Same-sex marriage in the United States explained

Same-sex marriage, also referred to as gay marriage, is a marriage between two persons of the same sex. Currently the federal government of the United States does not recognize same-sex marriage, under the Defense of Marriage Act, but same-sex marriage is currently legal in two states, Massachusetts and Connecticut[1] . The issue is a divisive political issue in the United States and elsewhere. The social movement to obtain the rights and responsibilities of marriages in the United States for same-sex couples began in the early 1970s, and the issue became a prominent one in U.S. politics in the 1990s.

Legal issues

See also: Same-sex marriage legislation in the United States.

Federal law

The legal issues surrounding same-sex marriage in the United States are complicated by the nation's federal system of government. Traditionally, the federal government did not attempt to establish its own definition of 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 in 1996, however, a marriage was explicitly defined as a union of one man and one woman for the purposes of federal law. (See .) Thus, no act or agency of the federal government currently recognizes same-sex marriage.

According to the federal government's Government Accountability Office (GAO), 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.

However, many aspects of marriage law affecting the day to day lives of inhabitants of the United States are determined by the states, not the federal government, and the Defense of Marriage Act does not prevent individual states from defining marriage as they see fit; indeed, most legal scholars believe that the federal government cannot impose a definition of marriage onto the laws of the various states by statute.

State law

See Same-sex marriage legislation in the United States by state

Same-sex marriage has been legal in Massachusetts since November 18, 2003, and in Connecticut since October 10, 2008.[2] Same-sex marriage is only recognized at the state level, as the federal Defense of Marriage Act explicitly bars federal recognition of such marriages.

Opponents of same-sex marriage have attempted to prevent individual states from recognizing same-sex unions by amending 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 Republican-controlled 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.[3]

On May 15, 2008, the Supreme Court of California issued a widely publicized 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.[4] [5] Citing the 1948 California Supreme Court decision Perez v. Sharp, which reversed the interracial marriage ban, In re Marriage Cases struck down California's 1977 one-man, one-woman marriage law and a similar voter-approved 2000 law (which had passed by a margin of 61% to 39%) in a 4-3 ruling written by Chief Justice Ronald George). The Advocates for Faith and Freedom and the Alliance Defense Fund, among others, asked for a stay of the ruling,[6] but the court denied the requests[7] [8] and its ruling took effect at 5:00 p.m. on June 16, 2008.[7] The court ruling in California gave rise to considerable opposition locally and nationally.[9] Same-sex marriage opponents in California placed a state constitutional amendment known as Proposition 8 on the November ballot for the purpose of restoring an opposite-sex definition of marriage;[10] Florida and Arizona also placed constitutional bans on same-sex marriage on the November 2008 ballot. Proposition 8 was passed on Election Day 2008, as were the proposed marriage protection amendments in Florida and Arizona.[11] The California amendment is being challenged in a court proceeding.

As of January 1, 2009, Vermont, New Jersey, and New Hampshire have created legal unions that, while not called marriages, are explicitly defined as offering all the rights and responsibilities of marriage under state (though not federal) law to same-sex couples. Maine, Hawaii, the District of Columbia, Oregon, Washington, and Maryland 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. As of January 1, 2009, thirty[12] states have constitutional amendments explicitly barring the recognition of same-sex marriage, confining civil marriage to a legal union between a man and a woman. More than 40 states explicitly restrict marriage to two persons of the opposite sex, including some of those that have created legal recognition for same-sex unions under a name other than "marriage." A small number of states ban any legal recognition of same-sex unions that would be equivalent to civil marriage.

Same-sex couples have sued for the right to marry in Iowa;[13] [14] the Iowa Supreme Court heard oral arguments in the case on December 9, 2008, and a ruling is expected in 2009.

Detailed summary : see

Impact of foreign laws

The nationwide legalization of same-sex marriage in Canada has raised questions about US law, due to Canada's proximity to the US and the fact that Canada has no citizenship or residency requirement to receive a marriage certificate (unlike the Netherlands and Belgium). Canada and the U.S. have a history of respecting marriages contracted in either country.

Immediately after the June 2003 ruling legalizing same-sex marriage in Ontario, a number of American couples headed or planned to head to the province in order to get married. A coalition of American national gay rights groups issued a statement asking couples to contact them before attempting legal challenges, so that they might be coordinated as part of the same-sex marriage movement in the United States.

Same-sex marriages are recognized nationwide in the Netherlands, Belgium, Spain, Canada, South Africa, Norway, and, beginning in May 2009, in Sweden. Same-sex marriage conducted abroad is recognized in Israel, France, Aruba, Netherlands Antilles and the states of New Mexico, New York and Rhode Island.



Same-sex marriage supporters make several arguments in support of their position. Some argue that same-sex marriage is a matter of equality, and that the rights of those involved in same-sex relationships are violated if same-sex unions are not legally recognized.[15] Advocates of same-sex marriage sometimes liken prohibitions on same-sex marriage to past prohibitions on interracial marriage.[16] Some same-sex marriage supporters argue that same-sex marriage should be allowed because same-sex marriage does no harm to families or society,[17] provides important benefits for same-sex partners and their children,[18] and extends a civil right to a minority group.[19]

Christopher Ott, a reporter for The Progressive, has characterized the social conservatives' predictions of legalized polygamy in states such as Massachusetts that have same-sex marriage as false. He confronts the common argument that same-sex marriage would devalue marriage as a whole by referencing other historical events such as allowing women to vote and stating that it did not devalue the electoral process. Ott describes the prohibition of same-sex marriage as devaluing the American principle of equal treatment.

The Economist magazine, while expressing support for the same sex marriage, argued that attempts to force same-sex marriage through the Supreme Court constitute "yet another self-damaging act of judicial overreach". The magazine further argues that it is sensible for proponents of same-sex marriage to "concentrate on winning their battles in the court of public opinion and the chambers of the legislature."[20]

Mayors of several large cities such as Atlanta[21], Boston[22], Chicago[23], Los Angeles[24], New York City[25], Salt Lake City[26], San Francisco[27], San Diego[28] and Seattle[29] publicly supported same-sex marriage.

Other politicians who have announced their support for same-sex marriage include Massachusetts Governor Deval Patrick, former Alaska Senator Mike Gravel, former New York Governor Eliot Spitzer, New York Governor David Paterson, New Jersey Governor Jon Corzine, Ohio Congressman Dennis Kucinich, Connecticut Congressman Jim Himes, Wisconsin Senator Russ Feingold, former Vice President Al Gore, Massachusetts Senator Ted Kennedy, former Rhode Island Senator Lincoln Chafee and his successor, incumbent Senator Sheldon Whitehouse, Oregon Senator Ron Wyden, former Minnesota Senator Mark Dayton, and New York Senator Kirsten Gillibrand.

Several political parties such as the Communist Party USA,[30] U.S. Green Party, the Socialist Party USA,[31] and several state Democratic Parties, including the California Democratic Party,[32] the Iowa Democratic Party,[33] the Maine Democratic Party,[34] the Massachusetts Democratic Party,[35] and the Washington State Democratic Party[36] also support gay marriage.

Supporting civil unions or domestic partnerships

Those supporting the creation of a legal status for same-sex couples in the form of civil union or domestic partnership legislation include some state governors, such as those of California, Connecticut, New Mexico, Oregon, and Washington, the national Democratic Party,[37] Republican Former President George W. Bush,[38] [39] [40], and Democratic President Barack Obama.[41] However, after the 2008 elections, reports surfaced which indicated that Barack Obama had, in past years, stated in writing that he supported same-sex marriage.[42]


See Traditional marriage movement

Opposition to same sex marriage in the United States is associated by some with the religious right, though it is by no means limited to this group; social conservatives,[43] [44] the Roman Catholic Church,[45] [46] The Church of Jesus Christ of Latter-day Saints,[47] many Muslims,[48] and the Orthodox branch of Judaism[49] [50] also support the "traditional," opposite-sex definition of marriage. Prominent Evangelical Christian opponents of same-sex marriage have included Pat Robertson, James Dobson and Jerry Falwell. Organizations that support a "traditional" definition of marriage include the Alliance Defense Fund, Alliance for Marriage, American Family Association, The Church of Jesus Christ of Latter-day Saints, Family Research Council, Focus on the Family, National Organization for Marriage, Orthodox Church in America, Rabbinical Council of America,[51] and the national Republican Party.[52]

Prominent politicians opposing same-sex marriage include Alaska Governor Sarah Palin,[53] former Arkansas Governor Mike Huckabee,[54] Louisiana Governor Bobby Jindal,[55] Minnesota Governor Tim Pawlenty,[56] Texas Governor Rick Perry,[57],and U.S. Senators Harry Reid of Nevada,[58] Robert Byrd of West Virginia,[59] Mark Pryor of Arkansas, [60] Joe Lieberman of Connecticut,[61] Sam Brownback of Kansas,[62] Tom Coburn of Oklahoma,[63] Orrin Hatch of Utah,[64] John McCain of Arizona, Mitch McConnell of Kentucky,[65] and John Thune of South Dakota.[66]

Current President of the United States Barack Obama opposed gay marriage when he was senator of Illinois and also opposed a federal ban on gay marriage, arguing states should decide.[67] On the other hand, Obama has also opposed California's constitutional ban on gay marriage, in addition to supporting gay marriage during his Illinois Senate race, making his position on the issue a point of controversy.[68]

Those who oppose same-sex marriage offer a variety of reasons for their position. Opponents of same-sex marriage argue that same-sex relationships are not marriages,[69] that same-sex marriage is contrary to the best interests of children because it deprives children of either a mother or a father,[70] [71] [72] [73] that legalization of same-sex marriage will open the door for the legalization of polygamy[74] [75] or marriages between humans and animals,[76] and that legalization of same-sex marriage would erode religious freedoms.[77] [78] [79] Other opponents of same-sex marriage hold that same-sex marriage is contrary to God's will,[80] [81] that it is unnatural,[82] that it encourages unhealthy behavior,[83] and that it harms the family structure of society. Still others argue that same-sex marriage would increase the prevalence of homosexual behavior,[84] or would encourage individuals to act upon homosexual urges, when such individuals ought to instead seek help to overcome the temptation toward homosexual behavior.[81] Some same-sex marriage opponents take the view that an opposite-sex definition of marriage does not treat anyone unequally because unmarried adults are free to marry any unrelated, unmarried, consenting adult of the opposite sex.[85] Others argue that same-sex relationships are intrinsically different from marriages, and that any comparison with interracial marriage is unjustified.[86]

A writer of The Weekly Standard, Stanley Kurtz, adjunct fellow at the Hudson Institute, blames same-sex marriage in the Netherlands for an increase in parental cohabitation contracts. He asserts that same-sex marriage has detached procreation from marriage in the Dutch mind and would likely do the same in the United States.

Popular opinion

See also: Same-sex marriage in the United States public opinion.

Case law

United States case law regarding the spousal rights of gay or bisexual persons:

See also

In general

In the United States


. Evan Wolfson. 2004. Why Marriage Matters: America, Equality, and Gay People's Right to Marry. Simon & Schuster. New York. 0-7432-6459-2.

. George Chauncey. 2004. Why Marriage?: The History Shaping Today's Debate over Gay Equality. Basic Books. New York. 0-465-00957-3.

. James Dobson. 2004. Marriage Under Fire. Multnomah. Sisters, Or.. 1-59052-431-4.

External links

Supporting same-sex marriage

Opposing same-sex marriage

Notes and References

  1. Gay Marriage Is Ruled Legal in Connecticut
  2.,0,5399554.story State Supreme Court Legalizes Same-Sex Marriage
  3. Senate blocks same-sex marriage ban, CNN, June 7, 2006, (Accessed July 5, 2006)
  4. California same-sex marriage ban struck down
  5. News: California Supreme Court legalizes same-sex marriage. Mintz. Howard. 15 May 2008. Mercury News. en. 2008-05-15.
  6. California's top court legalizes gay marriage
  7. Web site: California Supreme Court Denies Rehearing and Stay in Marriage Cases. 2008-06-04. 2008-06-04. PDF.
  8.,0,7825437.story, California Supreme Court refuses to delay gay marriage
  9. Statement by the Catholic bishops of CA
  10., Gay Couples Rejoice at Ruling
  12. Number of
  13. Gay marriage decisions ripe in Calif., Conn.
  14. Freedom to Marry | Maps
  30. Web site: Election Platform 2004. Communist Party USA. 2006-07-05.
  31. Web site: Socialist Party Platform: Human Rights. Socialist Party USA. 2006-07-05.
  32. Web site: "California Democrats Present Our Blueprint for the Golden State". California Democratic Party. 2008-05-15. PDF.
  33. Web site: 2008 Iowa Democratic Party Platform. Iowa Democratic Party. 2009-02-19.
  34. Web site: 2006 MDP Platform. Maine Democratic Party. 2008-03-17.
  35. Web site: Massachusetts Democratic Party Platform. Massachusetts Democratic Party. 2008-03-17.
  36. Web site: Platform of the Democratic Party of Washington. Washington State Democratic Convention. 2008-03-17. PDF.
  37. Web site: Democratic Party 2004 Platform. PDF. see page 42
  38. News: Bush Tolerates Civil Unions, Thinks States Should Decide. Hunter. Melanie. Cybercast News Service. 27 October 2004. 2008-03-07.
  39. News: Bush Says His Party Is Wrong to Oppose Gay Civil Unions. Bumiller. Elisabeth. The New York Times. 26 October 2004. 2008-03-07.
  40. News: Bush's gay union stance irks conservatives. Associated Press. 26 October 2004. 2008-03-07.
  43. Home | National Organization for Marriage
  44. Conservative Party of New York State
  45. New York State Catholic Conference - The Official Public Policy Voice of the Catholic Conference of the Empire State
  46. Catholic League: For Religious and Civil Rights
  49. Jewish Law - LawPolicy ("Agudath Israel of America - Policy Paper")
  50. Caucus For America | Battling for the Soul of America
  51. name="orthjew">Same-Sex Marriage, Rabbinical Council of America. (Accessed July 5, 2006)
  52. Web site: Republican Party 2004 Platform. PDF.
  71. NYFCF
  77. Banned in Boston
  80. Web site: The Religious Right and Anti-Gay Speech: Messengers of Love or Purveyors of Hate?. Matthew Shepard Online Resources.
  82. Web site: Anti-Gay Backlashes Are on 3 States' Ballots. 1992-10-04. 2008-06-06. The New York Times.
  83. - Same Sex Marriages (Pros & Cons, Arguments For and Against)