An Overview of Same Sex Marriage in the United States



Same-sex couples have enjoyed victories in this conflict with increasing frequency, particularly in the last ten years.  What follows is a list of the states allowing the formation of same sex marriages and a summary of how the right evolved.



On December 20, 1999, the Vermont Supreme Court, in the case Baker v. State, (744 A.2d 864) held the denial of marriage benefits to same-sex persons violated the state's common benefits clause, a principle that is older than but similar to federal equal protection.  Chief Justice Jeffrey L. Amestoy, writing for a unanimous court, focused on the "legal benefits and protections flowing from a marriage license." He concluded the denial of these rights by the state must be "grounded on public concerns of sufficient weight, cogency and authority that the justice of the deprivation cannot seriously be questioned."


The state's justification for limiting marriage to heterosexual couples was to promote the link between marriage and child rearing for the best interests of children.  Chief Judge Amestoy dismissed this justification, arguing heterosexuals frequently marry and do not have children.  Correspondingly, in a progressive argument, the decision recognized "that increasing numbers of same-sex couples are employing increasingly efficient assisted-reproductive techniques to conceive and raise children" So, to limit marriage to childless heterosexuals and deny it to same sex couples with children has no logical relation to the government's purported justification.  Concluding the denial of marriage to same sex couples unconstitutional, the court left the remedy to the legislature.


The Vermont legislature narrowly passed a bill allowing same-sex couples to form civil unions with all of the rights of a married couple in Vermont as of 2000.  Of course, a Vermont civil union is not recognized by federal law because of DOMA or in the multitude of states that ban same-sex marriage.  The Vermont legislature recently legalized same-sex marriage, thus removing the second class status of civil unions, effective as of September 2009. 


The significance of the decision in Baker v. State and the subsequent legislative solution must not be understated.  The Vermont civil union represented the first state-wide relationship which equated to marriage between same-sex couples in all but name.   It was an historic victory in the LGBT movement.



Additional states have since recognized same-sex marriages.  In 2004, Massachusetts, became the first state to allow members of the same-sex to marry.  The Supreme Judicial Court of Massachusetts (the highest court in the state) in the 2003 case Goodridge v. Department of Public Health (798 N.E. 2d 941) held the state had "no rational reason" to deny marriage to same sex couples. Similar to Vermont, the court argued "the benefits accessible only by way of a marriage license are enormous, touching nearly every aspect of life and death."  After listing a few of these rights, and dismissing the state's attempted justifications, the court concluded limiting marriage to opposite sex couples "violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution." The court gave the Massachusetts legislature 180 days to act in accordance with the decision.   Ultimately, the legislature failed to act and Governor Mitt Romney ordered town clerks to issue marriage licenses to same sex couples.


Notably, Massachusetts was the first state to break down the barrier which prevented same-sex couples to enter into a "marriage" in the United States as opposed to an alternately named relationship with all of the rights of marriage such as a civil union - a huge symbolic victory.



Connecticut, in the 2008 case Kerrigan v. Commissioner, (SC 17716) ruled denial of same-sex marriage violated the equal protection provisions in the Connecticut Constitution.  Similar to the Hawaii decision (Baehr v. Lewin) homosexuals were treated as a quasi-suspect class, meaning a group that endures discrimination and is stigmatized as a whole.  Courts will analyze laws that affect such groups with "heightened scrutiny."  Formerly in 2005, the Connecticut legislature passed a civil union law, similar to that passed in Vermont.  As a result of the Kerrigan case, Connecticut became the second state to allow same-sex couples to enter into a marriage.  In 2009, all marriage laws in the state of Connecticut were repealed by the legislature and amended to use gender neutral terms.  No new Connecticut civil unions shall be entered into as of October 2010.  Existing civil unions are automatically converted into marriages as of that date.



In 2009, the Iowa Supreme Court in Varnum v. Brien (763 N.W. 2d 862) declared the state's Defense of Marriage Act violated the equal protection clause of the state constitution. Once again, a form of heightened (or intermediate) scrutiny was applied to the marriage law based on the history of discrimination against homosexuals as a group. Significantly, the Iowa decision is the first where a state's mini-DOMA, restricting marriage to one man and one woman, was declared unconstitutional.  Thus, in 2009, Iowa became the third state and first state outside of New England to allow same-sex couples to enter into a marriage.

The courage in the face of great political risk exhibited by judges in reaching decisions such as Varnum v. Brien was evident in the 2010 elections in Iowa.  Three of the justices who took part in the historic decision declaring the Iowa state Mini-DOMA unconstitutional were removed from office after losing judicial retention elections.  The three justices, David Baker, Michael Streit and Marsha Ternus, were targeted by the National Organization for Marriage because of the stand they took defending the rights of same sex couples.



Civil Unions have been recognized in New Hampshire since 2007.   Based on recent legislation, as of January 1, 2010, same sex couples can enter into marriages in New Hampshire.  Additionally, all civil unions entered into in New Hampshire would be converted into marriages on January 1, 2011. 



In December of 2009, the District of Columbia City Council passed a bill to allow the formation of same sex marriages in the nation's capital.  A few days later, the bill was signed by Mayor Adrian Fenty. Under D.C. procedure, a period of 30 legislative days must pass for Congressional review before a bill becomes law.  The law went into effect on March 3, 2010, at the expiration of that review period.  A last minute challenge to the U.S. Supreme Court failed when Chief Justice John G. Roberts, Jr. refused to intervene.  The Chief Justice deferred to the City Council when it came to local matters in the District and believed the ultimate arbiter of the rights of same sex couples to marry in D.C. rested with the people, based on a ballot initiative.


Thus, five states and the District of Columbia allow same-sex couples to enter into marriages today.



Although same-sex marriages may be formed in five states and the District of Columbia these marriages are not recognized in the 41 states that have enacted mini-DOMAs or by the federal government pursuant to DOMA.


Mini-DOMAs were enacted through amendments to the state constitutions in 30 states, as the result of some form of referendum, ballot initiative or popular vote: 


ALABAMA (2006), ALASKA (1998), ARIZONA (2008), ARKANSAS (2008),  CALIFORNIA (2008) COLORADO (2006), FLORIDA (2008), GEORGIA (2004), HAWAII (1998), IDAHO (2006), KANSAS (2005), KENTUCKY (2004), LOUISIANA (2004), MICHIGAN (2004), MINNESOTA (2004), MISSISSIPPI (2004), MISSOURI (2004), MONTANA (2004), NEBRASKA (2000), NEVADA (2002), NORTH DAKOTA (2004), OHIO (2004), OKLAHOMA (2004), OREGON (2004), SOUTH CAROLINA (2006), SOUTH DAKOTA (2006), TENNESSEE (2006), TEXAS (2005), UTAH (2004), VIRGINIA (2006).


Mini-DOMAs were enacted through legislation in 11 states: 


DELAWARE (1996), ILLINOIS (1996), INDIANA (1997), MAINE (1997), MARYLAND (1973) NORTH CAROLINA (2006), PENNSYLVANIA (1996), WASHINGTON (1998), WEST VIRGINIA (2000), WISCONSIN (2006), WYOMING (1977).


The first state-wide votes amending state constitutions took place in Alaska and Hawaii in 1998.  In both cases, the amendments were in response to state supreme court decisions reviewing the constitutionality of the denial of same sex marriage.  A number of states have since copied the Alaska and Hawaii method and language.  The presidential election year of 2004 saw the most constitutional amendments passed in any one year (eleven states) due to the Republican strategy to mobilize the conservative wing of the party.  Some of the constitutional amendments allow for domestic partnerships or civil unions for same sex couples, while others ban any type of relationship, whether called marriage or something else.  Maryland and Wyoming are unique in that their legislation limiting marriage as between a man and woman was enacted in the 1970s.  Thus, the impetus for these laws may have been more definitional than discriminatory.




Four states are unable to achieve a critical mass of support to pass a mini-DOMA or recognize same sex marriage.  The conflicts in these states that remain in limbo are detailed below.



In 1973, the legislature of Maryland amended the state’s Family Law Section 2-201 to limit marriage only to a man and woman. The Maryland Court of Appeals, in the case Conaway v. Deane & Polyak, decided to uphold the statutory ban in 2004.  However, on February 24, 2010, the state’s Attorney General, Doug Gansler, issued an opinion directing all Maryland state agencies to recognize same sex marriages entered into in other jurisdictions.  So, although a same sex marriage cannot be formed, validly, in Maryland, sister state and foreign same sex marriages will be recognized. 



Since 2007, same sex couples have been allowed to enter into civil unions in the state of New Jersey based on a bill passed by the New Jersey Legislature and signed by Governor Jon Corzine the prior year. The legislation was in response to the New Jersey Supreme Court's 2006 decision Lewis v. Harris (188 N.J. 415) which held the denial of rights to same sex partners unconstitutional. The NJ Civil Union, similar to the earlier Vermont Civil Union, grants same sex partners the same state rights as a married heterosexual couple.  Additionally, same sex marriages entered into in other jurisdictions are treated as civil unions in New Jersey. 


A decade earlier this law would have been an historic victory. However, the same sex marriage victories in the United States have made civil unions seem like a form of second class citizenship for members of the LGBT community.  Indeed, the fight for full marriage equality continues.  In 2010, the New Jersey Legislature voted down a same sex marriage bill in the state.  Same sex marriage proponents will continue to push for either legislative or judicial satisfaction.



New Mexico law recognizes all marriages entered into in sister states and foreign jurisdictions.  There is no limitation on this recognition to only heterosexuals.  So, same sex marriages entered into in the five states and District of Columbia where they are legal, along with those entered into in foreign countries, such as Canada, are recognized in New Mexico.  Strangely, there is no law allowing the formation of same sex domestic partnerships, civil unions or marriages within the state.  All efforts to enact same sex marriage recognition have failed, to date.



The movement for same-sex rights in New York is one of the most strangely conflicted.  In 1989, the New York State Court of Appeals (the state's highest court) decided the case of Braschi v. Stahl Assoicates Co. (74 N.Y. 2d 201).  In Braschi, a same sex couple lived in a rent controlled apartment for ten years.  The tenant who was on the lease died and the landlord attempted to evict the surviving partner, arguing only a surviving spouse or other relative of the tenant was entitled to retain possession and the benefits of rent-control.  The Court of Appeals extended the term family to include same sex couples who hold themselves out as a family without any legally formed relationship.  Judge Titone, writing for the majority, held:

"In the context of eviction, a more realistic, and certainly equally valid, view of a family includes two adult lifetime partners whose relationship is long term and characterized by an emotional and financial commitment and interdependence."

The court used as proof of the relationship, the testimony of the families of each partner and the buildings door man who contended that the two partners were a family in their own right.  Significantly, New York was the first state to recognize same sex partners as a "family."  Future decisions restricted the historic Braschi decision only to recognition of familial relationships with regards to extending rent control rights.

In 2006, the New York Court of Appeals revisited the issue of same sex partners; in the case Hernandez v. Robles (7 NY 3d 338) the court reviewed whether it is unconstitutional to deny marriage to members of the same sex.  The facts are similar to those in all of the states; same sex partners apply for marriage licenses in various counties throughout the state and are denied solely because they are of the same sex.  The New York Court of Appeals refused to find a constitutional violation in this denial.  The court held that allowing members of the same sex to marry was a legislative decision.  Provided the legislature had a rational reason to refuse to recognize same sex marriage, it was constitutional.  The court found two rational reasons for the denial.  Specifically, the legislature could contend that opposite sex relationships were a more stable environment to raise children and that it is better for children to grow up with both a mother and a father.  The court distanced itself from these conclusions by stating the court could believe them.  The court concluded, "[i]n sum, there are rational grounds on which the Legislature could choose to restrict marriage to couples of opposite sex. Plaintiffs have not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals."

The story does not end with the Hernandez decision, however.  In May 2008, Governor Patterson issued a "directive" in which he instructed the administrative agencies in New York to recognize all out of state and foreign same sex marriages and civil unions.  The lower courts have recognized same sex marriages from other jurisdictions consistently, even prior to the Patterson directive.  In 2010, the New York Court of Appeals, in Debra H. v. Janice R (No. 47) recognized a Vermont Civil Union for the purpose of allowing a non-biological, non-adoptive parent to seek visitation.


Although the state assembly has enacted same sex marriage bills in 2007 and 2009, the bills failed in the state senate each time.  With the Court of Appeals seeming to give the most limited rights to same sex couples, and a state legislature in conflict, the future of same sex marriage in New York remains perpetually confused.



Since 2007, Rhode Island has recognized same sex marriages entered into in other jurisdictions, based on a state attorney general opinion.  As of yet, the attempts to pass legislation which would allow the formation of same sex marriage in the state have failed.