Same-sex marriage is not recognized in most U.S. jurisdictions. The
Defense of Marriage Act (DOMA), enacted in 1996, prevents the federal government from recognizing
same-sex marriages and allows each
U.S. state
to refuse recognition of same-sex marriages performed in other states.
However, since 2004, six states have legalized same-sex marriage:
Connecticut,
Iowa,
Massachusetts,
New Hampshire,
New York, and
Vermont, as well as the
District of Columbia, and two
Native American tribal jurisdictions.
[1]
Two states
[2] recognize same-sex marriages performed only in other jurisdictions.
[3][4] California, which briefly granted same-sex marriage in 2008, now only recognizes them on a conditional basis.
[5] Laws that would legalize same-sex marriage in
Washington and
Maryland were passed in 2012,
[6][7] but each will be subject to a referendum during the
November 2012 elections,
[8] while
Maine will also vote on an
initiative to establish same-sex marriage.
Same-sex marriage has been legalized through court rulings and legislative action, but not via
popular vote.
[9][10] Nine states prohibit same-sex marriage in
statute and thirty prohibit it in their constitution.
[11] The movement to obtain
marriage rights and benefits for same-sex couples in the United States began in the 1970s,
[12] but became more prominent in
U.S. politics in 1993 when the
Hawaii Supreme Court declared the state's prohibition to be unconstitutional in
Baehr v. Lewin.
[13]
During the 21st century, public support for legalizing same-sex marriage has grown considerably,
[14] and various national polls now show that a majority of Americans support same-sex marriage.
[15] On May 9, 2012,
Barack Obama became the first sitting
U.S. president to publicly declare support for the legalization of same-sex marriage.
[16][17]
Legal issues
Federal law
The legal issues surrounding
same-sex marriage in the United States are complicated by the nation's
federal system of government. 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 other states (as was the case with
interracial marriage before 1967 due to
anti-miscegenation laws). With the passage of the
Defense of Marriage Act (DOMA) in 1996, a marriage was explicitly defined in federal law as a union of one man and one woman.
[18]
DOMA is currently under challenge in the
federal court system. 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 under the DOMA is unconstitutional,
under the
Tenth Amendment to the
US Constitution.
[19][20] Since 2010, several other federal courts have found DOMA to be unconstitutional,
[21][22] and five of those cases are awaiting a response for review by the
U.S. Supreme Court.
[23][24]
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.
[25]
However, many aspects of marriage law are determined by the states,
not the federal government. The Defense of Marriage Act does not prevent
individual states from defining marriage as they see fit.
The United States Supreme Court in 1972 dismissed
Baker v. Nelson, a case originating in Minnesota, "for want of a substantial federal question."
[26] In so doing, the court upheld Minnesota's right to restrict marriage to different-sex couples.
[27]
Marriage laws in states that do not permit or recognize same-sex marriage are being challenged in court. Cases include
Perry v. Brown, which challenges the validity of
California's Proposition 8 under the
United States Constitution[28] Sevcik v. Sandoval,
which challenges Nevada's system of marriage for different-sex couples
and domestic partnerships for same-sex couples under the
equal protection clause.
[29] and others.
State law
Laws regarding same-sex partnerships in the United States
Same-sex marriage1
Unions granting rights similar to marriage1,2
Legislation granting limited/enumerated rights1
Same-sex marriages performed elsewhere recognized1
No specific prohibition or recognition of same-sex marriages or unions
State statute bans same-sex marriage
State constitution bans same-sex marriage2
State constitution bans same-sex marriage and some or all other kinds of same-sex unions
1May include recent laws or court decisions which have
created legal recognition of same-sex relationships, but which have not
entered into effect yet.
2See the article on same-sex marriage in California for the status in California. .
Same-sex marriage is recognized only at the state level, as the federal
Defense of Marriage Act explicitly bars federal recognition of such marriages.
Six state governments (along with the
District of Columbia, the
Coquille Indian Tribe, and the
Suquamish tribe) have legalized same-sex marriage and currently offer same-sex marriages:
New York,
Massachusetts,
Connecticut,
Iowa,
Vermont, and
New Hampshire. In all six states, same-sex marriage has been legalized through legislation or court ruling.
[30] Same-sex marriage has been legal in
Massachusetts since May 17, 2004; in
Connecticut since November 12, 2008;
[31] in
Iowa since April 27, 2009;
[32][33] in
Vermont since September 1, 2009;
New Hampshire since January 1, 2010; and
New York since July 24, 2011.
[34] In 2009,
New England became the center of an organized push to legalize
same-sex marriage,
[35] with four of the six states in that region granting same-sex couples the legal right to marry.
Out of 28 states where constitutional amendments or initiatives that
define marriage as the union of a man and a woman were put on the ballot
in a
referendum, voters in all 28 states voted to approve such amendments.
[36] Arizonans voted down
one such amendment in 2006,
[37] but approved
a different amendment to that effect in 2008.
[38] In 1998, Hawaiian voters approved language
allowing their legislature to ban same-sex marriage.
[39] In 2009,
Maine voters prevented legislation permitting same-sex marriage from going into effect.
[30][40]
As of January 2010, 29 states had constitutional provisions restricting marriage to one man and one woman, while 12 others had laws that did so.
[41] Nineteen states ban any legal recognition of same-sex unions that would be equivalent to civil marriage.
[42]
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 United States Senate, but was ultimately defeated in both Houses of Congress.
[43]
In 2003, the US Supreme Court struck down Texas' "Homosexual Conduct" law
[44] in
Lawrence v. Texas.
[45] The ruling effectively nullified similar same-sex sodomy laws in Kansas, Oklahoma and Missouri along with broader
sodomy laws in nine other states.
[46]
The right to marry was first extended to same-sex couples by a United
States jurisdiction on November 18, 2003, in a state Supreme Judicial
Court ruling in Massachusetts.
[47]
On May 15, 2008, the
Supreme Court of California issued a decision in which it effectively legalized same-sex marriage in
California, holding that California's existing opposite-sex definition of marriage violated the constitutional rights of same-sex couples.
[48][49] Same-sex marriage opponents in California placed a state constitutional amendment known as
Proposition 8 on the November 2008 ballot for the purpose of restoring an opposite-sex definition of marriage.
[50] Proposition 8 was passed on Election Day 2008, as were proposed marriage-limiting amendments in Florida and Arizona.
[51] On August 4, 2010, a decision by the U.S. District Court in
Perry v. Schwarzenegger ruled Proposition 8 unconstitutional.
[52]
The decision in that case is currently being appealed and the case is
ultimately expected to be decided by the U.S. Supreme Court.
[53] On October 10, 2008, the
Connecticut Supreme Court
overturned the state's civil unions statute as unconstitutionally
discriminatory against same-sex couples, and required the state to
recognize same-sex marriages.
[54]
Same-sex marriage was legalized in
Iowa following the unanimous ruling of the
Iowa Supreme Court in
Varnum v. Brien on April 3, 2009.
[55]
This decision was initially scheduled to take effect on April 24, but
the date was changed to April 27 for administrative reasons.
[33] On April 7, 2009,
Vermont
legalized same-sex marriage through legislation. The Governor of
Vermont had previously vetoed the measure, but the veto was overridden
by the Legislature. Vermont became the first state in the United States
to legalize same-sex marriage through legislative means rather than
litigation. On May 6, 2009, Maine Governor
John Baldacci signed a law legalizing same-sex marriage, becoming the first state governor to do so.
[56] However, the legislation was stayed pending a vote and never went into effect. It was repealed by referendum in November 2009.
[30] On June 3, 2009, New Hampshire became the sixth state to legalize same-sex marriage.
[57]
On December 18, 2009, a same-sex marriage bill was signed into law by the Mayor of the District of Columbia;
[58] same-sex marriage licenses became available in Washington, D.C. on March 3, 2010.
[59]
California,
Colorado,
Delaware,
Hawaii,
Maine,
Maryland,
Nevada,
Oregon,
Rhode Island,
Wisconsin,
Illinois, and
Washington
have created legal unions for same-sex couples that offer varying
subsets of the rights and responsibilities of marriage under the laws of
those jurisdictions.
New Jersey
grants civil unions that provide "all of the same benefits, protections
and responsibilities under the law, whether they derive from statute,
administrative or court rule, public policy, common law or any other
source of civil law, as are granted to spouses in a marriage."
[60]
Maryland recognizes same-sex marriages formed in other jurisdictions,
but does not allow forming such marriages within their own borders.
[3][4][61]
New York had been in a similar situation as its courts had held that
same-sex marriages conducted in states where they are legal must be
recognized by those states, but that the state statutes did not allow
the issuance of same-sex marriage licenses,
[62] a situation which changed when its legislature legalized granting licenses to same-sex couples in 2011. On February 13, 2012,
Washington
Governor Chris Gregoire signed legislation into law that would
institute same-sex marriage in the state, but the enactment was stayed
pending a November 2012 voter referendum.
[63]
On May 8, 2012,
North Carolina voters approved, 61–39%, a
constitutional amendment
banning same-sex marriage as well as all other types of same-sex
unions. North Carolina already prohibited same-sex marriages by statute,
and became the final state in the
South to do so by constitutional amendment.
[64]
Debate
President Obama
On May 9, 2012, President
Barack Obama announced in an interview with
ABC News that after wrestling with the subject for many years, he had come to believe
same-sex couples should be allowed to marry.
[65]
In the same interview, he stated his belief that individual states
should have the final say as to whether same-sex marriage is recognized.
[66]
The announcement made Obama the first United States president to
publicly declare his support of same-sex marriage while in office, and
marked a departure from his previous stance on the issue,
[17][67]
although Obama had previously made comments in support of same-sex
marriage as early as the 1990s during his campaign for the Illinois
Senate.
[68]
In a 1996 newspaper interview, Obama stated "I favor legalizing
same-sex marriages, and would fight efforts to prohibit such marriages."
[69]
However, during the 2008 presidential campaign, Obama stated, "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,"
[70] although he remained supportive of the rights of individuals who identified as gay or lesbian.
[71]
In January 2009, it was reported that Obama opposed a federal mandate for same-sex marriage, and also opposed the
Defense of Marriage Act,
[72] stating that individual states should decide the issue.
[73][74] Obama opposed
Proposition 8 — California's constitutional ban on same-sex marriage — in 2008.
[75]
In December 2010, the White House website stated that the president
supported full civil unions and federal rights for LGBT couples and
opposed a constitutional ban on same-sex marriage."
[71]
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", before subsequently declaring his
full support for the legalization of same-sex marriage in May 2012.
[76]
Other politicians and media figures
Many high-profile politicians and commentators have expressed their views on same-sex marriage.
Glenn Beck and
Rush Limbaugh are two of the most prominent conservative commentators based on recent listenership ratings.
[77] In an
O'Reilly Factor
interview in August 2010, when 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?'"
[78]
On his radio show in August 2010, Rush Limbaugh made the following comments on the decision by
U.S. District Court Judge
Vaughn Walker regarding
Proposition 8
in California: "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."
[79]
Commenting on the same court decision, former
Speaker of the House of Representatives Newt Gingrich
issued a statement in opposition to same-sex marriage, which read, in
part, as follows: "Judge Walker's ruling overturning Prop 8 is 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... Congress now has the responsibility to act immediately to
reaffirm marriage as a union of one man and one woman as our national
policy."
[80]
Then-Speaker of the House
Nancy Pelosi
expressed her support for Judge Walker's decision: "I am extremely
encouraged by the ruling today, which found that Proposition 8 violated
both the due process and equal protection clauses of the U.S.
Constitution. Proposition 8 has taken away individual rights and
freedoms, and is a stain upon the California Constitution. We must
continue to fight against discriminatory marriage amendments and work
toward the day when all American families are treated equally."
[81] In 2009, Pelosi described the difficulty in repealing the
Defense of Marriage Act:
"I would like to get rid of all of it. But the fact is we have to make
decisions on what we can pass at a given time. It doesn't mean the other
issues are not important. It is a matter of getting the votes and the
legislative floor time to do it."
[82]
Congressman
Barney Frank
voiced his concern in September 2009 with regard to the ability to
obtain sufficient votes to overturn the Defense of Marriage Act: "If we
had a chance to pass that, it would be a different story, but I don't
think it's a good idea to rekindle that debate when there's no chance of
passage in the near term."
[83]
During the 2008 presidential election campaign, then-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."
[84]
MSNBC commentator
Rachel Maddow
expressed her frustration with the Obama Administration position on
same-sex marriage in August 2010. In response to Senior White House
Advisor
David Axelrod's
statement on President Obama's position: "The president does oppose
same-sex marriage but he supports equality for gay and lesbian couples
in benefits and other issues", Maddow said, "Got that? So the line from
the administration is that Barack Obama does not want gay people to be
allowed to be married, but when gay people can be married and other
people are trying to take away that right like in California, he doesn't
want the right to be taken away. But, he's not in favor of that right
in the first place. You got it? The president is against gay marriage
but he is also against constitutional amendments to ban gay marriage,
which means that he'd apparently prefer that gay marriage be banned
through flimsier tactical means? That's the president's position. Clear
as mud. Ripe for criticism much?"
[85]
Advocacy and opposition groups
Advocacy groups have entered the same-sex marriage debate in recent years, including the
National Organization for Marriage (NOM) and the
Family Research Council (FRC), which has been designated a hate group by the
Southern Poverty Law Center.
[86]
NOM lists strategies on its website for supporters to use, including
the following statement: "Strong majorities of Americans oppose gay
marriage. Supporters of SSM therefore seek to change the subject to just
about anything: discrimination, benefits, homosexuality, gay rights,
federalism, our sacred constitution. Our goal is simple: Shift the
conversation rapidly back to marriage. Don't get sidetracked. Marriage
is the issue. Marriage is what we care about. Marriage really matters.
It's just common sense."
[87]
According to its website, the FRC opposes "the vigorous efforts of
homosexual activists to demand that homosexuality be accepted as
equivalent to heterosexuality in law, in the media, and in schools.
Attempts to join two men or two women in 'marriage' constitute a radical
redefinition and falsification of the institution, and FRC supports
state and federal constitutional amendments to prevent such redefinition
by courts or legislatures."
[88]
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."
[89]
Support
Rally for same-sex marriage (May 2009, San Francisco, California)
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.
[90] Fernando Espuelas argues that same-sex marriage should be allowed because same-sex marriage extends a civil right to a minority group.
[91]
According to an American history scholar Nancy Cott "there really is no
comparison, because there is nothing that is like marriage except
marriage."
[92]
The leading associations of psychological, psychiatric, medical, and
social work professionals in the United States have said that claims
that the legal recognition of marriage for same–sex couples undermines
the institution of marriage and harms children is inconsistent with the
scientific evidence which supports 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; and that the
children of same-sex parents are no less psychologically healthy and
well-adjusted than children of opposite-sex parents. 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.
[93]
Former presidents
Bill Clinton[94] and
Jimmy Carter,
[95] former vice presidents
Dick Cheney[96] and
Al Gore,
[97] and current vice president
Joe Biden have also voiced their support for legal recognition.
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, and other intellectual ideas expressed in natural
law theory.
[98]
The Southern Baptist Convention says that extending marriage rights to
same-sex couples would undercut the conventional purpose of marriage.
[99] 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
argue 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.
[100][101][102][103] 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.
[104] Other arguments against same-sex marriage are based upon concerns that the process of redefining the institution would be a
Pandora's box. 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.
[105]
The most successful tactic to prevent legalization has been state constitutional amendments against same-sex marriages.
[9] The funding of the amendment referendum campaigns has been an issue of great dispute. Both judges
[106][107] and the IRS
[108]
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 $250,000 in Washington legislative races to defeat the
Republican state senators who voted for same-sex marriage.
[109]
Public opinion
Public support for same-sex marriage has grown at an increasing pace since the 1990s.
[14] In 1996, just 25% of Americans supported legalization. Polls have shown that support is identical among whites and non-whites.
[110]
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.
[111] On May 20, 2011, Gallup reported majority support for gay marriage for the first time in the country.
[112]
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."
[113]
Effects of same-sex marriage
Economic impact on same-sex couples
Dr. M. V. Lee Badgett, an economist and associate professor at the
University of Massachusetts Amherst, has studied the impact of same-sex legal marriage on same-sex couples. According to a 1997
General Accounting Office study requested by Rep.
Henry Hyde (R), at least 1,049 U.S. federal laws and regulations include reference to marital status.
[114] A later 2004 study by the
Congressional Budget Office
finds 1,138 statutory provisions "in which marital status is a factor
in determining or receiving 'benefits, rights, and privileges.'"
[115]
Many of these laws govern property rights, benefits, and taxation.
Same-sex couples, whose marriages are not recognized by the state, are
ineligible for spousal and survivor
Social Security benefits.
[115]
Badgett's research finds the resulting difference in Social Security
income for same-sex couples compared to opposite-sex married couples is
US$5,588 per year. The federal ban on same-sex marriage and benefits
through the 1996
Defense of Marriage Act (DOMA) extends to federal government employee benefits.
[115]
According to Badgett's work, same-sex couples face the following other
financial challenges against which legal marriage at least partially
shields opposite-sex couples:
[116]
- Legal costs associated with obtaining domestic partner documents to
gain legal abilities granted automatically by legal marriage, including
power of attorney, health care decision-making, and inheritance[116]
- A legal spouse can inherit an unlimited amount from the deceased
without incurring an estate tax but a same-sex partner would have to pay
the estate tax on the inheritance from her/his partner[115]
- Same-sex couples are not eligible to file jointly as a married
couple and thus cannot take the advantages of lower tax rates when the
individual income of the partners differs significantly[115]
- Only 18% of companies offer domestic partner health care benefits[116]
- Taxation of same-sex spouse health insurance benefits when provided
by an employer, unlike like benefits provided to a heterosexual couple[115]
- Higher health costs associated with lack of insurance and
preventative care: 20% of same-sex couples have a member who is
uninsured compared to 10% of married opposite-sex couples[116]
- Inability to protect jointly-owned home from loss due to costs of potential medical catastrophe[116]
- Inability for a U.S. citizen to extend citizenship to same-sex partner[116]
While state laws grant full marriage rights (
Connecticut,
Iowa,
Massachusetts,
New Hampshire,
New York and
Vermont) or some or all of the benefits under another name (
New Jersey,
Washington,
California,
Delaware,
Illinois,
etc.), these state laws do not extend the benefits of marriage on the
Federal level, and most states do not currently recognize same-sex
marriages, domestic partnerships, or civil unions from other states.
Potential economic disadvantages
While the legal benefits of marriage are numerous, same-sex couples
could face the same financial constraints of legal marriage as
opposite-sex married couples. Such potential effects include the
marriage penalty in taxation (if the federal government were to recognize same-sex marriage).
[115]
Similarly, 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.
[115]
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.
[115]
Mental health
Based in part on empirical research that has been conducted on the
adverse effects of stigmatization, 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.
[93]
Several psychological studies
[117][118][119]
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.
[120]
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, afraid that they would lose custody of their children and
that they might become victims of violence. 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.
[121]
Dr.
Ilan H. Meyer, Williams Senior Scholar of Public Policy at the
UCLA School of Law and expert on
minority stress,
has found through several empirical studies that gays and lesbians
encounter a disproportionate level of stress and mental health
difficulties because of discrimination and oppressive laws, and that
these stresses amplify the social stigma that makes them more
susceptible to depression, suicide and substance abuse.
[122] At the
Perry v. Schwarzenegger
trial, he 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.
[122][123]
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.
[124][125]
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.
[126]
Case law
United States case law regarding same-sex marriage:
- Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) (upholding a Minnesota law defining marriage)
- Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973) (upholding a Kentucky law defining marriage)
- Singer v. Hara, 522 P.2d 1187 (Wash. App. 1974) (ban on same-sex marriage was constitutional on the basis of gender discrimination;
because the historical definition of marriage is between one man and
one woman, same-sex couples are inherently ineligible to marry)
- Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (affirming that same-sex marriage does not make one a "spouse" under the Immigration and Nationality Act)
- De Santo v. Barnsley, 476 A.2d 952 (Pa. Super. Ct. 1984)
(same-sex couples cannot undergo divorce proceedings because they cannot
enter a common law marriage)
- In re Estate of Cooper, 564 N.Y.S.2d 684 (N.Y. Fam. Ct. 1990)
(the state has a compelling interest in fostering the traditional
institution of marriage and prohibiting same-sex marriage)
- Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (holding that statute
limiting marriage to opposite-sex couples violates the Hawaii
constitution's equal-protection clause unless the state can show that
the statute is (1) justified by compelling state interests and (2)
narrowly tailored, prompting a state constitutional amendment and the federal Defense of Marriage Act)
- Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995)
- Storrs v. Holcomb, 645 N.Y.S.2d 286 (N.Y. App. Div. 1996) (New York does not recognize or authorize same-sex marriage); overturned in part by Martinez v. County of Monroe
(2008) (out-of-state same-sex marriages must be recognized equal to
out-of-state opposite-sex marriages because they do not violate public
policy)
- In re Estate of Hall, 707 N.E.2d 201, 206 (Ill. App. Ct.
1998) (no same-sex marriage will be recognized; petitioner claiming
existing same-sex marriage was not in a marriage recognized by law)
- Baker v. State, 170 Vt. 194; 744 A.2d 864 (Vt. 1999) (Common
Benefits Clause of the state constitution requires that same-sex couples
be granted the same legal rights as married persons)
- Rosengarten v. Downes, 806 A.2d 1066 (Conn. Ct. App. 2002) (Vermont civil union cannot be dissolved in Connecticut)
- Burns v. Burns, 560 S.E.2d 47 (Ga. Ct. App. 2002) (recognizing marriage as between one man and one woman)
- Frandsen v. County of Brevard, 828 So. 2d 386 (Fla. 2002)
(State constitution will not be construed to recognize same-sex
marriage; sex classifications not subject to strict scrutiny under
Florida constitution)
- In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002) (a post-op
male-to-female transgendered person may not marry a male, because this
person is still a male in the eyes of the law, and marriage in Kansas is
recognized only between a man and a woman)
- Standhardt v. Superior Court ex rel. County of Maricopa, 77 P.3d 451 (Ariz. Ct. App. 2003) (no state constitution right to same-sex marriage)
- Morrison v. Sadler, 2003 WL 23119998 (Ind. Super. Ct. 2003) (Indiana's Defense of Marriage Act is found valid)
- Goodridge v. Dept. of Public Health,
798 N.E.2d 941 (Mass. 2003) (denial of marriage licenses to same-sex
couples violated provisions of the state constitution guaranteeing
individual liberty and equality, and was not rationally related to a
legitimate state interest)
- Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) (reversing 368 F. Supp. 2d 980 (D. Neb. 2005)) (Nebraska's Initiative Measure 416
does not violate Fourteenth Amendment's Equal Protection Clause, was
not a bill of attainder, and does not violate the First Amendment; "laws
limiting the state-recognized institution of marriage to heterosexual
couples ... do not violate the Constitution of the United States")[127]
- Lewis v. Harris,
908 A.2d 196 (N.J. 2006) (New Jersey is required to extend all rights
and responsibilities of marriage to same-sex couples, but prohibiting
same-sex marriage does not violate the state constitution; legislature
given 180 days from October 25, 2006 to amend the marriage laws or
create a "parallel structure")
- Andersen v. King County, 138 P.3d 963 (Wash. 2006) (Washington's Defense of Marriage Act does not violate the state constitution)
- Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) (New York State Constitution does not require that marriage be extended to same-sex couples)
- Langan v. St. Vincent's Hospital,
25 A.D.3d 90, 802 N.Y.S.2d 476 (N.Y. App. Div. 2005), review denied,
850 N.E.2d 672 (N.Y. 2006) (denying survivor partner in Vermont
officiated Civil Union standing as a "spouse" for purposes of New York's
wrongful death statute)
- Conaway v. Deane, 932 A.2d 571 (Md. 2007) (upholding state law defining marriage as between a man and a woman)
- Martinez v. County of Monroe,
850 N.Y.S.2d 740 (N.Y. App. Div. 2008). (The court ruled unanimously
that because New York legally recognizes out-of-state marriages of
opposite-sex couples, it must do the same for same-sex couples. The
county was refused leave to appeal on a technicality.[128])
- In re Marriage Cases,
183 P.3d 384 (Cal. 2008). (The court ruled that limiting marriage to
opposite-sex couples is invalid under the equal protection clause of the
California Constitution, and that full marriage rights, not merely
domestic partnership, must be offered to same-sex couples.);[129]
- Strauss v. Horton, 207 P.3d 48 (Cal. 2009). (holding that Proposition 8 was validly adopted, but that marriages contracted before its adoption remain valid)[130]
- Varnum v. Brien,
763 N.W.2d 862, (Ia. 2009). (Barring same-sex couples from marriage,
the court unanimously ruled, violates the equal protection provisions of
the Iowa Constitution. Equal protection requires full marriage, rather than civil unions or some other substitute, for same-sex couples)
- Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010). (California's Proposition 8 (2008) violates fundamental right to marry under Loving v. Virginia,
violates Due Process and Equal Protection Causes of the Fourteenth
Amendment, and illegally discriminates on the basis of sexual
orientation. Proposition 8 is driven only by animus against same-sex
couples; therefore, does not survive rational basis review. Permanently enjoins CA from enforcing Prop 8; order was stayed pending appeal to the U.S. Ninth Circuit Court of Appeals, where it was affirmed, now stayed pending possible appeal to the Supreme Court)
- Perry v. Brown, Slip Op. (9th Cir. 2012), Perry v. Schwarzenegger affirmed on the grounds that under Romer v. Evans,
Proposition 8's withdrawal of the designation of "marriage" from
same-sex couples violates the Equal Protection Clause as there is no
legitimate government interest to sustain a rational basis review;
therefore, it is driven only by animus against gays and lesbians. Order
stayed 90 days pending possible appeal to the Supreme Court.
- Gill v. Office of Personnel Management 699 F.Supp.2d 374 and Massachusetts v. United States Department of Health and Human Services 698 F.Supp.2d 234 (D.Mass. 2010) challenged Section 3 of DOMA on equal protection, due process, Tenth Amendment, and Spending Clause grounds. Upheld at the First Circuit Court of Appeals. Implementation stayed pending filed appeal to the Supreme Court.
- Golinski v. Office of Personnel Management, Slip Op. (N.D. Cal. 2012), Section 3 of the Defense of Marriage Act
(DOMA), which defines marriage for the purposes of federal statutes,
regulations, etc. as being between one man and one woman, was held to
violate the Equal Protection Clause. The court ruled that homosexuality
is a quasi-suspect classification, meaning DOMA must substantially relate to an important government interest ("intermediate scrutiny"). The court found it could not meet that burden, and also failed rational basis review.
- Port v. Cowan, 426 Md. 435, 44 A.3d 970 (2012). (unanimous ruling; valid foreign same-sex marriages recognized in Maryland under doctrine of comity)[131]
- Windsor v. United States
(S.D.N.Y. 2012), successfully challenged Section 3 of DOMA on equal
protection grounds in the case of a widow who had her deceased wife's
estate taxed more than $350,000 by the government, due to the lack of
federal recognition. Windsor was awarded approximately $350,000 plus
interest and court costs. Instead of waiting for an appeal in the Second Circuit Court of Appeals, Windsor's attorneys have petitioned the U.S. Supreme Court to review her case.[132][133]
- In Jackson v. Abercrombie, federal District Court judge Alan Kay on August 8, 2012, citing Baker v. Nelson
as controlling, rejected the claim by two lesbians that Hawaii's
failure to provide for same-sex marriage violated the U.S.
Constitution's guarantees of due process and equal protection under the Fourteenth Amendment.[134][135][136] It is the first court decision to cite the discredited "New Family Structure" research of Mark Regnerus.[137][138]
See also
Legislation
Supporting organizations
Opposing organizations
References
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- ^ a b The situation in Rhode Island is uncertain, despite an opinion by the state's Attorney General:
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Bibliography
External links
