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]
Contents |
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
Further information: Same-sex marriage law in the United States by state
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. .
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
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
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
Main article: Public opinion of same-sex marriage in the United States
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]
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