Definitions

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Same-sex marriage in the United States

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 three states, California, Massachusetts and Connecticut. 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

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 marriages have been recognized in Massachusetts since May 17, 2004, in California since May 15, 2008, and in Connecticut since October 10, 2008. Same-sex marriage only has effect at the state level as the U.S. federal government does not recognize same-sex marriages as marriages under federal law as a consequence of the Defense of Marriage Act.

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. 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, but the court denied the requests on June 4, 2008. In addition, the court clarified that its initial ruling was to take effect at 5:00 p.m. on June 16, 2008. 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.

The court ruling in California gave rise to considerable opposition locally and nationally. 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.

In addition to California, Florida has placed a constitutional ban on both same-sex marriage and civil unions on the November 2008 ballot. 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. 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.

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.

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.

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. Currently, same-sex couples are suing for the right to marry in Iowa.

On October 10, 2008, the Supreme Court of Connecticut ruled that civil unions were discriminatory and the state must allow same-sex marriage under the equal protection clause of its constitution.

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.

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, France, Aruba, Netherlands Antilles and the states of New Mexico, New York and Rhode Island.

Debate

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, the Roman Catholic Church, and the Orthodox branch of Judaism 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, and the national Republican Party.

Opponents of same-sex marriage argue that same-sex relationships are not marriages, that same-sex marriage is contrary to the best interests of children because it deprives children of either a mother or a father, that legalization of same-sex marriage will open the door for the legalization of polygamy, and that legalization of same-sex marriage would erode religious freedoms. Other opponents of same-sex marriage hold that same-sex marriage is contrary to God's will, that it is unnatural, that it encourages unhealthy behavior, 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.

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.

At least 41 states have statutes and/or constitutional provisions that prohibit same-sex marriage.

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.

Additionally, in 2006 the mayors of several large cities such as Atlanta, Boston, Chicago, Los Angeles, New York City, Salt Lake City, San Francisco, and Seattle 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, former Vice President Al Gore, and Massachusetts Senator Ted Kennedy.

Several political parties such as the Communist Party USA, U.S. Green Party, the Socialist Party USA, and several state Democratic Parties, including the California Democratic Party, the Iowa Democratic Party, the Maine Democratic Party, the Massachusetts Democratic Party, and the Washington State Democratic Party 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, and President George W. Bush.

Popular opinion

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. )
  • 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.)

See also

In general

In the United States

References

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.

External links

Supporting same-sex marriage

Opposing same-sex marriage

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