offer civil unions or domestic partnerships granting nearly all or some of the state-recognized rights of marriage to same-sex couples but not marriage licenses.
The civil unions of New Jersey are explicitly defined as offering all the rights and responsibilities of marriage under state (though not federal) law to same-sex couples. Source: Lambda Legal (http://www.lambdalegal.org), National Public Radio (State By State: The Legal Battle Over Gay Marriage) Several states restrict marriage to one man and one woman in their constitutions. In seventeen states — Alabama, Arkansas, Georgia, Kansas, Kentucky, Louisiana, Michigan, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia and Wisconsin — the constitutional amendments go beyond defining marriage. In two of the seventeen — South Dakota and Nebraska — the amendments specifically prohibit civil unions and domestic partnerships from being enacted for same-sex couples. The amendments in the other fifteen states contain broad language interpreted as prohibiting any type of spousal rights to same sex couples. Source: Lambda Legal (http://www.lambdalegal.org), National Public Radio (State By State: The Legal Battle Over Gay Marriage) Other states have laws limiting marriage to opposite-sex couples but do not explicitly ban same-sex marriage in their constitutions.
Source: Lambda Legal (http://www.lambdalegal.org), National Public Radio (State By State: The Legal Battle Over Gay Marriage) Defense of Marriage Act, 1 U.S.C. § 7 and 28 U.S.C. § 1738C (2009)
As in the United States of America, countries across the world are widely divided on the subject of legal recognition to same-sex marriage. Some countries issue same-sex marriage licenses that are legally identical to opposite-sex marriage licenses in that jurisdiction.
Source: ILGA (http://www.ilga.org/countries.asp) Same-sex marriage licenses are not issued in the following countries, but those from foreign jurisdictions are recognized.
Source: ILGA (http://www.ilga.org/countries.asp) Some countries offer civil unions or registered partnerships granting nearly all or some of the rights and liabilities of marriage licenses to same-sex couples.
Source: ILGA (www.igla.com) Other countries that do not offer civil unions or registered partnerships, but some of their geo/political subdivisions do.
Source: ILGA (http://www.ilga.org/countries.asp) For more extensive information on international law regarding same-sex marriage, GlobaLex is a good starting point for international legal research. Erica Bell, Formation, Protection, and Recognition of Domestic Partnerships and Non-Traditional Families, 343 PLI/Est 1253 (2007) (estate planning and administration). Erica Bell, Estate Planning for Domestic Partners and Non-Traditional Families, 347 PLI/Est 879 (2008). R.B. Conlin, et al., Consortium Rights of Particular Persons—Persons in Same-Sex “Marriages”, Civil Unions, or Domestic Partnerships, 2 Litigating Tort Cases § 25:15 (2008) John D. Fletcher, Validity of Marriage, 36 Am. Jur. Proof of Facts 2d 441 (2009). Renee Landers, Gay Marriage: Massachusetts Ruling, Wash. Post On-line Discussion, Transcript (November 18, 2003) Marriage, In General, Same-Sex Marriage, 55 C.J.S. Marriage § 7 (2009). R.C. Miller, et. al., Marriage Between Persons of Same Sex – United States and Canadian Cases, 1 A.L.R. Fed. 2d 1 (2009). R.C. Miller, Validity of Legal Claim Predicated on Nonmarital Same-Sex Relationship, 8 A.L.R.6th 339 (2009). Mitchell Waldman, Marriage, Particular Impediments to Lawful Marriage, In General, Status of Parties as of Same Sex, 52 Am. Jur. 2d Marriage § 49 (2009). M.H. Monks, et al., Estate Planning for Nontraditional Families, EPII Massachusetts Continuing Legal Education 13-1 (MCLE, 2007) | Westlaw | Lexis-Nexis | HeinOnline |
Mary Bonauto, Ending Marriage Discrimination: A Work in Progress, 40 Suffolk U. L. Rev. 813 (2007) J.M. Collins, et al., Punishing Family Status, 88 B.U. L. Rev. 1327 (2008) Charles P. Kindregan, Jr., Religion, Polygamy, and Non-Traditional Families: Disparate Views on the Evolution of Marriage in History and in the Debate Over Same-Sex Unions, 41 Suffolk U. L. Rev. 19 (2007) Renée M. Landers, A Marriage of Principles: The Relevance of Federal Precedent and International Sources of Law in Analyzing Claims For a Rights to Same-Sex Marriage, 41 New Eng. L. Rev. 683 (2007) James L. Musselman, What’s Love Got to Do With It?: A Proposal for Elevating the Status of Marriage by Narrowing Its Definition, While Universally Extending the Rights and Benefits Enjoyed by Married Couples, 16 Duke J. Gender L. & Pol'y 37 (2009) | Westlaw | Lexis-Nexis | HeinOnline |
Gordon Albert Babst, Liberal Constitutionalism, Marriage, and Sexual Orientation: A Contemporary Case for Dis-establishment (Peter Lang, 2002) (Teaching Texts in Law and Politics, v. 15) [KF539 .B33 2002] Kevin Bourassa, et. al., Just Married : Gay Marriage and the Expansion of Human Rights (University of Wisconsin Press, 2002) [HQ1034.C2 B68 2002] Donald J. Cantor, et al., Same-Sex Marriage: the Legal and Psychological Evolution in America (Wesleyan University Press, 2006) [HQ1034.U5 S245 2006] George Chauncey, Why Marriage? : the History Shaping Today's Debate Over Gay Equality (Basic Books, 2004) [HQ76.8.U5 C43 2004] William N. Eskridge, Jr., Darren R. Spedale, Gay Marriage: For Better or For Worse? : What We've Learned From the Evidence (Oxford University Press, 2006) [K699 .E85 2006] Family, Unvalued: Discrimination, Denial, and the Fate of Binational Same-Sex Couples Under U.S. Law (Human Rights Watch, 2006) Evan Gerstmann, Same-sex Marriage and the Constitution (Cambridge University Press, 2008) [KF539 .G47 2008] Jonathan Goldberg-Hiller, The Limits to Union: Same-Sex Marriage and the Politics of Civil Rights (University of Michigan Press, 2002) [HQ1034.U5 G65 2002] Kathleen E. Hull, Same-Sex Marriage: The Cultural Politics of Love and Law (Cambridge University Press, 2006) [HQ1033 .H85 2006] Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press, 2006) [KF539 .K67 2006] The Legal Recognition of Same-sex Partnerships: A Study of National, European and International Law (Robert Wintemute & Mads Andenæs, eds., Hart, 2001) [K670 .L44 2001] Michael Mello, Legalizing Gay Marriage (Temple University Press, 2004) [HQ1034.U5 M45 2004] Yuval Merin, Equality for Same-Sex Couples: The Legal Recognition of Gay Partnerships in Europe and the United States (University of Chicago Press, c2002) [K699 .M47 2002] Jason Pierceson, Courts, Liberalism, and Rights: Gay Law and Politics in the United States and Canada (Temple University Press, 2005) [KF4754.5 .P54 2005] Daniel R. Pinello, America's Struggle for Same-Sex Marriage (Cambridge University Press, 2006) [HQ1034.U5 P55 2006] Same-sex Marriage, Pro and Con: A Reader (Andrew Sullivan ed., Vintage Books, 1997) [HQ76.25 .S26 1997] R. Claire Snyder, Gay Marriage and Democracy: Equality For All (Rowman & Littlefield Publishers, 2006) [HQ1034.U5 S58 2006] Mark Strasser, The Challenge of Same-Sex Marriage: Federalist Principles and Constitutional Protections (Praeger, 1999) [KF539 .S768 1999] Mark Strasser, Legally Wed: Same-Sex Marriage and the Constitution (Cornell University Press, 1997) [KF539 .S77 1997] Ann F. Walsh, Introduction by Renée M. Landers, Gay Marriage : A Comprehensive View of the Issues Surrounding Gay Marriage, Civil Unions and Domestic Partnerships by Examining History, Legislation and Viewpoints Within the United States, Europe and Canada (Ann F. Walsh, 2003) [HQ1034.U5 W35 2003] Evan Wolfson, Why Marriage Matters: America, Equality, and Gay People's Right to Marry (Simon & Schuster, 2004) [HQ1034.U5 W65 2004] Andrew Sullivan, Virtually Normal (Vintage Books, 1996)
American Center for Law and Justice, "Protecting Marriage" Amnesty International, LGBT Legal Status Around the World CALI.org – Same-Sex Relationships – on-line interactive lesson of the effects of different same-sex legal relationships "Casebook on Sexual Orientation and the Law," by Prof. Dan Pinello, John Jay College of Criminal Justice: Part III, "Lesbian and Gay Family Issues Not Involving Child Custody, Visitation, Adoption, and Foster Care" - includes edited texts of cases relating to same sex marriage Gay Marriage: Background, News Hour with Jim Lehrer, Transcript (July 31, 2003) International Lesbian and Gay Association - status of LBGT laws across the world Lambda Legal, "Status of Same-Sex Relationships Nationwide" Marriage Watch, a service of the Marriage Law Project, Columbus School of Law, Catholic University of America - includes texts of all state "defense of marriage" or "marriage protection" acts National Conference of State Legislatures, "Same Sex Marriage" State By State: The Legal Battle Over Gay Marriage, National Public Radio Same-Sex Marriage: A Selective Bibliography of the Legal Literature, Rutgers School of Law Newark Law Library
Advocates of Legal Same-Sex Marriage American Civil Liberties Union, "Lesbian & Gay Rights; Index" - contains information of court cases and general legal developments for the LGBT Community Gay and Lesbian Advocates and Defenders, http://www.glad.org/ Human Rights Campaign, http://www.hrc.org/ MassEquality, http://www.massequality.org/ National Center for Lesbian Rights, "Marriage" National Gay & Lesbian Task Force, "Marriage/Partnership Recognition" Partners Task Force for Gay & Lesbian Couples, "Legal Marriage Report: Global Status of Legal Marriage" The Williams Institute, UCLA School of Law - public policy advocacy group that promotes equality in sexual orientation law.
Opponents of Legal Same-Sex Marriage Family Research Council, http://www.frc.org/ Institute for Marriage and Public Policy, http://www.marriagedebate.com/ Focus on the Family, http://www.focusonthefamily.com/ The United States of America. 1970’s and 1980’s Gay rights advocates pursued same-sex civil marriage rights in America as early as 1971. For example, an early case, Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (Minn. 1971), the Minnesota Supreme Court held that the state’s marriage statute does not authorize marriage licenses for people of the same sex and that this did not violate constitutional principles. Despite internal disagreement in the early gay rights movement over the merits of working towards legal recognition of same-sex unions and unsuccessful court rulings in many states, the movement for equal marriage rights gained momentum throughout the 1980’s and early 1990’s. 1993 In Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (Haw. 1993), the Hawai’i Supreme Court held that the Hawaiian marriage statute restricted marital relations to opposite-sex couples and thus established a sex-based classification. The fact that the law made no provision issuing same-sex marriage licenses made it subject to the “strict scrutiny” test in an equal protection challenge. In response to this decision, the state constitution was amended to allow the legislature to preserve that restriction. Hawai'i Constitution, Art. I, § 23. The amendment reads: "The legislature shall have the power to reserve marriage to opposite-sex couples." It is the only amendment of its kind in the United States to give discretion on this issue solely to the legislature. 1996 In reaction to the Hawaii Supreme Court decision and pending litigation in other courts, Congress passed and President Bill Clinton signed into law the Defense of Marriage Act (DOMA). Pub. L. 104-199, 100 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C (2009). DOMA provided that no state would be required to recognize a same-sex marriage license from another state, and also defined marriage for federal law purposes as opposite-sex exclusive. 1998 In Brause v. Bureau of Vital Statistics, Not Reported in P.2d, 1998 WL 88743 (D. Alaska 1998), an Alaskan Superior Court judge ruled that choosing a martial partner is a fundamental right that the opposite-sex requirement of state-issued marriage licenses violated. That same year, the citizens of Alaska voted to amend the Alaska Constitution requiring that all marriages be between a man and a woman. AK Const. Art. 1, § 25. 1999 The Vermont Supreme Court held that the state must extend the same benefits to same-sex couples that opposite-sex married couples receive and directed the Vermont legislature to act on this problem. Baker v. State, 170 Vt. 194, 744 A.2d 864 (Vt. 1999). The Vermont Legislature responded by creating a "civil union" status to fulfill that mandate. Vt. Stat. Ann. tit. 15, §§ 1201 – 1207. 2003 On November 18, 2003, the Supreme Judicial Court of the Commonwealth of Massachusetts famously ruled that reserving the protections, benefits, and obligations of civil marriage solely to opposite-sex couples lacked a rational basis and violated the Commonwealth’s constitutional equal protection principles. Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (Mass. 2003). 2004 The Massachusetts General Court responded with an attempt to create a civil union option as Vermont had. On February 3, 2004 the Supreme Judicial Court decided that the proposed civil union bill (Senate, No. 2175) would establish an "unconstitutional, inferior and discriminatory status for same-sex couples." In re Opinions of the Justices to the Senate, 440 Mass 1201, 802 N.E.2d 565 (Mass. 2004). This advisory opinion reiterated the Court's November decision that backed full marital rights for same-sex couples so to comply with the equal protection and due process clauses of the Massachusetts Constitution. On May 17, 2004, Massachusetts became the first state in the United States to legally issue marriage licenses to same-sex couples. Subsequent efforts to amend the Massachusetts Constitution by the Massachusetts General Court to ban same-sex marriage have failed. At the same time, Californian San Francisco mayor Gavin Newsom began issuing same-sex marriage certificates purely as an exercise of executive power. New Mexican Sandoval County clerk Victoria Dunlap, and New Paltz, New York Mayor Jason West did so as well. These certificates were all later nullified as they conflicted with state law at that time. In response to the Massachusetts court ruling and the controversial issuance of licenses in California and New Mexico, many states saw their constitutions amended to limit the issuance of civil marriage licenses to solely opposite-sex couples – eleven did so by voter initiative in the 2004 November election. 2005 President George W. Bush and Congressional Republicans advocated the passage of a Federal Marriage Amendment. This amendment would usurp this issue from the states and set a national definition for marriage as exclusively between one man and one woman. Proposed constitutional amendments were proposed in the U.S. House of Representatives and U.S. Senate. The Federal Marriage Amendment has been introduced in the United States Congress four times: in 2003, 2004, 2005/2006 and 2008. Connecticut enacted a civil union law providing same-sex couples with some of the same rights and responsibilities as marriage. Connecticut became the first state to do so without judicial intervention. 2006 In July 2006, opposite-sex exclusive definitions of marriage were upheld by the highest courts of both New York, Hernandez v. Robles, 7 N.Y.3d 338, 855 N.E.2d 1 (N.Y. 2006), and Washington. Andersen v. King County, 158 Wash.2d 138, 138 P.3d 963 (Wash. 2006). The New Jersey Supreme Court held that same-sex couples were entitled to the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. Lewis v. Harris, 188 N.J. 415, 908 A.2d 196 (N.J. 2006). The New Jersey Legislature complied with that decision by enacting a civil union act. N.J. Stat. Ann. 103. 2008 On May 15, 2008, California became the second state to legalize same-sex marriage. In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384 (Cal. 2008), held that past state legislative and initiative measures limiting marriage to opposite-sex couples violated the state constitutional rights of same-sex couples and could not be used to preclude same-sex couples from marrying. Between June and November of 2008, eighteen hundred same-sex couples were issued marriage licenses in California. Notably, the California Supreme Court also ruled that gays and lesbians are subject to strict judicial scrutiny, making California the first state in the United States to set such a strict standard of review for sexual orientation as a class. The passage on November 4, 2008 of Proposition 8, codified as Article I § 7.5, amended the California Constitution to define civil marriage as only between one man and one woman. Since this amendment’s passage, no same-sex marriage licenses have been issued by the state of California. The validity of same-sex marriage licenses already issued remain in doubt. The amendment, however, does not disturb that part of the California Supreme Court’s holding that gay men and lesbians constitute a Suspect Class for purposes of equal protection under Art. I § 7. Proposition 8’s amendment of the California Constitution is currently being reviewed by the California Supreme Court to determine whether it is an amendment (and thus valid) or a revision to the California Constitution (requiring a larger share of votes than Proposition 8 received in the 2008 election). The Connecticut Supreme court ruled that sexual orientation is a quasi-suspect classification (similar to gender), such that laws discriminating against gay persons are subject to intermediate scrutiny and laws restricting civil marriage to heterosexual couples violates same-sex couples’ state constitutional equal protection rights. Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 957 A.2d 407 (Conn. 2008). Connecticut became the third state in the U.S. to issue state-sanctioned marriage licenses to same-sex couples on November 12, 2008. 2009 The state of same-sex marriage remains in flux in the United States as legal advocacy groups on both sides of the debate pursue policy changes through court proceedings, lobbying legislatures, and ballot initiatives in many jurisdictions. The Gay & Lesbian Advocates and Defenders, for example, have announced a plan to achieve marriage equality in all six New England states by 2012. | Westlaw | Lexis-Nexis | HeinOnline |
[ back to top ] Resource created and edited by Reference Librarian Diane D'Angelo. Revised and expanded by Research Assistant Adam Sulewski, April 2009. If you have any questions, comments or suggestions, email: Last updated: June 2009. |
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