Overview - Same-Sex Marriage
Same-sex marriage permits couples of the same gender to enter legally-recognized marriages and provides them with the same legal rights as couples in heterosexual marriages. Same-sex marriage is legal in the countries of Argentina, Belgium, Canada, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain, and Sweden. In the United States as of 2012, same-sex marriage is legal in Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington, and the District of Columbia. Several other states recognize civil unions and domestic partnerships as well as out-of-state marriages.
Opponents of same-sex marriage argue that the institution of marriage should apply only to unions between one man and one woman. Allowing gay and lesbian couples to marry, they say, undermines the institution of marriage itself. Some who object to same-sex marriage support the idea of civil unions, rather than full marriage, for same-sex couples. But advocates say that such unions are not fully equivalent to marriage and deprive same-sex couples of equal rights.
In the United States, marriage laws are enacted by the individual states, not by the federal government. Yet the federal government has intervened where it has determined that constitutional rights have been violated. The argument that same-sex couples should have the right to marry can be traced to the civil rights movement, which supported efforts to repeal state miscegenation laws that forbade interracial marriages. In 1942 the U.S. Supreme Court ruled in Skinner v. Oklahoma that marriage is “one of the basic civil rights.” Loving v. Virginia, decided by the Supreme Court in 1967, ended race discrimination in marriage and also affirmed: “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” These decisions paved the way for same-sex couples to demand equal marriage rights. Beginning in the early 1970s, individual gay and lesbian couples applied for marriage licenses in various states, but these efforts did not succeed. Though some couples sued, the lawsuits were also rejected.
The tide began to turn in 1993, when three same-sex couples in Hawaii sued the state for marriage licenses. The Hawaii Supreme Court ruled that the state was required to demonstrate sufficient reason for denying the licenses, or stop discriminating. In a 1996 trial decision, Judge Kevin Chang ruled that no good reason existed to deny marriage licenses to same-sex couples. Despite this clear ruling to end discrimination in marriage, Hawaii amended its constitution to block same-sex marriages.
These developments fueled growing activism for same-sex marriage rights. In 1999 the Vermont Supreme Court ruled that same-sex couples were entitled to the same rights as couples in heterosexual marriages, but the state legislature enacted civil unions, rather than full marriage, for same-sex couples. In 2001, the same year that the Netherlands became the first country to give same-sex couples full marriage rights, seven same-sex couples in Massachusetts who had been denied marriage licenses sued the state. Their case was bolstered by a U.S. Supreme Court decision in 2003, Lawrence v. Texas, which struck down sodomy laws and stated that the “moral disapproval” of voters or government is not a valid basis for discrimination in marriage. In 2003 the Massachusetts Supreme Judicial Court ruled that the state constitution mandates equality in marriage for same-sex and heterosexual couples. Three months later, the court specified that civil unions did not meet this requirement, and on May 17, 2004, Massachusetts became the first state to grant marriage licenses to same-sex couples.
Ups and Downs
Events in California illustrate the deep divisions between supporters and opponents of gay marriage, and between government and voters. In 2004 San Francisco Mayor Gavin Newsom ordered the city to issue marriage licenses to same-sex couples. More than 2,000 were granted, and these couples married. But the California Supreme Court later deemed these licenses invalid. In 2005 the California legislature became the first in the United States to pass a bill legalizing same-sex marriage, but Governor Arnold Schwarzenegger vetoed the bill. The case went to the California Supreme Court, which ruled in 2008 that “limiting the designation of marriage to a union ‘between a man and a woman’ is unconstitutional and must be stricken from the statute,” and that marriage must be made equally available to both same-sex and opposite-sex couples. At the same time, however, a ballot initiative, Proposition 8, was launched to deny same-sex marriage rights. On June 16, 2008, California began allowing same-sex couples to receive marriage licenses. But on November 4 of that year, Proposition 8 passed, again banning same-sex marriage. Since then a handful of cases have challenged the constitutionality of Proposition 8. In 2012 a federal appeals court declared Proposition 8 unconstitutional, turning over several cases regarding the validity of Proposition 8 to the U.S. Supreme Court. If the Court agrees to hear the cases, it will have to decide whether Proposition 8 violates the Fourteenth Amendment of the U.S. Constitution.
A similar pattern was seen in Maine, where Governor John Baldacci in 2009 signed a freedom to marry bill, which had strong support from both branches of the state legislature. Opponents, however, with strong support from national organizations, launched a referendum campaign to ban same-sex marriage. It was put on the ballot that November and passed by a narrow margin. As in California, voters overturned legislative action. Voters reversed the legislature in 2012, again allowing same-sex marriages in Maine. While same-sex marriages are not legal in the states of New Mexico and Rhode Island, these states recognize out-of-state marriages of same-sex couples.
Defense of Marriage Act
In 1996 President Bill Clinton signed into law the Defense of Marriage Act (DOMA). This law specifies that no state is required to recognize a same-sex marriage performed in another state. It also states that the federal government defines marriage as “only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or wife.” However, DOMA does not require individual states to adopt this definition, nor does it ban states from allowing same-sex marriages.
In October of 2012, the 2nd U.S. Circuit Court of Appeals found DOMA unconstitutional after supporting a lower court ruling on a 2010 case. The case involved a woman who was required to pay federal estate tax after the death of her wife. It was turned over to the Supreme Court, and the Court will decide if DOMA is constitutional along with California’s Proposition 8 cases.
Federal Marriage Amendment
Since 2002 opponents of same-sex marriage have worked to pass a Federal Marriage Amendment (FMA) to the U.S. Constitution. This amendment would define marriage as a union between one man and one woman. It has been introduced to the U.S. Congress in 2003, 2004, 2005, and 2008 but has failed to gain enough support to pass. Those in favor of FMA argue that the federal government must intervene to stop same-sex marriage because, where it is allowed, it has been the result of advocate judges imposing their views against the will of voters. This, say proponents of FMA, amounts to an abuse of judicial power. Proponents also argue that same-sex marriage threatens the federally recognized special status of opposite-sex marriages and that a constitutional amendment must be enacted to protect this status and prevent other types of marriages.
FMA opponents, however, say that the amendment would violate state rights to regulate marriage laws. They also argue that it would restrict civil rights and violate the right to privacy. Some religious groups also oppose FMA, arguing that it is not the government’s role to define marriage and that the amendment would violate freedom of religion.
Many politicians, wishing to support same-sex rights without alienating advocates of traditional marriage, have supported civil unions for same-sex couples. These unions, the details of which vary by state, confer various rights and benefits, but not the full rights that marriage bestows. Civil-union rights may include legal protections relating to wills and property, probate, adoption, spousal abuse, access to state employee group insurance, workers’ compensation benefits, family leave benefits, and power of attorney.
But these rights, say advocates, offer only a fraction of the benefits that the U.S. government gives to couples who are legally married. These include the right to make medical decisions on behalf of the spouse or to take sick leave to care for a partner, and the right to visit a partner in the hospital or in prison. Legally married couples also enjoy a wider range of protections in matters of divorce, child custody, automatic inheritance, domestic violence, joint bankruptcy, and receipt of Social Security benefits, and also receive tax advantages not given to unmarried couples. As of 2012, the states of Delaware, Hawaii, Illinois, New Jersey, and Rhode Island allow civil unions. The states of California, Colorado, Oregon, Nevada, and Wisconsin have domestic partnerships, which offer limited spousal rights to same-sex couples.
According to a Pew Research Center report in 2009, some 53 percent of Americans oppose same-sex marriage, but 57 percent support civil unions for same-sex couples. By 2012 several Pew Research Center surveys showed that 48 percent of Americans supported same-sex marriage, while 43 percent opposed it. In 1996, when he was running for the Illinois Senate, Obama stated: “I favor legalized same-sex marriages, and would fight efforts to prohibit such marriages.” But during his presidential campaign in 2008 Obama shifted his views, stating his support for civil unions. Some analysts accused the candidate of pandering to the large African American demographic that opposes same-sex marriage. According to the White House Web site, the president “supports full civil unions and federal rights for LGBT [lesbian, gay, bisexual and transgendered] couples and opposes a constitutional ban on same-sex marriage.” By 2012 his position had changed, and in May of that year he publicly announced that he supported same-sex marriage. Obama became the first sitting president to support same-sex marriage.
Much of the debate on same-sex marriage stems from religious teachings on marriage and on homosexuality. Islam, for example, officially prohibits same-sex marriage, whereas Reform Judaism has long permitted same-sex couples to celebrate their commitment. The Roman Catholic church opposes same-sex marriage, and American bishops, stating that “marriage is a faithful, exclusive and lifelong union between one man and one woman,” strongly support the FMA.
The United Church of Christ, in 2005, became the first major Christian denomination to give official support to same-sex marriage. In 2009 the Episcopal Church voted not to block same-sex marriages in dioceses that chose to perform them. More-fundamentalist churches, such as the Southern Baptist Convention, however, have actively opposed same-sex marriage and homosexuality. Unitarian Universalist churches unequivocally support same-sex marriage. Even though certain religions may or may not support same-sex marriage, attitudes among churchgoers may differ considerably from those of church officials.