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Recognition of Same-Sex Marriage

While DOMA has effectively blocked the implementation of same-sex marriage at the federal level, there have been several states that have taken independent legislative and judicial action regarding same-sex marriage. The laws passed at the state level have typically adopted one of two stances towards same-sex marriage: either imposing additional restrictions on the legal recognition of same-sex couples or specifically allowing the state to recognize same-sex marriages.

Legalizing Same-Sex Marriage

Massachusetts became the first US state to enact same-sex marriage in November 2003 when the Massachusetts Supreme Court rejected a statewide ban on same-sex marriage in Goodridge v. Department of Public Health. Connecticut followed suit in October 2008 when the Connecticut Supreme Court ruled that there is an inherent requirement that same-sex couples be allowed to marry in the Connecticut Constitution. The court's ruling was officially codified by the Connecticut General Assembly in April 2009. The Supreme Court of Iowa issued a similar ruling in April 2009 that struck down a ban on same-sex marriage as contrary to the Iowa Constitution.

Vermont became the first state to legalize same-sex marriage through legislative action in April 2009 when the Vermont legislature overrode a veto from Governor Jim Douglas in March 2009. Additionally, New Hampshire Governor John Lynch signed legislation allowing same-sex marriages to be performed in the state in June 2009, although it included a provision that religious organizations and their employees would not be required to participate in the services or officially recognize civil unions. The Council of the District of Columbia similarly approved a bill allowing same-sex marriages to be performed in the District of Columbia in December 2009. The US Supreme Court subsequently refused to block the legislation in March 2010.

New York adopted permissive same-sex marriage legislation in June 2011 when Governor Andrew Cuomo signed the Marriage Equality Act into law. However, both the New Yorkers for Constitutional Freedoms (NYCF) and Torah Jews for Decency (TJD) filed complaints challenging the law in July 2011. JURIST Guest Columnist Sarah Warbelow has posited that the passage of permissive same-sex marriage legislation in New York coincided with changing national attitudes about same-sex marriage:

New York's "conscience vote" was a refreshing change. In recent months and years, marriage bills in other states have fallen victim to party line votes, often with little to no substantive discussion ... New York is the largest state to allow same-sex couples to wed, and passage of the bill effectively doubled the number of Americans who live in a place where same-sex marriage is legal (about 11 percent of the total population) ... Passage of the bill coincided with recent changes in public sentiment about same-sex marriage, both in New York and nationally. In New York, just 37 percent of the state's residents supported allowing same-sex couples to wed in 2004, but [in 2011] polls showed that support jumped to 58 percent. Nationally, a Gallup poll released in May showed that for the first time, a majority of Americans (53 percent) support same-sex marriage.
Despite changing public opinions, JURIST Guest Columnist Ashley Dunn has argued that the New York laws demonstrate that discrimination against same-sex couples remains in the form of religious exemptions:
There has been an increasing trend of including ever-expanding religious exemptions within marriage equality and civil union laws, and New York is no exception. Exempting clergy from solemnizing same-sex marriages is harmless, albeit redundant. However, these new religious exemptions propose to do far more--perhaps more than people tend to realize. The language of New York's marriage equality legislation provides that religiously affiliated and benevolent organizations may take "such action as is calculated ... to promote the religious principles for which it is established or maintained." In essence, the law enshrines discrimination. While it is unclear exactly what the ramifications of such a provision will be, there is concern that it allows religious organizations to choose not to recognize the legal marriages of same-sex couples. For example, a Catholic hospital could choose not to allow a woman to make medical decisions on behalf of her wife, and a Catholic university could deny family medical leave to gay employees."
However, JURIST Guest Columnist William Duncan has argued that, regardless of whether same-sex marriage is a beneficial public policy, the New York legislation sets a bad precedent and is possibly unconstitutional under the New York Constitution due to violations of procedural requirements:
At the very least, the procedure for passage of same-sex marriage in the New York Senate contravenes the principles underlying the constitutional provisions noted above. Those provisions attempt to secure an open, transparent and deliberative process. By contrast, the procedure followed to get the same-sex marriage bill through as quickly as possible was characterized by secrecy, curtailed discussion and top-down control. The important changes to the bill's religious exemption were not only not explored at any length, but the attempt of Senator Ruben Diaz to ask questions about these provisions (which had only become public a few hours before) was completely foreclosed ... However one comes down on whether same-sex marriage is good public policy, its passage in New York clearly sets a bad precedent, perhaps rendering its enactment illegal.
Following the Ninth Circuit's ruling against Proposition 8, the Washington House of Representatives approved a bill to legalize same-sex marriage, which Governor Christine Gregoire signed into law in February 2012. However, the advocacy group Preserve Marriage Washington presented over 200,000 referendum signatures on June 6, 2012, seeking to overturn the legislation, preventing Washington's gay marriage law from taking effect. The referendum will appear on the ballot in November 2012.

Bills legalizing same-sex marriage also quickly passed through the New Jersey Senate and Assembly before the legislation was vetoed by Governor Chris Christie, who argued that the proper way to legally enshrine same-sex marriage would be through a voter referendum rather than through the state legislature. Four days later, the New Jersey Superior Court reinstated a single count [PDF] in a marriage equality lawsuit against the state's civil union system. The order reversed the court's earlier decision to dismiss the lawsuit on a motion by Attorney General Jeffrey Chiesa. After a contentious legal battle, the New Jersey Supreme Court ruled in October 2013 that the state must begin recognizing same-sex marriages.

Maryland also had similar, pending legislation that passed through the House of Delegates, and cross-filed legislation was approved by the Maryland Senate. Maryland officially became the eighth state to legalize same-sex marriage on March 1, 2012. Additionally, the Maryland Court of Appeals has also recently granted same-sex divorce to a lesbian couple married in California.

In July 2009, Washington, DC, began recognizing same-sex marriages that were performed in other states or jurisdictions through the Jury and Marriage Amendment Act of 2009. Shortly after the passage of this act, the Catholic Archdiocese of Washington, DC, pledged to cease its support of social services, citing the need to defend its beliefs. Shortly after, in December 2009, the Council for the District of Columbia passed the Religious Freedom and Civil Marriage Equality Amendment Act of 2009, which legalized same-sex marriage in the district. Attempts to block the act from taking effect occurred in the District of Columbia Court of Appeals and the US Supreme Court, but both failed in their efforts, and the District of Columbia began issuing marriage licenses to same-sex couples.

In April 2013, the Rhode Island Senate passed a bill legalizing same-sex marriage in that state, which Governor Lincoln Chafee signed into law in May 2013. Later that same month, Delaware Governor Jack Markell signed a bill into law legalizing same-sex marriage in that state, and the Minnesota House of Representatives and Senate each approved a bill to legalize same-sex marriage. Governor Mark Dayton signed the bill, making Minnesota the twelfth US state to recognize same-sex marriages. In November 2013, the state legislatures of Hawaii and Illinois passed bills allowing for same-sex marriages. The bills are expected to be signed by their respective governors later in the month.

Prohibiting Same-Sex Marriage

States have typically taken two main types of legislative actions to prevent same-sex marriage. Some states have adopted amendments modeled after DOMA to their constitutions which define marriage as existing only between a man and a woman. Constitutional amendments banning marriage and relationship recognition for same-sex couples have been adopted in nineteen states: Alabama, Arkansas, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia and Wisconsin. Additionally, Alaska, Arizona, Colorado, Mississippi, Missouri, Montana, Nevada, Oregon and Tennessee have passed constitutional amendments that ban marriage for same-sex couples. Additionally, states such as Indiana have amended their constitution to ban same-sex marriage or any "substantially similar" designations relating to homosexual partnerships.

The passage of such disparate laws at the state level has led to widespread debate over whether inherent guarantees in state constitutions conflicts with same-sex marriage bans. JURIST Guest Columnist Betsy Griffing has argued that, despite a constitutional amendment banning same-sex marriage in Montana, the equal protection guarantees of the state constitution and Montana Supreme Court precedent require some form of legal recognition for same-sex couples:

The right to choose a life partner and protect a family relationship is integral to the express right of privacy contained in the Montana Constitution. That right of privacy includes the right to substantive protections which, at the very least, require the state take some affirmative action to acknowledge and support the domestic partnership or family unit. The express right of privacy, coupled with the right to human dignity provision in the Montana Constitution, forms the basis for legal recognition of same-sex couples who are similarly situated to married couples ... Along with these progressive state constitutional provisions, Montana has a history of recognizing that same-sex relationships are entitled to a modicum of protection under the equal protection and privacy clauses.
Other states, such as Wyoming, have passed legislation that prohibit state recognition of any same-sex marriages and civil unions performed in other jurisdictions. Some states have chosen to pass both statutes and constitutional amendments banning same-sex marriage and domestic partnerships. In May 2012, voters in North Carolina passed Amendment 1, constitutional amendment [PDF] that bans same-sex marriage and any type of same-sex domestic union in the state, including domestic partnerships and civil unions.

In the same legal vein, national gay rights advocacy group Lambda Legal filed suit in the US District Court for the District of Nevada in April 2012 on behalf of eight same-sex couples claiming [PDF] that Nevada's statutory and constitutional bans on same-sex marriage violates their rights under the Fourteenth Amendment of the US Constitution.

Underscoring the volatile political nature of the debate over same-sex marriage, the controversy has resulted in public opposition to efforts to legalize same-sex marriage in state legislatures. For example, Maine Governor John Baldacci signed a bill allowing same-sex marriage in May 2009. However, Maine voters vetoed the legislation in a ballot initiative in November 2009.

Civil Unions

Civil unions are legal partnerships that have been used to grant same-sex couples corollary rights to married, heterosexual couples. The exact privileges of civil unions, or civil partnerships, vary greatly between states. While touted as a means of granting equivalent benefits to same-sex couples, civil unions have also been criticized as representing either an inferior alternative to full marriage rights to advocates, or an implicit sanction of same-sex marriage to opponents. Civil unions were first enacted in Denmark in April 1989.

DOMA has prevented civil unions from being adopted at the federal level, but US states have enacted legislation individually regarding civil unions. The first US state to recognize civil unions was Vermont in April 2000. Several other states have passed similar legislation to recognize civil unions and domestic partnerships — including New Jersey, Delaware, Hawaii, Illinois, Rhode Island, Washington and New Hampshire. Additionally, other states have adopted domestic partnership laws that are roughly equivalent to civil unions, such as Oregon and California.

While Rhode Island allowed the performance of only civil unions within the state, Governor Chafee of Rhode Island signed an executive order that recognizes same-sex marriages performed out of state. Illinois is now facing legal challenges despite its recognition of civil unions, which twenty-five gay and lesbian couples claim does not go far enough. Illinois Attorney General Lisa Madigan subsequently filed notice in support of the plaintiffs' challenge to the state's same-sex marriage ban. Cook County State Attorney Anita Alvarez also argued in the case that the Illinois ban on same-sex marriage contravenes the state's constitution. In February 2013, the Illinois Senate passed a bill which would lift the ban on same-sex marriages in the state. Colorado Governor John Hickenlooper signed a bill legalizing civil unions in that state in March 2013.

International Recognition and Bans of Same-Sex Marriage

Twelve countries fully recognize and perform same-sex marriages. Western European and South American countries are the vanguards of legislation to legalize same-sex marriage, whereas many Asian and African countries have used legislation to ban the practice and impose harsh penalties ranging from imprisonment to capital punishment. Sharia law explicitly forbids homosexual activity, but the severity of punishment and application is contingent upon each individual Muslim country and the school of Islamic jurisprudence it follows. The United Kingdom currently recognizes civil unions, and the House of Commons has approved same-sex marriage with legislation awaiting approval from the House of Lords. French President Francois Hollande signed legislation legalizing same-sex marriage in May 2013, in spite of vehement protest.

Approximately 20 countries allow for civil unions instead. Israel recognizes but does not perform same-sex marriages and Mexico and Brazil perform same-sex marriage in most, but not all, jurisdictions. Same-sex marriage legalization has occurred mostly in Europe, but Uruguay, Argentina, Canada and South Africa also recognize and perform same-sex marriages. The European nations are the Netherlands, Belgium, Spain, Norway, Iceland, Portugal, Sweden and Denmark. The Netherlands was the first country to permit it, passing legislation in December 2000, and Belgium became the second country to approve it three years later. New Zealand's legislature broke into a national song after approving same-sex marriage in April 2013. Legislatures in multiple countries, including Germany and Scotland, have been debating expanding marriage to include LGBT couples, and the European Union (EU) announced its goal in November 2010 for all member nations to legalize same-sex marriage.




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