Same-sex marriage in the United States
From Wikipedia, the free encyclopedia
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 recognized on the state level by two states, California and Massachusetts. 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.
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[edit] Legal issues
[edit] 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 General Accounting 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.[citation needed]
[edit] State law
Massachusetts has recognized same-sex marriage since 2004, and California since May 15, 2008, though this only affects state law; the U.S. federal government does not recognize same-sex marriages in Massachusetts or California as being marriages under federal law, by means of the Defense of Marriage Act.
Connecticut, 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 and Washington 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.
On May 15, 2008 the Supreme Court of California ruled that excluding same-sex couples from marriage is unconstitutional, effectively creating same-sex marriage in California.[1][2] 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 61%-39%) in a 4-3 ruling, written by Chief Justice Ronald George). The Advocates for Faith and Freedom and the Alliance Defense Fund, among other things, asked for a stay of the ruling,[3] but the court denied the requests on June 4, 2008.[4][5] In addition, the court clarified that its initial ruling was to take effect at 5:00 p.m. on June 16, 2008.[4] In addition, a Field Poll conducted in late May reported that "51% of registered voters in the state favored the right of same-sex couples to marry, with 42% opposed."[6]
The court ruling in California gave rise to considerable opposition locally and nationally.[7] Same-sex marriage opponents announced, furthermore, that they gathered 1 million signatures to place a constitutional amendment on the November ballot to define marriage as between a man and woman, to effectively annul the decision.[8]
In addition to California, Florida has placed a constitutional ban on both same-sex marriage and civil unions on the November 2008 ballot.[9]. A measure to place a constitutional ban on same-sex marriage was voted on in Arizona in late June, but did not pass the state Senate.[10] A revote was taken a few weeks later, passing with the minimum number of votes required to place the measure to ban same-sex marriage on the ballot in November, making Arizona the third state to place such a ballot this year.[11]
Some states that legally recognize same-sex relationships also recognize similar relationships contracted in other states, though those relationships are not recognized in states without such legal recognition.
In contrast, twenty-six 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. Forty-three states have statutes restricting 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.[citation needed]
Opponents of same-sex marriage have attempted to prevent individual states from recognizing such 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.[12]
On August 30, 2007, Iowa Judge Robert Hanson temporarily annulled a law allowing marriage only between men and women before placing a stay the following day on his own ruling.[13]
Currently, same-sex couples are suing for the right to marry in Connecticut and Iowa.[14][15]
[edit] 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.[citation needed]
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.
[edit] Debate
[edit] Opposition
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,[16][17] the Roman Catholic Church,[18][19] and the Orthodox branch of Judaism[20][21] 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[22], and the national Republican Party[23]. Opponents of same-sex marriage argue that same-sex relationships are not marriages,[24] that same-sex marriage is contrary to the best interests of children because it deprives children of either a mother or a father,[25] that legalization of same-sex marriage will open the door for the legalization of polygamy,[26] and that legalization of same-sex marriage would erode religious freedoms.[27] Other opponents of same-sex marriage hold that same-sex marriage is contrary to God's will,[28][29] that it is unnatural,[30] that it encourages unhealthy behavior,[31] and that it harms the family structure of society. Still others argue that same-sex marriage would encourage individuals to act upon homosexual urges, when such individuals ought to instead seek help to overcome the temptation toward homosexual behavior.[29]
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 in that same-sex marriage has detached procreation from marriage in the Dutch mind and would likely do the same in the United States.
...the American media are correct to report that the majority of Dutch citizens have accepted the innovation [same-sex marriage]. The press has simply missed the meaning of that public shift. Broad Dutch acceptance of same-sex marriage means that marriage as an institution has been detached from the public mind. That is why the practice of parental cohabitation has grown so quickly in the Netherlands. By the same token, the shoulder shrug that followed the triple wedding [polyamory] story shows that legalized group marriage in the Netherlands is a real possibility.[32]
At least 41 states have statutes and/or constitutional provisions that prohibit same-sex marriage.[33]
[edit] Support
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 constitutes "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."[34]
Additionally, in 2006 the mayors of several large cities such as Atlanta,[citation needed] Boston,[citation needed] Chicago,[citation needed] Los Angeles,[citation needed] New York City,[citation needed] Salt Lake City,[citation needed] San Francisco,[citation needed] and Seattle[citation needed] 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, Ohio Congressman Dennis Kucinich, former Vice President Al Gore, and Massachusetts Senator Ted Kennedy.
Several political parties such as the Communist Party USA,[35] U.S. Green Party, the Socialist Party USA,[36] and several state Democratic Parties, including the California Democratic Party,[37] the Iowa Democratic Party,[38] the Maine Democratic Party,[39] the Massachusetts Democratic Party,[40] and the Washington State Democratic Party[41] also support gay marriage.
[edit] 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,[citation needed] Connecticut,[citation needed] New Mexico,[citation needed] Oregon,[citation needed] and Washington,[citation needed] the national Democratic Party,[42] and President George W. Bush.[43][44][45]
[edit] Popular opinion
- Further information: Same-sex marriage in the United States public opinion
[edit] Case law
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.[1])
- 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.)
[edit] See also
- A Union In Wait (documentary)
[edit] In general
[edit] In the United States
- 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 unions 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
[edit] References
- ^ California same-sex marriage ban struck down
- ^ Mintz, Howard (15 May 2008). "California Supreme Court legalizes same-sex marriage" (in en), Mercury News. Retrieved on 2008-05-15.
- ^ California's top court legalizes gay marriage
- ^ a b "California Supreme Court Denies Rehearing and Stay in Marriage Cases" (PDF) (2008-06-04). Retrieved on 2008-06-04.
- ^ latimes.com, California Supreme Court refuses to delay gay marriage
- ^ nytimes.com Court Won’t Delay Same-Sex Marriages
- ^ Statement by the Catholic bishops of CA; Patrick J. Buchanan, “Post-Christian America: Marriage ruling another streetlight on our ‘darkening path to perdition,”
- ^ nytimes.com, Gay Couples Rejoice at Ruling
- ^ Gay marriage on ballot Tampabay.com
- ^ Ban on same-sex marriage fails vote AZCentral
- ^ Same-sex marriage issue contentious for legislators The Arizona Republic
- ^ Senate blocks same-sex marriage ban, CNN, June 7, 2006, (Accessed July 5, 2006)
- ^ BBC NEWS, Iowa judge approves gay weddings
- ^ Gay marriage decisions ripe in Calif., Conn., Stateline.org
- ^ Freedom to Marry | Maps, Freedom to Marry
- ^ Home | National Organization for Marriage
- ^ Conservative Party of New York State
- ^ New York State Catholic Conference - The Official Public Policy Voice of the Catholic Conference of the Empire State
- ^ Catholic League: For Religious and Civil Rights
- ^ Jewish Law - LawPolicy ("Agudath Israel of America - Policy Paper")
- ^ Caucus For America | Battling for the Soul of America
- ^ name="orthjew">Same-Sex Marriage, Rabbinical Council of America. (Accessed July 5, 2006)
- ^ "Republican Party 2004 Platform" (PDF).
- ^ http://www.savemarriageny.org/The%20Case%20Against%20Same-Sex%20Marriage%20and%20Civil%20Unions.pdf
- ^ NYFCF
- ^ http://www.nationformarriage.org/atf/cf/%7B39D8B5C1-F9FE-48C0-ABE6-1029BA77854C%7D/CatholicEnglish.pdf
- ^ Banned in Boston
- ^ "The Religious Right and Anti-Gay Speech: Messengers of Love or Purveyors of Hate?". Matthew Shepard Online Resources.
- ^ a b http://www.apacny.net/The%20Christian%20Case%20Against%20Same-Sex%20Marriage.pdf
- ^ "Anti-Gay Backlashes Are on 3 States' Ballots". The New York Times (1992-10-04). Retrieved on 2008-06-06.
- ^ BalancedPolitics.org - Same Sex Marriages (Pros & Cons, Arguments For and Against)
- ^ "Stanley Kurtz Bangs Drum About Polyamory and Bisexuality". Poly Greens News (2006-01-07).
- ^ ABC News: In First, N.Y. Judge Allows Gay Divorce
- ^ http://www.economist.com/world/na/PrinterFriendly.cfm?story_id=9441511
- ^ "Election Platform 2004". Communist Party USA. Retrieved on 2006-07-05.
- ^ "Socialist Party Platform: Human Rights". Socialist Party USA. Retrieved on 2006-07-05.
- ^ ""California Democrats Present Our Blueprint for the Golden State"" (PDF). California Democratic Party. Retrieved on 2008-05-15.
- ^ "Iowa Democratic Party Platform". Iowa Democratic Party. Retrieved on 2008-03-17.
- ^ "2006 MDP Platform". Maine Democratic Party. Retrieved on 2008-03-17.
- ^ "Massachusetts Democratic Party Platform". Massachusetts Democratic Party. Retrieved on 2008-03-17.
- ^ "Platform of the Democratic Party of Washington" (PDF). Washington State Democratic Convention. Retrieved on 2008-03-17.
- ^ "Democratic Party 2004 Platform" (PDF). see page 42
- ^ Hunter, Melanie (27 October 2004). "Bush Tolerates Civil Unions, Thinks States Should Decide", Cybercast News Service. Retrieved on 2008-03-07.
- ^ Bumiller, Elisabeth (26 October 2004). "Bush Says His Party Is Wrong to Oppose Gay Civil Unions", The New York Times. Retrieved on 2008-03-07.
- ^ "Bush's gay union stance irks conservatives", Associated Press (26 October 2004). Retrieved on 2008-03-07.
[edit] Bibliography
- Wolfson, Evan (2004). Why Marriage Matters: America, Equality, and Gay People's Right to Marry. New York: Simon & Schuster. ISBN 0-7432-6459-2.
- Chauncey, George (2004). Why Marriage?: The History Shaping Today's Debate over Gay Equality. New York: Basic Books. ISBN 0-465-00957-3.
- Dobson, James C. (2004). Marriage Under Fire. Sisters, Or.: Multnomah. ISBN 1-59052-431-4.
[edit] External links
- 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.
[edit] 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)
[edit] 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
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