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Same-sex marriage legislation in the United States

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For more comprehensive descriptions broken down by state see the article, Same-sex marriage legislation in the United States by state.

In response to court action in a number of states, the United States federal government and a number of state legislatures passed or attempted to pass legislation either prohibiting or allowing some form of same-sex marriage or union.

Federal level Edit

In 1996, the United States Congress passed and President Bill Clinton signed Public Law 106-199, the Defense of Marriage Act. The Act defines "marriage" and "spouse" for purposes of federal law.

The impact of the second part of the Act is less clear. Traditionally, states have been allowed to regulate the marital status of their own citizens. A narrow interpretation of the Act only codifies this policy. The Act was arguably passed out of concern that same-sex couples from all over the U.S. would fly to Hawaii, get married, and demand recognition in their home states (although Hawaii ultimately never allowed same-sex marriage).

A broad reading of the Act would allow states to refuse to recognize same-sex marriages of non-citizens, as well. For example, a same-sex couple from Massachusetts might get married in Massachusetts, and later move to another state, where the state would have no obligation to recognize the marriage. The Act may also mean that the state could refuse to recognize the marriage even if the couple were only passing through transiently (relevant, for example, in emergency medical decision-making), and not moving permanently. Either of these broader readings would be an exception to the Full Faith and Credit Clause.

Proponents of equal marriage rights for same-sex couples observe that there are over 1,138 federal laws in which marital status is a factor, as well as state and private benefits (family memberships, discounts, etc.) which are denied same-sex couples by excluding them from participating in marriage. A legal denial of federal rights or benefits, they say, directly contradicts the 14th Amendment of the US Constitution which provides for equal protection and substantive due process under the law: rights conferred to one person cannot be denied to another.

In the 2003 case Lawrence v. Texas which came before the Supreme Court of the United States, the court held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. Many proponents of same-sex marriage believe that this ruling, especially when combined with the 1967 ruling in Loving v. Virginia that eliminated anti-miscegenation laws, paves the way for a subsequent decision invalidating state laws prohibiting same-sex marriage. However, these proponents often do not mention, or are not aware, of the United States Supreme Court's summary affirmance in the case of Baker v. Nelson 409 U.S. 810. This decision, binding on all lower federal courts, clearly distinguishes Loving, and establishes the right of the individual States to uphold traditional opposite-sex marriage.

Challenges to DOMA have already been rejected by several federal courts, including a decision by Judge James S. Moody in the case of Wilson v. Ake.

Some opponents of same-sex marriage, wanting to ensure that the constitutionality of such laws cannot be challenged in the courts under the Full Faith and Credit clause, Equal Protection Clause or Due process clause of the United States Constitution, have proposed a Federal Marriage Amendment to the constitution that would prevent the federal government or any state from providing a marriage or the legal incidents thereof to a same-sex couple, whether through the legislature or the courts.

The amendment was debated in the United States Senate, but on July 14, 2004, a procedural motion to end debate failed by a wider-than-expected margin of 48 votes to 50. This effectively prevented the amendment from facing a full Senate vote.

Also in 2003, lesbian comedian Rosie O'Donnell's court case with ex-colleagues raised another new issue when O'Donnell's life partner, Kelli, was forced to testify against O'Donnell. Under United States law, spouses cannot be forced to testify against each other; but because same-sex couples are not allowed to marry, they are denied this courtroom right, part of a long list of benefits of marriage in the United States. They married on February 26, 2004 in San Francisco, but this was later nullified by the California Supreme Court.

As of April 2006, California same-sex couple Arthur Smelt and Christopher Hammer had a marriage-rights case pending in the federal Ninth Circuit Court of Appeals. Gay-rights groups including the Lambda Legal Defense and Education Fund and the American Civil Liberties Union did not support the lawsuit, on the grounds that it is likely to lose in the Supreme Court and set an unfavorable precedent. The Court eventually tossed out the suit in the spring of 2006, saying that the couples must wait for a ruling by the Appeals Court in California.[1]

State level Edit

See Same-sex marriage legislation in the United States by state for statutory text and actions sorted by state.

Efforts to enable same-sex unions Edit

Votes by state legislatures to recognize various types of same-sex unions, sorted by date:

State Date Type of same-sex union Senate Lower house Governor Final
outcome
Yes No Yes No
20px District of Columbia 1992/2002 Template:Ref Domestic Partnership Passed Template:Ref Signed Template:Ref Yes Yes
20px Hawaii 1996 Domestic Partnership Passed Failed - No No
20px Hawaii 1997 Reciprocal Beneficiary Relationship Passed Passed Signed Yes Yes
20px California 1999 Domestic Partnership 22 14 41 36 Signed Yes Yes Template:Ref
20px Vermont April 2000 Civil Union 19 11 79 68 Signed Yes Yes
20px California 2001 Domestic Partnership (expansion) 23 11 41 32 Signed Yes Yes Template:Ref
20px California 2003 Domestic Partnership (expansion) 23 14 41 33 Signed Yes Yes Template:Ref
20px New Jersey January 2004 Domestic Partnership 23 9 41 28 Signed Yes Yes
20px Maine April 2004 Domestic Partnership 19 14 84 58 Signed Yes Yes
20px Utah February 2005 Reciprocal Beneficiary Relationship 10 18 - - - No No
20px Connecticut April 2005 Civil Union 27 9 85 63 Signed Yes Yes
20px Maryland May 2005 Domestic Partnership 31 16 83 50 Vetoed No No Template:Ref
20px California June 2005 Same-Sex Marriage - - 37 36 - No No Template:Ref
20px Oregon July 2005 Civil Union 19 10 - - - No No Template:Ref
20px California September 2005 Same-Sex Marriage 21 15 41 35 Vetoed No No Template:Ref
20px District of Columbia April 2006 Domestic Partnership (expansion) Passed Template:Ref Signed Template:Ref Yes Yes
20px Colorado November 2006 Domestic Partnership Pass Pass Rejected by Voters No No
20px New Jersey December 2006 Civil Union 23 12 56 19 Signed Yes Yes
20px Washington April 2007 Domestic Partnership 28 19 63 35 Signed Yes Yes
20px Oregon May 2007 Domestic Partnership 21 9 34 26 Signed Yes Yes
20px New Hampshire May 2007 Civil Union 14 10 243 129 Signed Yes Yes
20px New York June 2007 Same-Sex Marriage Failed 85 61 - No No
20px California September 2007 Same-Sex Marriage 22 15 42 34 Vetoed No No Template:Ref
  • Template:Note Granted limited rights.
  • Template:Note Expanded rights included.
  • Template:Note Gave domestic partnerships legal rights of married couples.
  • Template:Note Maryland Governor vetoed legislation; a veto override would require two-thirds support.
  • Template:Note The vote failed to receive the absolute majority (41 votes) required to pass.
  • Template:Note The bill failed to come to a floor vote in the House of Representatives.
  • Template:Note California Governor vetoed legislation; a veto override would require two-thirds support.
  • Template:Note California Governor vetoed legislation; a veto override would require two-thirds support.
  • Template:Note Passed by the City Council; Signed by the Mayor of the District of Columbia in 1992 with delayed implementation until 2002 due to action taken by the U.S. Congress during the Congressional Review Period. (See Domestic partnership in the District of Columbia).
  • Template:Note Passed by the City Council; Signed by the Mayor of the District of Columbia with no delay action taken by the U.S. Congress during the Congressional Review Period.

Efforts to define marriage by constitutional amendment Edit

The following table shows all popular vote results regarding state constitutional amendments concerning same-sex marriage, and in some cases civil unions and domestic partnerships. The Hawaii amendment is different in that it granted the legislature authority to "reserve marriage to opposite-sex couples" (which the legislature had already done).

State Initiative Ban on Date Yes Yes vote No No vote Final
outcome
1998:
20px Alaska Ballot Measure 2 Marriage November 1998 68% (152,965) 32% (71,631) Yes Yes
20px Hawaii Constitutional Amendment 2 Marriage ban
permitted
November 1998 69% (285,384) 31% (117,827) Yes Yes Template:Ref
2000:
20px Nebraska Initiative Measure 416 Marriage and
civil union
November 2000 70% (450,073) 30% (189,555) Yes Yes Template:Ref
2002:
20px Nevada Question 2 Marriage November 2002 67% (337,183) 33% (164,555) Yes Yes
2004:
20px Arkansas Constitutional Amendment 3 Marriage and
civil union
November 2004 75% (753,770) 25% (251,914) Yes Yes
20px Georgia Constitutional Amendment 1 Marriage and
civil union
November 2004 76% (2,454,912) 24% (768,703) Yes Yes Template:Ref
20px Kentucky Constitutional Amendment 1 Marriage and
civil union
November 2004 75% (1,222,125) 25% (417,097) Yes Yes
20px Louisiana Constitutional Amendment 1 Marriage and
civil union
September 2004 78% (618,928) 22% (177,103) Yes Yes Template:Ref
20px Michigan State Proposal - 04-2 Marriage and
civil union
November 2004 59% (2,698,077) 41% (1,904,319) Yes Yes
20px Mississippi Amendment 1 Marriage November 2004 86% (957,104) 14% (155,648) Yes Yes
20px Missouri Constitutional Amendment 2 Marriage August 2004 71% (1,055,771) 29% (439,529) Yes Yes
20px Montana Initiative 96 Marriage November 2004 67% (295,070) 33% (148,263) Yes Yes
20px North Dakota Constitutional Measure 1 Marriage and
civil union
November 2004 73% (223,572) 27% (81,716) Yes Yes
20px Ohio State Issue 1 Marriage and
civil union
November 2004 62% (3,329,335) 38% (2,065,462) Yes Yes
20px Oklahoma State Question 711 Marriage and
civil union
November 2004 76% (1,075,216) 24% (347,303) Yes Yes
20px Oregon Measure 36 Marriage November 2004 57% (1,028,546) 43% (787,556) Yes Yes
20px Utah Constitutional Amendment 3 Marriage and
civil union
November 2004 66% (593,297) 34% (307,488) Yes Yes
2005:
20px Kansas Proposed amendment 1 Marriage and
civil union
April 2005 70% (414,106) 30% (178,018) Yes Yes
20px Texas Proposition 2 Marriage and
civil union
November 2005 76% (1,718,513) 24% (536,052) Yes Yes
2006:
20px Alabama Sanctity of Marriage Amendment Marriage and
civil union
June 2006 81% (734,746) 19% (170,399) Yes Yes
20px Arizona Proposition 107 Marriage and
civil union
November 2006 48% (721,489) 52% (775,498) No No
20px Colorado Amendment 43 Marriage November 2006 56% (768,700) 44% (612,155) Yes Yes
20px Idaho Amendment 2 Marriage and
civil union
November 2006 63% (281,823) 37% (163,191) Yes Yes
20px South Carolina Amendment 1 Marriage and
civil union
November 2006 78% (818,894) 22% (230,674) Yes Yes
20px South Dakota Amendment C Marriage and
civil union
November 2006 52% (172,237) 48% (160,756) Yes Yes
20px Tennessee Marriage Protection Amendment Marriage November 2006 81% (1,417,315) 19% (326,335) Yes Yes
20px Virginia Virginia Marriage and
civil union
November 2006 57% (1,325,668) 43% (1,003,967) Yes Yes
20px Wisconsin Referendum 1 Marriage and
civil union
November 2006 59% (1,260,554) 41% (861,554) Yes Yes
2008:
20px Arizona Marriage Protection Amendment Marriage November 2008 NA
20px California Proposition 8 Marriage November 2008 NA
20px Florida Amendment 2 Marriage and
civil union
November 2008 NA

See also : List of defense of marriage amendments to U.S. state constitutions by type

Pending efforts to define marriage through constitutional amendment Edit

State Date Description
20px Connecticut No Specific Date Voters in Connecticut may be asked this year to hold a constitutional convention, where proponents hope to pass an amendment banning same-sex marriage.
20px Iowa No Specific Date Failed to be brought up for a vote in 2008. Likely to be re-introduced in 2009. Will probably not be on the ballot until 2012 at the earliest.
20px Minnesota No Specific Date Failed to be brought up for a vote, likely to be re-introduced next year.
20px North Carolina No specific date Amendment introduced in legislature several times with broad bi-partisan support, but has never been brought up for a vote in either chamber. Likely to be re-introduced this year, but is unlikely to go to voters as long as Democrats control the state legislature.
20px Washington No specific date After the court decision rejecting same-sex marriage in 2006, advocates are expected to try and legalize it through the legislature. Opponents have also filed amendments to ban it, but it is unlikely that they will pass as long as Democrats control the state legislature.
20px Alaska 2008 Alaska has had a marriage amendment since 1998, but in April 2007, 53% of voters approved an advisory referendum calling on the legislature to allow a 2008 vote on banning same sex benefits as well.[2]
20px Delaware 2008 Amendments introduced in legislature.
20px Indiana 2008 Almost made the 2008 ballot, but was not brought up for a vote by the democratic leadership despite support from most democrats. The earliest it can now reach voters is 2012.
20px Maryland 2008 In 2007, the Maryland Supreme Court upheld a state ban on same-sex marriage, spurring several pieces of legislation in the state legislature, including a constitutional amendment banning the practice.
20px New Jersey 2008 There is speculation the the legislature may attempt to legalize same-sex marriage in 2009. If this is the case, there will be a strong push to ban it through constitutional amendment.
20px West Virginia 2008 Has been introduced in legislature several times, failed to come up for a vote. Will be re-introduced.
20px Pennsylvania 2009 Pennsylvania For Marriage is pushing for a public vote on an amendment; it is intended to define marriage as between one man and one woman as well as ban same-sex civil unions. State senate and assembly could not agree on the wording, preventing the issue from going to voters in 2007. The earliest it could be on the ballot is 2009.
20px Illinois 2010 Protect Marriage Illinois must collect 270,000 petition signatures by April 20, 2008 to be on the 2008 ballot, although it would be non-binding.
  • Template:Note Does not explicitly define marriage, but allows the legislature to define marriage.
  • Template:Note Ban declared unconstitutional by Judge Joseph Bataillon, Chief Judge of the U.S. District Court for the District of Nebraska.[3] The ruling was appealed to the Eighth U.S. Circuit Court of Appeals based in St. Louis.[4] That Court issued a ruling that re-instated the ban, declaring in part that it was a legitimate state interest.[5]
  • Template:Note On October 06, 2004, a Louisiana district judge tossed out the approved amendment saying it addressed two subjects: marriage and civil unions. Shortly after, the Louisiana Supreme Court unanimously overturned that ruling and found the amendment valid.[6]
  • Template:Note Ban declared unconstitutional on May 16, 2006 by Fulton County Superior Court Judge Constance C. Russell, who said it violated the single-subject rule in Georgia's constitution. Governor Sonny Perdue said he was disappointed by the decision, which he said ran contrary to the voice of Georgia voters. The following day, the ruling was appealed to the Supreme Court of Georgia. On July 6, 2006, the Georgia Supreme Court ruled that the ban did not violate the single-subject rule.[7][8]

Efforts to define marriage by statuatory initiative Edit

The following consists of votes by statuatory initiatives that ban same-sex marriage and/or civil unions and domestic partnerships:

State Date Yes Yes vote No No vote Description Final outcome
West:
20px California March 2000 61% (4,618,673) 39% (2,909,370) Proposition 22. Amend the Family Code to say: Only marriage between a man and a woman is valid or recognized in California.[9]Template:Ref NoYes but ruled unconstitutional Template:Ref
20px Colorado November 2006 Prevent same-sex couples from being able to register as domestic partnerships. (Failed to qualify for ballot) NoNo
20px Colorado November 2006 47% (641,443) 53% (727,433) Colorado Referendum I (2006) :
To allow same-sex couples to register as "domestic partners".[10]
NoNo
20px Alaska April 2007 53% (60,896) 47% (54,442) Advisory Referendum. Calls on the legislature to place on the 2008 ballot an amendment to ban same sex employee benefits.[11] YesYes [12]
  • Template:Note There is a debate as to whether the adoption of Prop 22 only prohibited California from recognizing same-sex marriages performed in other states.
  • Template:Note In March 2005, Judge Richard Kramer ruled there appeared to be no rational state compelling interest in limiting marriage to heterosexual couples. His ruling was appealed to the California Court of Appeal for the 1st District, which upheld Proposition 22 on October 5, 2006. The Supreme Court of California ruled on May 15, 2008, that Proposition 22 is unconstitutional and it was struck down by the state's highest court.

ReferencesEdit

See alsoEdit

General Edit

United States Edit

External linksEdit


Template:Same-sex marriage in the United States

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