In the United States, same-sex marriage is recognized by the federal government and has been legalized in 36 U.S. states, These states are Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. the District of Columbia and 22 Native American tribal jurisdictions. More than 70% of the population live in jurisdictions where same-sex couples can legally marry.
Among the 38 states where same-sex marriage is legal to at least some degree, marriage is open to same-sex couples statewide in 35 of those, while it is restricted in 3 of them. Missouri recognizes same-sex marriages from out of state and same-sex marriages licensed by the City of St. Louis under a state court order; two other jurisdictions issue such licenses as well. In Kansas, marriage licenses are available to same-sex couples in most counties, but the state does not recognize their validity. Some counties in Alabama issued marriage licenses to same-sex couples for three weeks until the state Supreme Court ordered probate judges to stop doing so. That court's ruling did not address the recognition of same-sex marriages already licensed in Alabama, but referred to them as "purported 'marriage licenses'". In two additional states, same-sex marriages were previously legal between the time their bans were struck down and then stayed. Michigan recognizes the validity of more than 300 marriage licenses issued to same-sex couples and those marriages. Arkansas does not recognize the more than 500 marriage licenses issued to same-sex couples there, and the federal government has not taken a position on the Arkansas' marriage licenses.
The United States Supreme Court will decide whether a state may refuse to license same-sex marriages and whether it may refuse to recognize same-sex marriages from other jurisdictions. It heard oral arguments on April 28, 2015. A decision is expected in late June 2015.
- 1 Legal issues
- 2 Debate
- 3 Popular opinion
- 4 Case law
- 5 References
- 6 Bibliography
- 7 See also
- 8 External links
The Defense of Marriage Act (DOMA) was enacted in 1996. DOMA's Section 2 says that no state need recognize the legal validity of a same-sex relationship even if recognized as marriage by another state. It purports to relieve a state of its reciprocal obligation to honor the laws of other states as required by the Constitution's full faith and credit clause. Even before DOMA, however, states sometimes refused to recognize a marriage from another jurisdiction if it was counter to its "strongly held public policies". Most lawsuits that seek to require a state to recognize a marriage established in another jurisdiction argue on the basis of equal protection and due process, not the full faith and credit clause. Among many examples: (1) the U.S. District Court ruling in Bourke v. Beshear, which required Kentucky to recognize same-sex marriages from Canada and several U.S. states, was decided on equal protection grounds alone. The plaintiffs had claimed that Kentucky's ban violated the full faith and credit clause, but the court found it unnecessary to address that argument. and (2) the plaintiffs in Robicheaux v. Caldwell, who sought Louisiana's recognition of their out-of-state marriages, argued only on the basis of equal protection and due process. One of the Louisiana statutes they challenged made clear the state's assertion of its right to deny recognition to the legal act of another state: "A purported marriage between persons of the same sex violates a strong public policy of the state of Louisiana". (emphasis added)
DOMA's Section 3 defined marriage for the purposes of federal law as a union of one man and one woman. It was challenged in the federal courts. On July 8, 2010, Judge Joseph Tauro of the District Court of Massachusetts held that the denial of federal rights and benefits to lawfully married Massachusetts same-sex couples is unconstitutional under the equal protection clause of the U.S. Constitution. Beginning in 2010, eight federal courts found DOMA Section 3 unconstitutional in cases involving bankruptcy, public employee benefits, estate taxes, and immigration. On October 18, 2012, the Second Circuit Court of Appeals became the first court to hold sexual orientation to be a quasi-suspect classification and applied intermediate scrutiny to strike down Section 3 of DOMA as unconstitutional in Windsor v. United States. The U.S. Supreme Court ruled in Windsor on June 26, 2013, that Section 3 violated the Fifth Amendment. Other cases that sought review by the U.S. Supreme Court were Golinski v. Office of Personnel Management, Gill v. Office of Personnel Management, Massachusetts v. United States Department of Health and Human Services, and Pedersen v. Office of Personnel Management.
As a result of the Windsor decision, married same-sex couples—regardless of domicile—have federal tax benefits (including the ability to file joint federal income tax returns), military benefits, federal employment benefits, and immigration benefits. In February 2014, the Justice Department expanded federal recognition of same-sex marriages to include bankruptcies, prison visits, survivor benefits and refusing to testify against a spouse. Likewise in June 2014, family medical leave benefits under the Family Medical Leave Act 1975 were extended to married same-sex couples. With respect to social security and veterans benefits, same-sex married couples who live in states where same-sex marriage is recognized are eligible for full benefits from the Veterans Affairs (VA) and the Social Security Administration (SSA). The VA and SSA can provide only limited benefits to married same-sex couples living in states where same-sex marriage is not legal. Effective March 27, 2015, the definition of spouse under the Family and Medical Leave Act of 1993 includes employees in a same-sex marriage regardless of state of residence.
The federal government recognizes the marriages of same-sex couples who married in certain states in which same-sex marriage was legal for brief periods between the time a court order allowed such couples to marry and that court order was stayed, including Michigan. The federal government also recognized marriages performed in Utah from December 20, 2013 to January 6, 2014, even while the state didn't. Under similar circumstances, the federal government never took a position on Indiana or Wisconsin's marriages performed in brief periods, though it did recognize them once the respective states announced they would do so. It has yet to take a position with respect to similar marriages in Arkansas.
According to the federal government's Government Accountability Office (GAO) in 2004, 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.
Opponents of same-sex marriage have worked to prevent individual states from recognizing same-sex unions by attempting to amend 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 Senate Judiciary Committee on a party-line vote and was debated by the full Senate, but was ultimately defeated in both houses of Congress. On April 2, 2014, the Alabama State House adopted a resolution calling for a constitutional convention to propose an amendment to ban same-sex marriage nationwide.
There are three components to the legalization of same-sex marriage: the licensing of same-sex marriages, recognizing the legal validity of those licenses, and the recognition of same-sex marriages from other jurisdictions,
As of April 15, 2015, jurisdictions where marriage licenses are issued to same-sex couples include 37 states (Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming) and the District of Columbia. All those jurisdictions recognize the validity of their licenses, except for Kansas, where the state government refuses to recognize same-sex marriages (except for the Secretary of the Kansas Department of Health and Environment and clerks in two counties who are under federal court order not to enforce the state's same-sex marriage ban). Kansas is also the only one of the above listed jurisdictions that fails to recognize same-sex marriages from other jurisdictions. Same-sex marriage licenses are not available in all jurisdictions in both Kansas and Missouri. In Missouri, only Jackson County, St. Louis County, and the city of St. Louis issue marriage licenses to same-sex couples. Missouri does recognize same-sex marriages established in other jurisdictions.
Most counties in Alabama issued marriage licenses to same-sex couples after a federal court ruling struck down the state's same-sex marriage ban. However, all counties have stopped issuing licenses to same-sex couples following a ruling by the Supreme Court of Alabama contrary to the federal judgment. The status of same-sex marriages performed before the state court ruling, as well as the state's recognition of same-sex marriages from other jurisdictions, is unclear. At least 545 same-sex couples obtained marriage licenses and wed in Alabama between February 9 and March 3, 2015.
Twelve states (Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Nebraska, North Dakota, Ohio, South Dakota, Tennessee, and Texas), as well as two territories (Puerto Rico and the Virgin Islands), prohibit the licensing of same-sex marriages and their recognition from other jurisdictions. Michigan recognizes 323 same-sex marriages performed on March 22, 2014 in the state, the only day the ban was legally unenforceable.
Three territories (American Samoa, Guam and the Northern Mariana Islands) do not have any law prohibiting or recognizing same-sex marriage, but a Guam statute defines marriage as "the legal union of persons of opposite sex." All three have language in their statutes that assume the parties to a marriage are male and female.Even with no prohibition, none of these territories license same-sex marriage or recognize same-sex marriages from other jurisdictions. The American Samoa Code Annotated requires the parties to a marriage to identify themselves "son" and "daughter" of their parents and refers to the age of "the male" and "the female". The Commonwealth Code of the Northern Mariana Islands refers to the domicile of husband and wife when addressing divorce and sets minimum ages for a man and woman when a marriage involves a non-citizen. The Guam Code Annotated requires that the parties to a marriage "declare in the presence of the person solemnizing the marriage that they take each other as husband and wife". Government officials in Guam are divided as to whether the decision of the Ninth Circuit in Latta v. Otter requires them to license same-sex marriages.
Five states (Arkansas, Mississippi, Nebraska, South Dakota, and Texas) have one or more state or federal court rulings striking down the state's ban on same-sex marriage, and all have been stayed pending appeal. In Louisiana, a state court decision striking down the state's ban, affecting 3 parishes, has been stayed pending appeal.
Impact of foreign laws
The legalization of same-sex marriages across all of Canada (see same-sex marriage in Canada) has raised questions about U.S. law, due to Canada's proximity to the U.S. 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.
At present, same-sex marriages are recognized nationwide in the Netherlands, Belgium, Spain, Canada, South Africa, and Norway (from January 1, 2009). Same-sex marriage conducted abroad is recognized in Israel, Aruba, Netherlands Antilles and the states of New Mexico, New York and Rhode Island.
- See also: List of supporters of same-sex marriage in the United States
Same-sex marriage supporters make several arguments in support of their position. Gail Mathabane likens prohibitions on same-sex marriage to past U.S. prohibitions on interracial marriage. Fernando Espuelas argues that same-sex marriage should be allowed because same-sex marriage extends a civil right to a minority group. According to an American history scholar, Nancy Cott, "there really is no comparison, because there is nothing that is like marriage except marriage."
The Human Rights Campaign (HRC) is one of the leading advocacy groups in support of same-sex marriage. According to the HRC's website, "Many same-sex couples want the right to legally marry because they are in love—many, in fact, have spent the last 10, 20 or 50 years with that person—and they want to honor their relationship in the greatest way our society has to offer, by making a public commitment to stand together in good times and bad, through all the joys and challenges family life brings."
In the United States such professional organizations as the American Psychiatric Association, American Psychological Association, American Sociological Association, American Medical Association, American Academy of Pediatrics, American Academy of Nursing and National Association of Social Workers have said that claims that the legal recognition of marriage for same–sex couples undermines the institution of marriage and harms children are inconsistent with the scientific evidence which supports the conclusions: that homosexuality is a normal expression of human sexuality that is not chosen; that gay and lesbian people form stable, committed relationships essentially equivalent to heterosexual relationships; that same-sex parents are no less capable than opposite-sex parents to raise children; and that the children of same-sex parents are no less psychologically healthy and well-adjusted than children of opposite-sex parents. The body of research strongly supports the conclusion that discrimination by the federal government between married same-sex couples and married opposite-sex couples in granting benefits unfairly stigmatizes same-sex couples. The research also contradicts the stereotype-based rationales advanced to support passage of DOMA that the Equal Protection Clause was designed to prohibit.
The 2012 Democratic Party Platform used the term "marriage equality" in its expression of support.
Supporters of the legalization of same-sex marriage have successfully used social media websites such as Facebook to help achieve that goal. Some have argued that the successful use of social media websites by LGBT groups has played a key role in the defeat of religion-based opposition.
One of the largest scale uses of social media to mobilize support for same-sex marriage preceded and coincided with the arrival at the US Supreme Court of high-profile legal cases for Proposition 8 and the Defense of Marriage Act in March 2013. The 'red equals sign' project started by the Human Rights Campaign was an electronic campaign primarily based on Facebook which encouraged users to change their profile images to a red equal sign to express support for same-sex marriage. At the time of the court hearings it was estimated that approximately 2.5 million Facebook users changed their profile images to a red equals sign.
- See also: List of opponents of same-sex marriage in the United States and LGBT rights opposition in the United States
Opponents of same-sex marriage in the United States ground their arguments on parenting concerns, religious concerns, concerns that changes to the definition of marriage would lead to the inclusion of polygamy or incest, and in natural law-based reasoning. The Southern Baptist Convention adopted a statement in June 2003 that legalizing same-sex relationships would "convey a societal approval of a homosexual lifestyle, which the Bible calls sinful and dangerous both to the individuals involved and to society at large". The Church of Jesus Christ of Latter-day Saints, the United States Conference of Catholic Bishops, the Southern Baptist Convention, and National Organization for Marriage claim that children do best when raised by a mother and father, and that legalizing same-sex marriage is, therefore, contrary to the best interests of children. Maggie Gallagher of the National Organization for Marriage has raised concerns about the impact of same-sex marriage upon religious liberty and upon faith-based charities in the United States. Opponents of same-sex marriage have claimed that redefining marriage to include same-sex relationships would have harmful effects on biological family, children's rights, and social welfare. Stanley Kurtz of the Weekly Standard has written that same-sex marriage would eventually lead to the legalization of polygamy and polyamory, or group marriage, in the United States.
The funding of the amendment referendum campaigns has been an issue of great dispute. Both judges and the IRS have ruled that it is either questionable or illegal for campaign contributions to be shielded by anonymity. In February 2012, the National Organization for Marriage vowed to spend in Washington legislative races to defeat the Republican state senators who voted for same-sex marriage.
United States case law regarding the spousal rights of gay or bisexual persons:
- Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) (upholding a Minnesota law defining marriage)
- Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973) (upholding a Kentucky law defining marriage)
- Singer v. Hara, 522 P.2d 1187 (Wash. App. 1974)
- Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (affirming that same-sex marriage does not make one a "spouse" under the Immigration and Nationality Act)
- De Santo v. Barnsley, 476 A.2d 952 (Pa. Super. Ct. 1984)
- In re Estate of Cooper, 564 N.Y.S.2d 684 (N.Y. Fam. Ct. 1990)
- Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995)
- Storrs v. Holcomb, 645 N.Y.S.2d 286 (N.Y. App. Div. 1996) (New York does not recognize or authorize same-sex marriage) (this ruling has since been changed, New York does recognize same-sex marriages performed in other states)
- In re Estate of Hall, 707 N.E.2d 201, 206 (Ill. App. Ct. 1998) (no same sex marriage will be recognized; petitioner claiming existing same-sex marriage was not in a marriage recognized by law)
- Baker v. State, 170 Vt. 194; 744 A.2d 864 (Vt. 1999) (Common Benefits Clause of the state constitution requires that same-sex couples be granted the same legal rights as married persons)
- Rosengarten v. Downes, 806 A.2d 1066 (Conn. 2002) (state will not recognize Vermont civil union)
- Burns v. Burns, 560 S.E.2d 47 (Ga. Ct. App. 2002) (recognizing marriage as between one man and one woman)
- Frandsen v. County of Brevard, 828 So. 2d 386 (Fla. 2002) (State constitution will not be construed to recognize same-sex marriage; sex classifications not subject to strict scrutiny under Florida constitution)
- In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002) (a post-op male-to-female transgendered person may not marry a male, because this person is still a male in the eyes of the law, and marriage in Kansas is recognized only between a man and a woman)
- Standhardt v. Superior Court ex rel. County of Maricopa, 77 P.3d 451 (Ariz. Ct. App. 2003) (no state constitution right to same-sex marriage)
- Morrison v. Sadler, 2003 WL 23119998 (Ind. Super. Ct. 2003) (Indiana's Defense of Marriage Act is found valid)
- Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003) (denial of marriage licenses to same-sex couples violated provisions of the state constitution guaranteeing individual liberty and equality, and was not rationally related to a legitimate state interest.)
- Lewis v. Harris, 908 A.2d 196 (N.J. 2006) (New Jersey is required to extend all rights and responsibilities of marriage to same-sex couples, but prohibiting same-sex marriage does not violate the state constitution; legislature given 180 days from October 25, 2006 to amend the marriage laws or create a "parallel structure.")
- Andersen v. King County, 138 P.3d 963 (Wash. 2006) (Washington's Defense of Marriage Act does not violate the state constitution)
- Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) (New York's marriage statutes do not permit same-sex marriage and are not unconstitutional).
- Conaway v. Deane, 932 A.2d 571 (Md. 2007) (upholding state law defining marriage as between a "man" and a "woman,")
- Martinez v. County of Monroe, 850 N.Y.S.2d 740 (N.Y. App. Div. 2008) (The court ruled unanimously that because New York legally recognizes out-of-state marriages of opposite-sex couples, it must do the same for same-sex couples. The county is seeking leave to appeal the decision.)
- In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (The court ruled that limiting marriage to opposite-sex couples is invalid under the equal protection clause of the California Constitution, and that full marriage rights, not merely domestic partnership, must be offered to same-sex couples.)
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- "Fix the Social Security discrepancy DOMA left behind", The Washington Post, May 9, 2014.
- "DOL Issues Final Rule Amending FMLA Definition of "Spouse" to Include Same-Sex Marriages", Sheppard Mullin Richter & Hampton LLP, February 27, 2015. Retrieved on February 28, 2015.
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- Same-sex marriage in the United States public opinion
- Same-sex marriage status in the United States by state
- Same-sex marriage legislation in the United States
- Same-sex marriage legislation in the United States by state
- Same-sex union in the United States
- List of benefits of marriage in the United States
- Defense of Marriage Act
- Marriage Protection Act
- Defense of marriage amendment
- Federal Marriage Amendment
- Domestic partnerships in the United States
- Freedom to Marry Coalition
A Union In Wait (documentary)
- Where Can Gays Wed? Newsweek's Interactive Map on same-sex marriage legislation in the United States, June 2008 by Marc Bain, Alicia Parlapiano and Xaquín G.V.
- LA Weekly feature, "California Supreme Court Set to Consider Gay Marriage," Feb. 2008 by Matthew Fleischer
- PollingReport.com Law and Civil Rights compendium
- American Courts on Marriage: Is Marriage Discriminatory? 1998-2008, Joshua Baker, Institute for Marriage and Public Policy, May 2008.
Supporting same-sex marriage
- Human Rights Campaign
- Marriage Equality USA
- Freedom to Marry
- National Organization for Women: Same-Sex Marriage is a Feminist Issue
- American Civil Liberties Union
- The Democratic Party GLBT Community
- Gay and Lesbian Advocates and Defenders (GLAD)
Opposing Same-Sex Marriage
- Alliance Defense Fund
- Alliance for Marriage
- American Family Association
- Caucus for America
- Concerned Women for America
- Family Research Council
- Focus on the Family
- Liberty Counsel
- National Organization for Marriage
- Renew America
Same-sex unions in the United States
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