Same-sex marriage legislation in the United States

:"For more comprehensive descriptions broken down by state see the article, Same-sex marriage legislation in the United States by state."

In response to court action in a number of states, the United States federal government and a number of state legislatures passed or attempted to pass legislation either prohibiting or allowing some form of same-sex marriage or union.

Federal level

In 1996, the United States Congress passed and President Bill Clinton signed Public Law 106-199, the Defense of Marriage Act. The Act defines "marriage" and "spouse" for purposes of federal law.

The impact of the second part of the Act is less clear. Traditionally, states have been allowed to regulate the marital status of their own citizens. A narrow interpretation of the Act only codifies this policy. The Act was arguably passed out of concern that same-sex couples from all over the U.S. would fly to Hawaii, get married, and demand recognition in their home states (although Hawaii ultimately never allowed same-sex marriage).

A broad reading of the Act would allow states to refuse to recognize same-sex marriages of non-citizens, as well. For example, a same-sex couple from Massachusetts might get married in Massachusetts, and later move to another state, where the state would have no obligation to recognize the marriage. The Act may also mean that the state could refuse to recognize the marriage even if the couple were only passing through transiently (relevant, for example, in emergency medical decision-making), and not moving permanently. Either of these broader readings would be an exception to the Full Faith and Credit Clause.

Proponents of equal marriage rights for same-sex couples observe that there are over 1,138 federal laws in which marital status is a factor, as well as state and private benefits (family memberships, discounts, etc.) which are denied same-sex couples by excluding them from participating in marriage. A legal denial of federal rights or benefits, they say, directly contradicts the 14th Amendment of the US Constitution which provides for equal protection and substantive due process under the law: rights conferred to one person cannot be denied to another.

In the 2003 case "Lawrence v. Texas" which came before the Supreme Court of the United States, the court held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. Many proponents of same-sex marriage believe that this ruling, especially when combined with the 1967 ruling in "Loving v. Virginia" that eliminated anti-miscegenation laws, paves the way for a subsequent decision invalidating state laws prohibiting same-sex marriage. However, these proponents often do not mention, or are not aware, of the United States Supreme Court's summary affirmance in the case of "Baker v. Nelson" 409 U.S. 810. This decision, binding on all lower federal courts, clearly distinguishes "Loving", and establishes the right of the individual States to uphold traditional opposite-sex marriage.

Challenges to DOMA have already been rejected by several federal courts, including a decision by Judge James S. Moody in the case of "Wilson v. Ake".

Some opponents of same-sex marriage, wanting to ensure that the constitutionality of such laws cannot be challenged in the courts under the Full Faith and Credit clause, Equal Protection Clause or Due process clause of the United States Constitution, have proposed a Federal Marriage Amendment to the constitution that would prevent the federal government or any state from providing a marriage or the legal incidents thereof to a same-sex couple, whether through the legislature or the courts.

The amendment was debated in the United States Senate, but on July 14, 2004, a procedural motion to end debate failed by a wider-than-expected margin of 48 votes to 50. This effectively prevented the amendment from facing a full Senate vote.

Also in 2003, lesbian comedian Rosie O'Donnell's court case with ex-colleagues raised another new issue when O'Donnell's life partner, Kelli, was forced to testify against O'Donnell. Under United States law, spouses cannot be forced to testify against each other; but because same-sex couples are not allowed to marry, they are denied this courtroom right, part of a long list of benefits of marriage in the United States. They married on February 26, 2004 in San Francisco, but this was later nullified by the California Supreme Court.

As of April 2006, California same-sex couple Arthur Smelt and Christopher Hammer had a marriage-rights case pending in the federal Ninth Circuit Court of Appeals. Gay-rights groups including the Lambda Legal Defense and Education Fund and the American Civil Liberties Union did not support the lawsuit, on the grounds that it is likely to lose in the Supreme Court and set an unfavorable precedent. The Court eventually tossed out the suit in the spring of 2006, saying that the couples must wait for a ruling by the Appeals Court in California. [Kravets, David, " [http://www.boston.com/news/local/connecticut/articles/2006/04/02/two_paths_toward_one_goal_same_sex_marriage Two paths toward one goal: same-sex marriage] ", Associated Press, April 2, 2006.]

State level

See Same-sex marriage legislation in the United States by state for statutory text and actions sorted by state.

Efforts to enable same-sex unions

Votes by state legislatures to recognize various types of same-sex unions, sorted by date:

* Does not explicitly define marriage, but allows the legislature to define marriage.

* Ban declared unconstitutional by Judge Joseph Bataillon, Chief Judge of the U.S. District Court for the District of Nebraska. [ [http://www.msnbc.msn.com/id/7834478/ Neb. gay marriage ban struck down - Politics - MSNBC.com ] ] The ruling was appealed to the Eighth U.S. Circuit Court of Appeals based in St. Louis. [ [http://www2.ljworld.com/news/2005/jun/10/nebraska_samesex/?kansas_legislature LJWorld.com / Appeal filed to restore Nebraska’s prohibition of same-sex marriage ] ] That Court issued a ruling that re-instated the ban, declaring in part that it was a legitimate state interest. [ [http://www.washingtonpost.com/wp-dyn/content/article/2006/07/14/AR2006071400879.html Washington Post] ]

* On October 06, 2004, a Louisiana district judge tossed out the approved amendment saying it addressed two subjects: marriage and civil unions. Shortly after, the Louisiana Supreme Court unanimously overturned that ruling and found the amendment valid. [ [http://www.alliancedefensefund.org/news/story.aspx?cid=3297 ADF: Marriage unanimously affirmed in Louisiana - Alliance Defense Fund - Defending Our First Liberty ] ]

* Ban declared unconstitutional on May 16, 2006 by Fulton County Superior Court Judge Constance C. Russell, who said it violated the single-subject rule in Georgia's constitution. Governor Sonny Perdue said he was disappointed by the decision, which he said ran contrary to the voice of Georgia voters. The following day, the ruling was appealed to the Supreme Court of Georgia. On July 6, 2006, the Georgia Supreme Court ruled that the ban did not violate the single-subject rule. [ [http://www.wistv.com/Global/story.asp?S=4920141 WIStv.com Columbia, SC: Georgia governor vows special session if gay marriage appeal slows ] ] [http://www.cnn.com/2006/LAW/07/06/MF.gay.marriage.ap/]

Efforts to define marriage by statuatory initiative

The following consists of votes by statuatory initiatives that ban same-sex marriage and/or civil unions and domestic partnerships:

* There is a debate as to whether the adoption of Prop 22 only prohibited California from recognizing same-sex marriages performed in other states.

* In March 2005, Judge Richard Kramer ruled there appeared to be no rational state compelling interest in limiting marriage to heterosexual couples. His ruling was appealed to the California Court of Appeal for the 1st District, which upheld Proposition 22 on October 5, 2006. The Supreme Court of California ruled on May 15, 2008, that Proposition 22 is unconstitutional and it was struck down by the state's highest court.

References

ee also

General

* Same-sex marriage
* Timeline of same-sex marriage

United States

* Same-sex marriage in the United States
* Same-sex marriage in the United States public opinion
* Same-sex marriage legislation in the United States by state
* Same-sex marriage status in the United States by state
* 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
* History of civil marriage in the U.S.

External links

* [http://catholicvote.org/marriage_states.php Marriage & Same-Sex Relationships at Catholic Citizenship]
* [http://www.followthemoney.org/press/ReportView.phtml?r=236 The Money Behind the 2004 Marriage Amendments -- National Institute on Money in State Politics]
* [http://www.followthemoney.org/press/ReportView.phtml?r=329 The Money Behind the 2006 Marriage Amendments -- National Institute on Money in State Politics]