Background & Facts

see also the skinny, pro & con, links

The federal government and gay marriages

The federal amendment that was proposed in 2004 was not the first time Congress took on the subject of gay marriage; they set limits to same-sex marriages in 1996's Defense of Marriage Act (DOMA), which made sure that only heterosexual married couples could benefit from national laws, such as those that cover entitlements, litigation, and taxes. Gays cannot, for example, use federal law when taking time off to care for sick partners. DOMA also says states don't have to recognize the rights of gay couples married in other states.

The states

In June 2009, New Hampshire became the sixth state to okay gay marriages. Eight other states grant gay couples a number of rights by recognizing same-sex “civil unions” or "domestic partnerships," but these unions don't equal marriage - to the IRS or to many Americans. A number of other states, while not recognizing gay couples in general, do give benefits to state employees in same-sex domestic partnerships. New York and California are in the unique position of not permitting gay weddings but recognizing gay marriages - from outside the state, in the case of New York, and from the brief time that gay marriages were legal, in the case of California.

The vast majority of states, however, outright prohibit gay marriages, either through law or with their own constitutional amendments. (Lambda)

states that prohibit same sex marriages (), allow them () or offer some otheracknowledgement of gay marriage ()

state		status	state		status
Alabama		by law	Nebraska		by constitution
Alaska		by constitution	Nevada		domestic partnerships
Arizona		by law	N. Hamp.
Arkansas		by constitution	NJ		civil unions
California		Proposition 8 ended a brief period of gay weddings, but civil unions - and the 18,000 gay couples already wed - are still legal	NM		by attorney general, but domestic partner benefits for state employees
Colorado		by law	NY		by law, but respects same-sex marriage licences issued outside NY
Conn.			NC		by law
Delware		by law	ND		by constitution
Florida		by law	Ohio		by constitution
Georgia		by constitution	Oklahoma		by constitution
Hawaii		reciprocal beneficiaries	Oregon		domestic partnerships
Idaho		by law	Penn.		by law
Illinois		by law	RI		by law, but domestic partner benefits
Indiana		by law	SC		by law
Iowa			SD		by constitution
Kansas		by constitution	Tenn.		by law
Kentucky		by constitution	Texas		by constitution
Lousiana		by constitution	Utah		by constitution
Maine		domestic partnerships	Vermont
Maryland		by law, but lawsuit pending	Virginia		by law
Mass.			Wash.		domestic partnerships
Michigan		by constitution	Wash. DC		domestic partnerships
Minne.		by law	WV		by law
Miss.		by constitution	Wisc.		by constitution
Missouri		by constitution	Wyoming		by law
Montana		by constitution

Legal Issues

The legal questions fork in three directions. Does denying same-sex marriage deny homosexual couples equal constitutional rights? What responsibilities do states have to honor the wedding vows of gay couples made in other states? And how would the constitution you learned about in grade school change with added words banning gay marriage?

The Massachusetts ruling turned on the question of unfair discrimination. Like an earlier Hawaii high court decision, it reasoned that lawmakers cannot make a law that limits what people can do based on their sex. Even though the state argued that they weren't discriminating between men and women – after all, both sexes were limited in who they could marry – the court threw out that argument as saying it's like saying it's not discriminatory to tell both blacks and whites they cannot marry each other. The court also thought a ban on gay marriage unfairly selects people for treatment on the basis of sexual orientation. (We're assuming here that someone who wants to enter a same-sex marriage is not heterosexual.) The arguments for the other side – that a law that protects heterosexual marriage for society's good – was also not given much weight by the court.

Voters in Hawaii have since changed the state constitution to bar same-sex marriage, and Massachusetts' lawmakers are now trying to do the same. But if such a case ever makes it to federal court, similar arguments could be made under the federal constitution's 14th amendment.

As for whether a state would have to honor a marriage contract given a gay couple in another state, the federal DOMA pretty much settled that debate by letting states off the hook and saying - they don't. But that left a legal issue hanging having to do with Article IV, section 1 of the US Constitution, which says that generally states have to give “full faith and credit” to other state laws. Exceptions can be made (think Utah 's polygamy laws), but they are rare, and this one could come up for dispute.

The proposed amendment to the US constitution could run into similar problems – both with the 14th amendment and the “full faith and credit” clause of Article IV.

Protecting DOMA

The House voted on the Marriage Protection Act in July, 2004 which would prevent legal challenges to DOMA going to federal courts - instead directing them to state courts. The upshot is that states would be safe from federal courts overturning DOMA and possibly ordering states to honor the rights of gay couples married in other parts of the country. (So far DOMA hasn't been successfully challenged, with the first case in August 2004 upholding DOMA by a federal judge.) The bill, however, never made it through the Senate and, although it's been reintroduced in the House, it doesn't look like it'll go far anytime soon.

DOMA may now be getting a challenge from the White House; although the Obama administration has said nothing to criticize DOMA, in June 2009 it okayed new rules to give federal workers - limited - benefits to their gay partners (NYT).

Same-sex marriage and the Supremes

The Supreme Court chose not to look at a challenge to gay marriages presented to them in November, 2004. But because the case come from legal left field, their failure to do so doesn't say much about what would happen if a real case came before them.

Same-sex marriage around the globe

As of May 2008, five nations recognize gay marriages: Netherlands, Belgium, Canad, Spain and South Africa. (Pew)

Updated June, 2009.

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