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EspañolSAME-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 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 1,049 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.[1]
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:
| State | Date | Type of same-sex union | Senate | Lower house | Governor | Final outcome | ||
|---|---|---|---|---|---|---|---|---|
| Yes | No | Yes | No | |||||
 | 1996 | Domestic Partnership | ''Passed'' | ''Failed'' | - |  No | ||
| | 1997 | Reciprocal Beneficiary Relationship | ''Passed'' | ''Passed'' | ''Signed'' |  Yes | ||
 | 1999 | Domestic Partnership | 22 | 14 | 41 | 36 | ''Signed'' | Yes |
 | 2000 | Domestic Partnership | ''Passed'' | ''Signed'' | Yes | |||
 | April 2000 | Civil Union | 19 | 11 | 79 | 68 | ''Signed'' | Yes |
| | 2001 | Domestic Partnership (expansion) | 23 | 11 | 41 | 32 | ''Signed'' | Yes |
| | 2003 | Domestic Partnership (expansion) | 23 | 14 | 41 | 33 | ''Signed'' | Yes |
 | January 2004 | Domestic Partnership | 23 | 9 | 41 | 28 | ''Signed'' | Yes |
 | April 2004 | Domestic Partnership | 19 | 14 | 84 | 58 | ''Signed'' | Yes |
 | February 2005 | Reciprocal Beneficiary Relationship | 10 | 18 | - | - | - | No |
 | April 2005 | Civil Union | 27 | 9 | 85 | 63 | ''Signed'' | Yes |
 | May 2005 | Domestic Partnership | 31 | 16 | 83 | 50 | ''Vetoed'' | No |
| | June 2005 | Same-Sex Marriage | - | - | 37 | 36 | - | No |
 | July 2005 | Civil Union | 19 | 10 | - | - | - | No |
| | September 2005 | Same-Sex Marriage | 21 | 15 | 41 | 35 | ''Vetoed'' | No |
 | November 2006 | Domestic Partnership | ''Citizen Referendum'' | No | ||||
| | December 2006 | Civil Union | 23 | 12 | 56 | 19 | ''Signed'' | Yes |
 | April 2007 | Domestic Partnership | 28 | 19 | 63 | 35 | ''Signed'' | Yes |
| | May 2007 | Domestic Partnership | 21 | 9 | 34 | 26 | ''Signed'' | Yes |
 | May 2007 | Civil Union | 14 | 10 | 243 | 129 | ''Signed'' | Yes |
★ Granted limited rights.
★ Expanded rights included.
★ Gave domestic partnerships legal rights of married couples.
★ Maryland Governor vetoed legislation; a veto override would require two-thirds support.
★ The vote failed to receive the absolute majority (41 votes) required to pass.
★ The bill failed to come to a floor vote in the House of Representatives.
★ California Governor vetoed legislation; a veto override would require two-thirds support.
Efforts to define marriage by constitutional amendment
The following table shows all popular vote results regarding state constitutional amendments concerning same-sex marriage, and in some cases civil unions and domestic partnerships. The Hawaii amendment is different in that it granted the legislature authority to "reserve marriage to opposite-sex couples" (which the legislature had already done).
| State | Initiative | Ban on | Date | Yes | No | Final outcome |
|---|---|---|---|---|---|---|
| ' ''1998:'' ' | ||||||
 | Ballot Measure 2 | Marriage | November 1998 | 68% (152,965) | 32% (71,631) | Yes |
| | Constitutional Amendment 2 | Marriage ban permitted | November 1998 | 69% (285,384) | 31% (117,827) | Yes |
| ' ''2000:'' ' | ||||||
 | Initiative Measure 416 | Marriage and civil union | November 2000 | 70% (450,073) | 30% (189,555) | Yes |
| ' ''2002:'' ' | ||||||
 | Question 2 | Marriage | November 2002 | 67% (337,183) | 33% (164,555) | Yes |
| ' ''2004:'' ' | ||||||
 | Constitutional Amendment 3 | Marriage and civil union | November 2004 | 75% (753,770) | 25% (251,914) | Yes |
.svg) | Constitutional Amendment 1 | Marriage and civil union | November 2004 | 76% (2,454,912) | 24% (768,703) | Yes |
 | Constitutional Amendment 1 | Marriage and civil union | November 2004 | 75% (1,222,125) | 25% (417,097) | Yes |
 | Constitutional Amendment 1 | Marriage and civil union | September 2004 | 78% (618,928) | 22% (177,103) | Yes |
 | State Proposal - 04-2 | Marriage and civil union | November 2004 | 59% (2,698,077) | 41% (1,904,319) | Yes |
 | Amendment 1 | Marriage | November 2004 | 86% (957,104) | 14% (155,648) | Yes |
 | Constitutional Amendment 2 | Marriage | August 2004 | 71% (1,055,771) | 29% (439,529) | Yes |
 | Initiative 96 | Marriage | November 2004 | 67% (295,070) | 33% (148,263) | Yes |
 | Constitutional Measure 1 | Marriage and civil union | November 2004 | 73% (223,572) | 27% (81,716) | Yes |
 | State Issue 1 | Marriage and civil union | November 2004 | 62% (3,329,335) | 38% (2,065,462) | Yes |
 | State Question 711 | Marriage and civil union | November 2004 | 76% (1,075,216) | 24% (347,303) | Yes |
| | Measure 36 | Marriage | November 2004 | 57% (1,028,546) | 43% (787,556) | Yes |
| | Constitutional Amendment 3 | Marriage and civil union | November 2004 | 66% (593,297) | 34% (307,488) | Yes |
| ' ''2005:'' ' | ||||||
 | Proposed amendment 1 | Marriage and civil union | April 2005 | 70% (414,106) | 30% (178,018) | Yes |
 | Proposition 2 | Marriage and civil union | November 2005 | 76% (1,718,513) | 24% (536,052) | Yes |
| ' ''2006:'' ' | ||||||
 | Sanctity of Marriage Amendment | Marriage and civil union | June 2006 | 81% (734,746) | 19% (170,399) | Yes |
 | Proposition 107 | Marriage and civil union | November 2006 | 48% (721,489) | 52% (775,498) | No |
| | Amendment 43 | Marriage | November 2006 | 56% (768,700) | 44% (612,155) | Yes |
 | Amendment 2 | Marriage and civil union | November 2006 | 63% (281,823) | 37% (163,191) | Yes |
 | Amendment 1 | Marriage and civil union | November 2006 | 78% (818,894) | 22% (230,674) | Yes |
 | Amendment C | Marriage and civil union | November 2006 | 52% (172,237) | 48% (160,756) | Yes |
 | Marriage Protection Amendment | Marriage | November 2006 | 81% (1,417,315) | 19% (326,335) | Yes |
 | Virginia | Marriage and civil union | November 2006 | 57% (1,325,668) | 43% (1,003,967) | Yes |
 | Referendum 1 | Marriage and civil union | November 2006 | 59% (1,260,554) | 41% (861,554) | Yes |
See also : List of defense of marriage amendments to U.S. state constitutions by type
Possible future efforts to define marriage through constitutional amendment
| State | Date | Description |
|---|---|---|
 | No Specific Date | Failed to pass the state senate. Likely to be re-introduced. Will probably not be on the ballot until at least 2012. |
| | No Specific Date | Amendments introduced multiple times, have failed to pass the Democrat-controlled legislature. Will likely be re-introduced. |
 | No Specific Date | Failed to be brought up for a vote in state senate, likely to be re-introduced next year. |
| | No Specific Date | Amendments have failed in the past. However, civil unions have just been legalized by the Democrat-controlled legislature. Republicans have vowed to repeal the civil union law and introduce another amendment if they take back control in 2008. |
 | No specific date | Introduced in legislature four times, has been blocked from coming up for a vote in the full house or senate by the democratic leadership. Likely to be re-introduced next year, but is unlikely to go to voters as long as democrats control the state legislature. |
| | No specific date | After the court decision rejecting same-sex marriage last year, advocates are expected to try and legalize it through the legislature. Opponents have also filed amendments to ban it, but it is unlikely that they will pass as long as democrats control the state legislature. |
 | No specific date | Several amendments and statutory bans have been introduced, but not voted on yet. |
| | 2008 | Alaska has had a marriage amendment since 1998, but in April 2007 53% of voters passed an advisory referendum calling on the legislature to allow a 2008 vote on banning same sex benefits as well.[2] |
| | 2008 | Lawmakers preparing to introduce a revised amendment after failure of Proposition 107 in 2006. |
 | 2008 | ProtectMarriage.com and VoteYesMarriage.com have signature drives underway to put the measure on the ballot in 2008. |
 | 2008 | Amendments introduced in legislature. |
 | 2008 | Florida4Marriage.org must collect about 18,000 more petitions to place the Florida Marriage Protection Amendment on the 2008 ballot. Due to a new law, the amendment will need to receive 60% support from voters to pass in 2008. |
 | 2008 | Protect Marriage Illinois must collect 500,000 petition signatures by April 20, 2006 to be on the 2008 ballot, although it would be non-binding. |
 | 2008 | Already passed both chambers of the state legislature in 2005 but failed to pass a House Committee vote on April 4th, 2007. It could still make it to voters in 2008 if reintroduced. |
| | 2008 | Minnesota Citizens in Defense of Marriage is attempting to collect over 100,000 signatures to place the measure on the ballot. |
| | 2008 | Petition drive under way. |
 | 2008 | Marriage amendment proposed in state legislature. |
 | 2009 | Pennsylvania For Marriage is collecting petition signatures. State senate and assembly could not agree on the wording, preventing the issue from going to voters in 2007. The earliest it could be voted on is 2009. |
 | 2008 | Has been introduced in legislature several times, failed to come up for a vote. Will be re-introduced. |
 | 2012 | Depending on results from the 2008 election, a petition drive is expected to take place to get the issue to voters by 2012. |
★ 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.[3] The ruling was appealed to the Eighth U.S. Circuit Court of Appeals based in St. Louis.[4] That Court issued a ruling that re-instated the ban, declaring in part that it was a legitimate state interest.[5]
★ 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.[6]
★ Ban declared unconstitutional on May 16th, 2006 by Fulton County Superior Court Judge Constance C. Russell saying 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.[7][8]
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:
| State | Date | Yes | No | Description | Final outcome |
|---|---|---|---|---|---|
| ''West:'' | |||||
| | March 2000 | 61% (4,618,673) | 39% (2,909,370) | Proposition 22. Amend the Family Code to say: Only marriage between a man and a woman is valid or recognized in California.[9] | Yes |
| | November 2006 | Prevent same-sex couples from being able to register as domestic partnerships. (Failed to qualify for ballot) | |||
| | November 2006 | 47% (641,443) | 53% (727,433) | Colorado Referendum I (2006) : To allow same-sex couples to register as "domestic partners".[10] | No |
| | April 2007 | 53% (60,896) | 47% (54,442) | Advisory Referendum. Calls on the legislature to place on the 2008 ballot an amendment to ban same sex employee benefits.[11] | Yes |
★ There is still an on-going debate on whether or not 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.
References
1. Kravets, David, ''Two paths toward one goal: same-sex marriage'', Associated Press, April 2, 2006.
2. State of Alaska 2007 Special Election Official Results
3. http://www.msnbc.msn.com/id/7834478/
4. http://www2.ljworld.com/news/2005/jun/10/nebraska_samesex/?kansas_legislature
5. Washington Post
6. http://www.alliancedefensefund.org/news/story.aspx?cid=3297
7. http://www.wistv.com/Global/story.asp?S=4920141
8. http://www.cnn.com/2006/LAW/07/06/MF.gay.marriage.ap/
9. Full Results
10. Colorado Referendum I full results
11. 2007 Statewide Advisory Vote Question
12. State of Alaska 2007 Special Election Official Results
External link
★ Marriage & Same-Sex Relationships at Catholic Citizenship
★ The Money Behind the 2004 Marriage Amendments -- National Institute on Money in State Politics
★ The Money Behind the 2006 Marriage Amendments -- National Institute on Money in State Politics
See also
In General
★ Same-sex marriage
★ Timeline of same-sex marriage
In USA
★ 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
★ Freedom to Marry Coalition
★ History of civil marriage in the U.S.
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