Some online publications such as WorldNetDaily and Baptist Press still follow the practice. Cliff Kincaid, editor of the conservative American media-watchdog group Accuracy in Media and president of an anti-U.N. group called America's Survival, agrees with this method, arguing that "marriage" is a legal status denied same-sex couples by most state governments. Same-sex marriage supporters argue that the use of scare quotes is an editorialization that implies inferiority, and point out that the quotes are even used when referring to same-sex marriages in states where such unions are legal.
Associated Press style, which professional journalists in the United States generally adopt, recommends the usages gay marriage and gay marriage amendment with no hyphen and no scare quotes.
The first recorded use of the word "marriage" for same-sex couples occurs during the Roman Empire. A number of marriages are recorded to have taken place during this period. In the year 342, the emperors Constantius and Constans declared same-sex marriage to be illegal.
Marriage, as defined by the civil law, is currently available to same-sex couples in six countries. The Netherlands was the first country to allow same-sex marriage in 2001. Same-sex marriages are also legal in Belgium, Canada, Norway, South Africa and Spain, along with three states in the United States, Massachusetts and recently California (for status in California see California Proposition 8 (2008)) and Connecticut. In 2005, Spain became the first country in the world to recognize same-sex marriage (including adoption rights) on equal terms and under the same law.
In 1996, the United States Congress passed the Defense of Marriage Act (DOMA) defining marriage as a union between a man and a woman amongst other stipulations. As of May 2007, twenty-six states have passed constitutional amendments explicitly barring the recognition of same-sex marriage., eighteen of which prohibit the legal recognition of any same-sex union. Nineteen additional states have legal statutes that define "marriage" as a union of two persons of the opposite-sex. The territory of Puerto Rico ratified a similar statute in 1998. Nonetheless, some states are beginning to offer legal recognition to same-sex couples, whether in the form of marriage or as civil unions or domestic partnerships.
The states of Vermont, New Jersey and New Hampshire offer civil unions. Also, California and Oregon have domestic partnership laws that grant all of the rights and responsibilities of marriage. Maine, Washington, Maryland, and the District of Columbia grant certain limited benefits through domestic partnerships, and Hawaii has reciprocal beneficiary laws.
At the federal level, Australia bans recognition of same-sex marriage, but the current federal Australian Labor Party government favours synchronised state and territory registered partnership legislation (as in Tasmania) although the Australian Capital Territory favours the introduction of civil unions with official ceremonies. By stark contrast, same-sex marriage in Canada was preserved when a proposed repeal bill failed at its first reading in 2006, while New Zealand's Parliament similarly heavily defeated a private members bill that would have prohibited same-sex marriage in New Zealand in December 2005. However, as far as current jurisprudence goes, New Zealand's Marriage Act 1955 still recognises only opposite-sex couples as marriageable (although it has also included transsexuals who have undergone reassignment surgery as the 'opposite sex' for these purposes, since Family Court and High Court of New Zealand decisions in 1995.
Israel's High Court of Justice ruled to recognize same-sex marriages performed in other countries, although it is still illegal to perform them within the country. A bill was raised in Knesset to rescind the Israeli High Court's ruling, but the Knesset has not advanced the bill since December 2006. (This makes the practice of same-sex marriage, as far as Israel is concerned, like the performance of a Reform or Conservative Jewish wedding.)
Canada, Spain and Norway are the only countries where the legal status of same-sex marriage is exactly the same as that of opposite-sex marriage, though South Africa is due to fully harmonize its marriage laws. Other nations all have requirements or restrictions that apply to same-sex marriage that do not apply to opposite-sex marriage.
The first same-sex union in modern history with government recognition was obtained in Denmark in 1989.
Civil unions, civil partnership, domestic partnership, unregistered partnership/unregistered co-habitation or registered partnerships offer varying amounts of the benefits of marriage and are available in: Andorra, Australia (except Commonwealth law), Colombia, Croatia, Czech Republic, Denmark, Finland, France, Germany, Hungary (unregistered co-habitation since 1996; registered partnership from 2009), Iceland, Israel, Luxembourg, New Zealand, Portugal, Slovenia, Sweden, Switzerland, the United Kingdom and Uruguay. They are also available in some parts of Argentina, Brazil (Rio Grande do Sul), Mexico (Federal District and Coahuila), the U.S. states of California, Connecticut, Hawaii, Maine, Maryland, New Hampshire, New Jersey, Oregon, Vermont, Washington, and the District of Columbia (Washington, D.C.).
In the United Kingdom, civil partnerships have identical legal status to a marriage, and partners gain all the same benefits and associated legal rights; ranging from tax exemptions and joint property rights, to next-of-kin status and shared parenting responsibilities. Partnership ceremonies are performed by a marriage registrar in exactly the same manner as a secular civil marriage. Civil unions in New Zealand are identical to British civil partnerships in their association with equivalent spousal rights and responsibilities to fully-fledged opposite-sex marriage.
Australia provides under all states, territories and two council areas either a registry system provided in; - Sydney, Melbourne, Tasmania and Victoria; or Unregistered partnership provided in; Queensland, South Australia, Northern Territory, Norfolk Island, Western Australia, Australian Capital Territory and New South Wales. However, Commonwealth law provisions and statutes prohibit the recognition of civil unions, civil partnerships and same-gender marriages; fifty-eight (58) Legislative Acts of the Commonwealth use the phrase 'member of the opposite sex'. However, Commonwealth law still recognises same-sex partner under "interdependancy relationship" for anti-terrorism legislation, migration of same-sex partner, private superannuation schemes and Federal military and ADF services only. In 2007 Grace Abrams and Fiona Power became Australia's first legally recognised same sex married couple after Grace Abrams had gender modification surgery and was later officially granted a passport with female status.
A registered partnership in Scandinavia is nearly equal to marriage, including legal adoption rights in Sweden and, since June, in Iceland as well. These partnership laws are short laws that state that wherever the word "marriage" appears in the country's law will now also be construed to mean "registered partnership" and wherever the word "spouse" appears will now also be construed to mean "registered partner" - thereby transferring the body of marriage laws onto same-sex couples in registered partnerships.
In some countries with legal recognition the actual benefits are minimal. Many people consider civil unions, even those which grant equal rights, inadequate, as they create a separate status, and think they should be replaced by gender-neutral marriage.
Despite their relative independence, few organizations currently recognise same-sex partnerships without condition. The Organization for Economic Co-operation and Development (OECD) and the agencies of the United Nations voluntarily discriminate between opposite-sex marriages and same-sex marriages, as well as discriminating between employees on the basis of nationality. These organizations recognize same-sex marriages only if the country of citizenship of the employees in question recognizes the marriage. In some cases, these organizations do offer a limited selection of the benefits normally provided to opposite-sex married couples to de facto partners or domestic partners of their staff, but even individuals who have entered into an opposite-sex civil union in their home country are not guaranteed full recognition of this union in all organizations. However, the World Bank does recognize domestic partners.
When sex is defined legally, it may be defined by any one of several criteria: the XY sex-determination system, the type of gonads, or the type of external sexual features. Consequently, both transsexuals and intersexed individuals may be legally categorized into confusing gray areas, and could be prohibited from marrying partners of the "opposite" sex or permitted to marry partners of the "same" sex due to arbitrary legal distinctions. This could result in long-term marriages, as well as recent same-sex marriages, being overturned.
An example of the problem with chromosomal definition would be a woman with Complete Androgen Insensitivity Syndrome (CAIS), who would have a 46,XY karyotype, which is typically male. Although she may have been legally registered as female on her birth certificate, been raised as a female her entire life, have engaged in heterosexual female relationships, and may even have married before the status of her condition was known, using the chromosomal definition of sex could prevent or annul the marriage of a woman with this condition to a man, and similarly allow her to legally marry another woman. These same issues were faced by the IOC to determine who qualified as a female for the women's competitions.
The problems of defining gender by the existence/non-existence of gonads or certain sexual features is complicated by the existence of surgical methods to alter these features. Although it has not been exhaustively stated by a court, it is possible that a court could find that if a person has their gonads removed (not limited to a sex-change but also for medical disorder, such as testicular cancer or removing sexual ambiguity), they would enter a sexual limbo status and fail to meet either set of criteria, thus excluding them from any allowance to marriage. This situation could easily occur through exclusionary findings by separate courts in a state that already does not recognize transsexual marriages to people of the same sex as their birth-sex, as in the case of Linda Kantaras vs. Michael Kantaras. Basing the distinction on genital appearance is complicated by available surgery converting typically male genitalia to typically female genitalia, which has advanced to the point where, even were a genital inspection necessary, many transgendered women would pass this inspection without question.
Requiring a surgical reassignment for definition of gender for the purpose of declaring a marriage valid comes with further problems. The female-to-male sex reassignment surgery is expensive and does not provide results as satisfactory as its counterpart; therefore many female-to-male transsexuals choose not to undergo this procedure. In a situation where genitalia legally defines gender and same-sex marriage is not permitted, the transsexual man would therefore only be allowed to legally marry another man if he wished to marry.
These complications are probably more likely than one would think at first glance; according to the highest estimates (Fausto-Sterling et al., 2000) perhaps 1 percent of live births exhibit some degree of sexual ambiguity, and between 0.1% and 0.2% of live births are ambiguous enough to become the subject of specialist medical attention, including sometimes involuntary surgery to address their sexual ambiguity.
In any legal jurisdiction where marriages are defined without distinction of a requirement of a male and female, these complications do not occur, and some legal jurisdictions may recognize a legal and official change of gender, which would allow one to satisfy the requirement of either "male" or "female" according to their gender-identity within their legal definition of marriage. Although some legal jurisdictions continue to only recognize the "immutable traits determined at birth." (Linda Kantaras vs. Michael Kantaras)
In the United Kingdom, recent legislation (Gender Recognition Act 2004) allows a person who has lived in their chosen gender for at least two years to receive a gender recognition certificate officially recognizing their new gender. Because in the UK marriage is for mixed-sex couples and civil partnership is for same-sex couples, the person must dissolve their marriage or civil partnership before they can get their gender recognition certificate. They are then free to enter into a civil partnership or a marriage again with their former wife, husband, or civil partner.
In countries with legal systems based on the Napoleonic codes, being legally recognized as one's transitioned gender may require conditions of infertility, where if a transsexual were ever found to have had a child, it would result in a reversal of a legal sex change and spontaneous annulment of the marriage if that country does not recognize same-sex marriages.
In the United States, transsexual and intersexual marriages typically run into the complications detailed above. As definitions and enforcement of marriage is defined by the state, these complications will vary from state to state. In Massachusetts no problem should arise in seeking to get a marriage, or enforcing that marriage, however marriage in states that have more prohibitive definitions, any marriage with a transsexual could face challenge in a court based on any number of criteria.
The controversy over recognition of same-sex unions as marriages is part of a larger controversy concerning the role of government in recognizing and regulating intimate relationships. While there are few instances of societies recognizing same-sex unions as marriage, the historical and anthropological record reveals a remarkable variety of treatment of same-sex unions ranging from sympathetic toleration to indifference to prohibition. Some opponents of same-sex marriage argue that same-sex relationships are not marriages, that legalization of same-sex marriage will open the door for the legalization of polygamy, that legalization of same-sex marriage would erode religious freedoms, and that same-sex marriage deprives children of either a mother or a father. On the other hand, a 2004 Statement by the American Anthropological Association states that there is no evidence that society needs to maintain "marriage as an exclusively heterosexual institution", and, further, that same-sex unions can "contribute to stable and humane societies. Further, some supporters of same-sex marriage take the view that the government should have no role in regulating personal relationships, while others argue that same-sex marriage would provide social benefits to same-sex couples.
The debate regarding same-sex marriage includes debate based upon social viewpoints as well as debate based on religious convictions, economic arguments, health-related concerns, and a variety of other issues.
Catholic opponents also argue that inclusion of same-sex unions within the definition of marriage would also evidence rejection of the idea that, in general, it is best that children be raised by their biological mother and father, and that it is the community's interest in ensuring the well-being of children that forms the basis for the government's licensure and involvement in marriage.
Conservatives and some moderate Christians further note that homosexuality goes directly against biblical teaching, and extend this to same-sex marriage. Some Biblical scholars interpret Genesis 19:5 as indicating that homosexual behavior led to the destruction of the ancient cities of Sodom and Gomorrah. Other passages interpreted as condemning homosexuality are Leviticus 18:22, Leviticus 20:13, and in the New Testament of the Bible, I Corinthians 6:8-10 and Romans 1:24-27. While these passages do not define the institution of marriage, Genesis 2:22-24 reads as follows: "Then the Lord God made a woman from the rib he had taken out of the man, and he brought her to the man. The man said, 'This is now bone of my bones and flesh of my flesh; she shall be called 'woman,' for she was taken out of man.' For this reason a man will leave his father and mother and be united to his wife, and they will become one flesh. This passage is referred to by Jesus in the New Testament Gospel of Matthew. Furthermore, many Christians hold the belief that Romans 1 proscribes all homosexual behavior, regardless of its relational context.
For some moderate and liberal Christians, the passage in Romans is seen as relating more to specific instances of Graeco-Roman temple sex acts and idolatrous worship and it is not intended to address contemporary homosexuality. Critics argue that this interpretation is not rooted in the Scriptural text, as nothing in the passage suggests that the commentary regarding homosexual behavior is directed solely at temple prostitution.
Some modern religions and denominations perform same-sex weddings. At the 1996 Unitarian Universalist General Assembly, delegates voted overwhelmingly that because of "the inherent worth and dignity of every person," same-sex couples should have the same freedom to marry that other couples have.
Research has found no major differences in parenting or child development between families headed by two mothers and other fatherless families. Like children raised by single mothers, children raised by two mothers perceived themselves to be less cognitively and physically competent than their peers from father-present families. Children without fathers had more interactions, severe disputes and depended more on their mothers. Sons showed more feminine but no less masculine characteristics of gender role behavior. Compared with young adults who had single mothers, men and women raised by two mothers were slightly more likely to consider the possibility of having a same-sex partner, and more of them had been involved in at least a brief same-sex relationship, but similar proportions identified themselves as homosexual.
Opponents of same-sex marriage also point to research which state the power and importance of the mother-child bond compared to children without a mother. David Blankenhorn argues that raising children in a same-sex marriage violates the 1989 U.N. Convention on the Rights of the Child that guarantees children the right to know and to be cared for by the two parents who brought them into this world.
A number of health and child-welfare organizations "support the parenting of children by lesbians and gay men, and condemn attempts to restrict competent, caring adults from serving as foster and/or adoptive parents." Such organizations include the Child Welfare League of America, North American Council on Adoptable Children, American Academy of Pediatrics, American Psychiatric Association, American Psychological Association, and the National Association of Social Workers. On July 28, 2004, the American Psychological Association's Council of Representatives adopted a resolution supporting legalization of same-sex civil marriages and opposes discrimination against lesbian and gay parents. Noted Harvard political philosopher and legal scholar John Rawls supported gay marriage and did not believe that it would undermine the welfare of children.
Internationally, the most comprehensive study to date on the effect of same-sex marriage / partnership on heterosexual marriage and divorce rates was conducted looking at over 15 years of data from the Scandinavian countries. The study (later part of a book), by researcher Darren Spedale, found that, 15 years after Denmark had granted same-sex couples the rights of marriage, rates of heterosexual marriage in those countries had gone up, and rates of heterosexual divorce had gone down - contradicting the concept that same-sex marriage would have a negative effect on traditional marriage.
A study on short-term same-sex marriages in Norway and Sweden found that divorce risks are higher in same-sex marriages than in opposite-sex marriages, and that unions of lesbians are considerably less stable, or more dynamic, than unions of gay men. The authors cited that this may be due to same-sex couples "non- involvement in joint parenthood", "lower exposure to normative pressure about the necessity of life-long unions" as well as differing motivations for getting married.
The dissent by Justice Martha Sosman in the decision of the Massachusetts high court that legalized same-sex marriage in that state makes a societal argument without specifying the harm that would occur from this change. Asserting the a priori importance of marriage as an institution, she questions whether the burden of proof that this would be harmless has been met. Her analysis can be seen as an example of precautionary principle, which states that if an action or policy might cause severe or irreversible harm to the public, in the absence of a scientific consensus that harm would not ensue, the burden of proof falls on those who would advocate taking the action.
The core meaning that marriage is the union of a man and a woman is essential in influencing the forming of the individual identity to an extent that common sense readily comprehends.
Based on research showing that, on average, children do best when raised by their biological parents in a low-conflict marriage, some argue that legal marriage is a way of encouraging monogamy and commitment by those who may create children through their sexual coupling. One prominent supporter of this viewpoint, syndicated columnist Maggie Gallagher, argues that "marriage as a universal social institution is grounded in certain universal features of human nature. When men and women have sex, they make babies. Reproduction may be optional for individuals, but it is not optional for societies. Societies that fail to have “enough” babies fail to survive. And babies are most likely to grow to functioning adulthood when they have the care and attention of both their mother and their father.
In opposing same-sex marriage in various state courts, a common key state's argument against allowing same-sex marriage has been the use of legal marriage to foster the state's interest in human reproduction. In Anderson et al. v. King County in which several same-sex couples argued that the state of Washington's version of the Defense of Marriage Act (DOMA) was unconstitutional, the Washington Supreme Court ruled 5 to 4 that the law was constitutional. Writing in the majority opinion, Justice Barbara Madsen wrote in 2006:
The Legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to the survival of the human race and furthers the well-being of children by encouraging families where children are brought up in homes headed by children's biological parents.
Some proponents of same-sex marriage also argue that because the law does not prohibit marriage between sterile heterosexual couples or to women past menopause, the procreation argument cannot reasonably be used against same-sex marriage, particularly since technological advances allow gay couples to have their own related biological children. The Maryland Supreme Court ruled that "the fundamental right to marriage and its ensuing benefits are conferred on opposite-sex couples not because of a distinction between whether various opposite-sex couples actually procreate, but rather because of the possibility of procreation."
Advocates of same-sex marriage oppose these social arguments. Advocates for recognition of same-sex unions argue that there is no difference in the ability of same-sex and opposite-sex couples to make commitments and care for each other, and therefore the law of marriage should apply to both.
Prenuptial and postnuptial agreements arise among those holding this view.
Dissidents to the same-sex marriage movement within the gay community argue that the pursuit of social recognition and legal benefits by means of marriage reinforces marriage as an institution of exclusion, because it extends rights and benefits to people on the basis of their relationship status.
Some opponents of same-sex marriage (including some ex-gay organizations) argue that sexual behavior is not genetic or unchangeable, reasoning that if homosexuality is not genetic or unchangeable, it is not unjust for government to define marriage as the union of one woman and one man. Same-sex marriage opponents support this position with research as well as anecdotal evidence regarding efforts to overcome unwanted same-sex attractions. They point to the American Psychiatric Association's statement which reads "some people believe that sexual orientation is innate and fixed; however, sexual orientation develops across a person’s lifetime."
In Deane & Polyak v. Conaway, the Maryland Supreme Court ruled "There is no fundamental right to marry a person of your own sex". For instance, a heterosexual U.S. citizen who marries a foreign partner immediately qualifies to bring that person to the United States, while long-term gay and lesbian binational partners who have spent decades together are denied the same rights, forcing foreign gay partners to seek expensive temporary employer or school-sponsored visas or face separation.
In a 2003 case titled Lawrence v. Texas, the Supreme Court held that the right to private consensual sexual conduct was protected under the Fourteenth Amendment. The Maryland Supreme Court ruled that the case did not establish the right to same-sex marriage.
Some opponents of extending marriage to same-sex couples claim that equality can be achieved with civil unions or other forms of legal recognition that don't go as far as to use the word "marriage" that's used for opposite-sex couples. An opposing argument, used by the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health, is the following: "the dissimilitude between the terms "civil marriage" and "civil union" is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status" and also that "The history of our nation has demonstrated that separate is seldom, if ever, equal." There is, however, a bill pending in the United States Congress since 2000, called Uniting American Families Act pertaining to this alleged discrimination.
Of all of the state supreme courts that have considered cases alleging that an opposite-sex definition of marriage is unconstitutional and discriminatory, only five -- the high courts of Hawaii (later reversed by constitutional amendment), Vermont, Massachusetts, New Jersey, and California -- have found opposite-sex marriage to be unconstitutional and discriminatory (see Same-sex marriage in the United States, Same-sex marriage status in the United States by state, and Hawaii Constitutional Amendment 2 (1998)).
Some opponents of same-sex marriage argue that a state’s decision to define marriage as a relationship between one woman and one man does not discriminate against anyone; according to this view, the 48 states in the United States that do not allow same-sex marriage confer identical rights upon adult, unmarried persons: the right to marry any consenting, unrelated, unmarried adult of the opposite sex.
In 1972, after the Minnesota Supreme Court's ruling in Baker v. Nelson specifically distinguished Loving as not being applicable to the same-sex marriage debate, the United States Supreme Court dismissed the appeal "for want of a substantial federal question." This type of dismissal usually constitutes a decision on the merits of the case; as such, Baker appeared — at least for a time — to be binding precedent on all lower federal courts.
It is unclear whether Baker v. Nelson remains as a potential bar to the federal courts from hearing cases regarding same-sex marriage. The federal Defense of Marriage Act of 1996 (DOMA) simultaneously created (1) a federal definition of marriage, , and (2) a new rule under the Full Faith and Credit Act (passed pursuant to Congress's authority under the federal Constitution's Full Faith and Credit Clause), , purporting to limit mandatory interstate recognition of same-sex marriages. By "federalizing" marriage with statutes that are susceptible to judicial scrutiny, Congress effectively — albeit perhaps unintentionally — expanded the subject-matter jurisdiction of the federal courts, seemingly superseding Baker's dismissal "for want of a substantial federal question."
This loophole in jurisdiction recently came to light when a same-sex couple was granted standing to sue in federal district court on a claim that DOMA is unconstitutional under the federal Constitution. See Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal., 2005), aff'd in part and rev'd in part, 447 F.3d 673 (9th Cir. 2006), cert. denied, 127 S. Ct. 396 (2006). In Smelt, the district court applied Pullman abstention to one part of the claim, but it proceeded to the merits on another part, finding DOMA to be constitutional. The United States Court of Appeals for the Ninth Circuit affirmed the district court on the abstention question, but it reversed the district court on the merits, holding that the couple lacked standing to sue. The Ninth Circuit raised the standing question sua sponte, but only because the couple had not demonstrated the requisite injury. The Ninth Circuit left open the possibility that another couple with a demonstrable injury could bring the same suit in the future. Importantly, Baker v. Nelson is mentioned nowhere in the Ninth Circuit's opinion; its continuing relevance is therefore highly suspect.
Beginning in 2003, members of Congress have annually introduced a "court-stripping" provision that would prevent all federal courts from hearing claims challenging the constitutionality of DOMA. See, e.g., Marriage Protection Act of 2003, H.R. 3313 (108th Cong., 1st Sess.). This proposed court-stripping provision has itself been challenged as being of dubious constitutionality. See Jason J. Salvo, Comment, Naked Came I: Jurisdiction-Stripping and the Constitutionality of House Bill 3313, 29 Seattle U. L. Rev. 963 (Summer 2006); Maxim O. Mayer-Cesiano, On Jurisdiction-Stripping: The Proper Scope of Inferior Federal Courts' Independence from Congress, 8 U. Pa. J. Const. L. 559 (May 2006); J. Spencer Jenkins, Note, 'Til Congress Do Us Part: The Marriage Protection Act, Federal Court-Stripping, and Same-Sex Marriage, 40 New Eng. L. Rev. 619 (Winter 2006); Sarah Kroll-Rosenbaum, Note, The Marriage Protection Act: A Lesson in Congressional Over-Reaching, 50 N.Y. L. Sch. L. Rev. 809 (2005-2006); Michael J. Gerhardt, The Constitutional Limits to Court-Stripping, 9 Lewis & Clark L. Rev. 347 (Summer 2005); Theodore J. Weiman, Comment, Jurisdiction Stripping, Constitutional Supremacy, and the Implications of Ex Parte Young, 153 U. Pa. L. Rev. 1677 (2005).
Impact on same-sex couples: Badgett finds that exclusion from legal marriage has an economic impact on same-sex couples. According to a 1997 General Accounting Office study requested by Rep. Henry Hyde (R), at least 1,049 U.S. Federal laws and regulations include reference to marital status. A later 2004 study by the Congressional Budget Office finds 1,138 statutory provisions "in which marital status is a factor in determining or receiving 'benefits, rights, and privileges.'" Many of these laws govern property rights, benefits, and taxation. Same-sex couples are ineligible for spousal and survivor Social Security benefits. Badgett's research finds the resulting difference in Social Security income for same-sex couples compared to opposite-sex married couples is US$5,588 per year. The federal ban on same-sex marriage and benefits through the 1996 Defense of Marriage Act (DOMA) extends to federal government employee benefits. For example, after the 2006 death of former Massachusetts Congressman Gerry Studds (D), the first openly gay member of Congress, his legal spouse Dean Hara was denied the estimated $114,337 annual pension to which Hara would have been eligible if their Massachusetts marriage was recognized on the federal level. According to Badgett's work, same-sex couples face other financial challenges against which legal marriage at least partially shields opposite-sex couples:
While state laws grant full marriage rights (Massachusetts) or some or all of the benefits under another name (Vermont, New Jersey, California, etc.), these state laws do not extend the benefits of marriage on the Federal level, and most states do not currently recognize same-sex marriages or civil unions from other states.
One often overlooked aspect of same-sex marriage are the potential negative effects on same-sex couples. While the legal benefits of marriage are numerous, same-sex couples would face the same financial constraints of legal marriage as opposite-sex married couples. Such potential effects include the marriage penalty in taxation. Similarly, while social service providers usually do not count one partner's assets toward the income means test for welfare and disability assistance for the other partner, a legally married couple's joint assets are normally used in calculating whether a married individual qualifies for assistance.
Impact on businesses: Dr. M. V. Lee Badgett's research estimates the potential impact on businesses of same-sex marriage legalization to be $2 billion to the wedding industry alone. Badgett derives this estimate by calculating the amount spent on weddings if a) half of same-sex couples marry and b) each couple spends 1/4 the average amount spent on an opposite-sex wedding (US$27,600 average wedding cost / 4 = US$6,900 per same-sex couple).
Impact on employers: In terms of employers where marriage opponents fear higher benefit costs, Badgett and Mercer Human Resources Consulting separately find less than 1% of employees with a same-sex partner sign up for domestic partner benefits when a company offers them. Badgett finds less than 0.3% of Massachusetts firms' employees signed up for spousal benefits when that state legalized same-sex marriage.
Impact on governments: A 2004 Congressional Budget Office (CBO) report examines the impact of allowing the 1.2 million Americans in same-sex domestic partnerships in the 2000 Census to marry and finds the impact to be comparatively small in terms of the huge Federal budget. While some spending on Federal programs would increase, these outlays would be offset by more savings in other spending areas. The report predicts that if same-sex marriage was legalized in all 50 states and on the Federal level, the U.S. government would bring in a net surplus of US$1 billion per year over the next 10 years. In terms of specific programs' spending the report states:
Recognizing same-sex marriages would increase outlays for Social Security and for the Federal Employees Health Benefits (FEHB) program, CBO estimates, but would reduce spending for Supplemental Security Income (SSI), Medicaid, and Medicare. Effects on other programs would be negligible. Altogether, CBO concludes, recognizing same-sex marriages would affect outlays by less than $50 million a year in either direction through 2009 and reduce them by about $100 million to $200 million annually from 2010 through 2014.
The CBO study counters the economic argument by some U.S. critics of same-sex marriage against governmental recognition on the grounds that the public should not have to shoulder the burden of increased taxes and insurance premiums to cover the associated costs.