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
With a state Supreme Court decision in May '08, California joined Massachusetts as one of the two states that allow gay marriage. Four other states - Vermont, Connecticut, New Hampshire (WP) and New Jersey (WP & WP) - grant gay couples a number of rights by recognizing same-sex “civil unions,” but these unions don't equal marriage - to the IRS or to many Americans. A number of other states - Maine, Oregon, Washington and Hawaii - as well as DC give certain rights to "domestic partnerships." In three more states - Washington, New York, and Maryland - decisions from lower court judges have opened up the possibility of legalizing gay marriages as well (NYT, WP). Gay Californians' right to wed may be shortlived; there's already a measure lined up for the ballot in November to amend the California constitution to ban same sex marriages.
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 constitution | Nebraska | |
by constitution |
| Alaska | |
by constitution, but domestic partner benefits for state employees | Nevada | |
by constitution |
| Arizona | |
by law | N. Hamp. | |
civil unions |
| Arkansas | |
by constitution | NJ | |
civil unions |
| California | |
NM | |
by attorney general, but domestic partner benefits for state employees | |
| Colorado | |
by constitution | NY | |
by law, but domestic partner benefits for state employees |
| Conn. | |
civil unions | 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 constitution | Penn. | |
by law |
| Illinois | |
by law, but domestic partner benefits for state employees | RI | |
by law, but domestic partner benefits for state employees |
| Indiana | |
by law | SC | |
by constitution |
| Iowa | |
by law, but domestic partner benefits for state employees | SD | |
by constitution |
| Kansas | |
by constitution | Tenn. | |
by constitution |
| Kentucky | |
by constitution | Texas | |
by constitution |
| Lousiana | |
by constitution | Utah | |
by constitution |
| Maine | |
domestic partnerships | Vermont | |
civil unions |
| Maryland | |
by law, but lawsuit pending | Virginia | |
by constitution |
| 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, but domestic partner benefits for state employees |
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.
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 May, 2008.
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