Beginning in the 1970s, same-sex couples who had formed common households began to seek legal recognition for their relationships, and some sought marriage licenses from the state in which they resided. Legal recognition was deemed important not only for the vast array of rights and benefits and responsibilities that accompany legally married status but also as a sign of social recognition and acceptance of such relationships.
In the United States, the definition of marriage has traditionally been a matter of state law. States have restricted the choice of marital partners on the basis of age, closeness of genetic relationship, race, and penal status. The former two restrictions have generally not been questioned. The later two were challenged successfully on Constitutional grounds in Loving v. Virginia, 388 U.S. 1 (1967), concerning racial intermarriage, and Turner v. Safley, 482 U.S. 78 (1987), concerning the right of prisoners to marry. The Supreme Court made clear that the right to marry is one of the most basic rights of adults in our society, and the state must have a compelling justification, such as protection of minors or prevention of incest, to interfere with individual preferences in such matters.
When marriage is relevant for purposes of federal law, the federal government has traditionally treated as married any couple whose marriage was valid in the place where it was celebrated. Federal laws in which rights or responsibilities turn on marriage usually do not contain any definition of marriage. In 1996, however, Congress passed and President William J. Clinton signed the ‘‘Defense of Marriage Act,’’ which adopts the first federal statutory definition of marriage, providing that for all purposes of federal law, only marriages between one man and one woman will be considered valid, regardless of whether any state authorizes same sex marriages. The Act, commonly referred to as DOMA, also purports to excuse the states from having to recognize same sex marriages contracted in other states, which they might otherwise be obligated to do under the Constitution’s full faith and credit clause.
The Supreme Court has never addressed the question whether same sex couples would be entitled to marry, either as a matter of statutory construction or constitutional principle. When the Supreme Court ruled in Lawrence v. Texas, 123 S.Ct. 2472 (2003), that laws forbidding private acts of consensual sodomy between adults violate the liberty protected by the due process clause of the Fourteenth Amendment, dissenting Justice Antonin Scalia suggested that the Court’s rejection of moral disapproval as a rational justification for sodomy laws would remove the principle argument against a constitutional right for same-sex marriage. Writing for a majority of the Court, Justice Anthony M. Kennedy, Jr., rejected the contention that the Court’s decision necessarily decided the issue whether gay people are entitled to legal recognition for their relationships, and, writing only for herself in concurrence with the result, Justice Sandra Day O’Connor asserted that the state’s desire to preserve traditional marriage might justify treating same-sex relationships differently from opposite sex relationships without violating Equal Protection requirements.
Before the 1990s, the statutory and common law of almost all states approached this issue through indirection. Same-sex marriage was not imagined and not mentioned. Traditional domestic relations statutes spoke of ‘‘husband’’ and ‘‘wife’’ or ‘‘man’’ and ‘‘woman’’ in referring to marital applicants and partners, and in specifying their rights and obligations. For much of our history, those rights and obligations differed depending on whether one was speaking of the husband or the wife, and the woman’s legal identity was merged into her husband’s identity. One of the struggles of the women’s rights movement was to reform the law to provide equal rights and benefits to wives and husbands, and one result was a wave of legislative modernization resulting in the adoption of gender-neutral marriage statutes in many jurisdictions, but still at a time when legislatures were neither thinking in terms of same-sex marriage nor evidencing any direct intentions to make it available. Thus, although many modern domestic relations laws are gender neutral, they cannot be said affirmatively to authorize same-sex marriage, at least by virtue of their legislative history and the original intentions of their drafters.
Since the 1970s, there have been two ‘‘waves’’ of samesex marriage litigation, the first completely unsuccessful, the second notably more successful, at least to the extent of suggesting that same-sex marriage will probably become a reality in the United States.
Gay liberationists filed the early marriage cases in the first flush of excitement of the newly emerging militant gay rights movement of the 1970s. In Kentucky (Jones v. Hallahan, 501 S.W.2d 588 ), Minnesota (Baker v. Nelson, 191 N.W.2d 185 ), and Washington State (Singer v. Hara, 522 P.2d 1187 ), appellate courts ruled that despite genderneutral language, marriage laws did not authorize same-sex marriage, which was not within the contemplation of the legislatures, and that no federal constitutional right was violated by denying same sex partners the right to marry. Some courts treated the issue as one of traditional definition: a marriage was defined in American history and culture as the union of one man and one woman, so what the plaintiffs were seeking was not a marriage. The Washington court, in a jurisdiction that had banned sex discrimination by constitutional amendment, pointedly rejected the argument that forbidding same-sex couples to marry was sex discrimination, because men and women were equally forbidden from marrying members of their own sex.
These defeats discouraged further litigation. In addition, lesbian and gay rights public interest law firms, which were in the best position to mount test-case litigation, were notably uninterested in pursuing marriage, being then focused on challenging sodomy laws and establishing rights of association and nondiscrimination in the workplace. Many leaders in these organizations had strongly felt ideological objections to marriage, which they saw as an inherently conservative institution that would stifle the creativity of gay relationships.
Beginning in the mid-1980s, the epidemic of acquired immuno deficiency syndrome (AIDS), coinciding with the widespread phenomenon of lesbians having children through donor insemination, sparked new interest in marriage in the gay community.
Opponents of same-sex marriage have usually grounded their overt opposition on concern for children, arguing that the elaborate legal structure of rights and responsibilities surrounding marriage has been built up to ensure the welfare of children being raised by married parents. Such a realization undoubtedly helped motivate lesbian mothers to be interested in obtaining marriage rights, even while ardent feminists in the gay academic and legal communities were arguing against marriage as a patriarchal institution. Patriarchal it may have been, but being married provided advantages for a family that included children.
Marriage is also crucially important during periods of illness and death, as the AIDS epidemic brought home to gay men and their lesbian caretakers in a wide range of circumstances. Lacking a legally recognized relationship proved detrimental to same-sex partners denied access to their hospitalized mates, excluded from medical information and decision making, sometimes evicted from their homes and treated as strangers or outsiders by the birth families of their dying or deceased partners. The lack of a marital relationship also caused problems for tax and inheritance purposes that could not necessarily be resolved through estate planning.
These two streams came together by the late 1980s in strong community agitation for the right to marry, symbolized during the National March on Washington for Lesbian and Gay Rights in October 1987 by a mass wedding ceremony performed in front of the Internal Revenue Service by the Rev. Troy Perry, founder of the gay-oriented Metropolitan Community Church of America. Although gay rights litigation groups continued to resist calls to file lawsuits, individual community members initiated their own litigation in Washington, D.C., New York, Hawaii, and Alaska. The Washington case, Dean and Gill v. District of Columbia, 653 A.2d 307 (D.C.App. 1995), suffered utter rejection in the courts of the District, and the New York case, Storrs v. Holcomb, 666 N.Y. S.2d 835 (N.Y. App. Div. 1997), foundered on procedural flaws, but the Hawaii and Alaska cases showed the first glimmerings of success.
In Baehr v. Lewin, 852 P.2d 44, the Hawaii Supreme Court ruled in 1993 that a trial judge erred in granting summary judgment to the state. Hawaii had adopted an Equal Rights Amendment, making all governmental classifications based on sex ‘‘suspect’’ in the eyes of the Supreme Court, and a majority of that court accepted the argument that government restriction on the gender of marital partners was a sex-based classification. The court’s ruling led to a trial in October 1996, at which expert witnesses for both sides focused on the state’s argument that its compelling interest in providing the best possible families for raising children justified denying marriage licenses to same sex partners. In an unofficially published opinion, Baehr v. Miike, 1996 Westlaw 694235 (Haw. Cir. Ct., 1st Cir. Dec. 3, 1996), the trial judge found for the plaintiffs, noting that many same sex partners were raising children, that studies showed that their children were not harmed by being raised in such households, and concluding that denial of marriage to their parents actually worked a disadvantage to the children, who were denied the panoply of rights and benefits that society bestows on families headed by legally married partners. Shortly thereafter, a trial judge reached a similar conclusion in the Alaska case, Brause v. Bureau of Vital Statistics, 1998 WL 88743 (Alaska Super. Feb. 27, 1998).
However, the polities of Hawaii and Alaska were not ready for same-sex marriage. In both states, the legislatures placed constitutional amendments before the public to remove this issue from the judicial forum, and both constitutional amendments were passed by comfortable margins. However, the 1993 Hawaii Supreme Court ruling created widespread concern by opponents of same-sex marriage that either Hawaii or another state would eventually authorize same-sex marriage, and that other states would then be required under the federal Constitution’s Full Faith and Credit Clause to recognize such marriages. Full Faith and Credit is a notably underdeveloped area of constitutional law, and its application to the issue of marriage recognition is a matter of considerable debate, as is the scope of Congress’s authority to legislate about the substantive operation of this constitutional doctrine. There was also a widespread belief that a state could escape the obligation to recognize same-sex marriages from other jurisdictions if it had enacted a clear statement of public policy opposing them. These views combined to fuel bipartisan passage of the federal Defense of Marriage Act (DOMA) during the 1996 presidential election campaign, and the ‘‘mini-DOMAs’’ passed by about twothirds of the states beginning shortly after the Hawaii Supreme Court decision and continuing to the present, with a few pending as this is being written.
The near success of the Hawaii litigation led the gay litigation groups to change course and consider affirmative test-case litigation for marriage. Lambda Legal Defense & Education Fund (Lambda Legal) joined the plaintiffs’ legal team in Hawaii to assist with the trial on remand. Gay and Lesbian Advocates and Defenders (GLAD), the New England public interest firm, then devised a test case with carefully selected plaintiffs in Vermont, believed to be the state with the best legal and constitutional framework to advance this issue. At the time the lawsuit was filed, Vermont law prohibited sexual orientation discrimination, and state employees in Vermont enjoyed domestic partnership benefits for their non-marital partners. Vermont had repealed its sodomy law in 1977. Both the legislature and the governorship were under Democratic Party control, and key leaders were seen as receptive to same-sex marriage. Vermont was the only state with an openly gay statewide elected official, State Auditor Edward Flanagan. The state constitution had a unique equal benefits clause in which to ground the theory of the case.
The Vermont Supreme Court announced in Baker v. State of Vermont, 744 A.2d 864 (1999), that lesbians and gay men were entitled to the same rights and benefits accompanying marriage as other Vermonters. The court also concluded that the legislature should be given an opportunity to determine how such rights were to be afforded, with only one partially dissenting judge arguing that the court should simply open up marriage to same-sex partners. The result was an intense political struggle, culminating in passage of the Civil Union Act, which creates a ‘‘separate but almost equal’’ legal status for same-sex partners. Because the statute expressly states that marriage is reserved for opposite sex couples, it deprives samesex partners of the ability to claim that they are entitled to any of the rights and benefits provided to married couples under federal law. The uniqueness of the civil union status also left considerable doubt about its portability or potential respect in other jurisdictions. But the Vermont Supreme Court saw it as sufficient to meet state constitutional requirements and ended the litigation.
GLAD took the next step of filing a test case in Massachusetts, Goodridge v. Department of Public Health, and Lambda Legal devised and filed its own test case in New Jersey, Lewis v. Harris. The American Civil Liberties Union of Indiana also filed a test case on same-sex marriage, Morrison v. Sadler.
The Massachusetts case was the first to be decided. In Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. Sup.Ct., Nov. 18, 2003), the court voted four to three that exclusion of same sex couples from marriage violated the state constitution on equal protection grounds and gave the legislature 180 days in which to take action it deemed ‘‘appropriate.’’ The legislature, panicked, did nothing to adjust state law to accommodate the decision during the 180-day period, instead voting to recommend to the public an amendment to the state constitution banning same sex marriages and authorizing civil unions. The measure narrowly passed the legislature but would have to be approved in identical wording by a subsequently elected legislature before it could be placed on the ballot. (In September 2005, the subsequently elected legislature defeated the amendment by a decisive margin, but opponents of same-sex marriage received the go-ahead from the attorney general to begin circulating petitions to put their own measure on the ballot.) Meanwhile, the Supreme Judicial Court responded negatively to a certified question from the state Senate as to whether a Vermont-style civil union statute would satisfy state constitutional requirements, and the court’s decision went into effect on May 17, 2004. Thus, Massachusetts became the first jurisdiction in the United States in which same-sex couples could marry as a matter of state law.
However, the governor and attorney general insisted that out-of-state couples could not marry in Massachusetts because of an obscure, previously unenforced provision of the marriage law dating to 1913, under which nonresidents may not be issued a Massachusetts marriage license if their marriage would not be recognized as valid in their state of residence. After some initial resistance, local town clerks fell into line with this ruling, and a new lawsuit was initiated to challenge the constitutionality of the 1913 provision, which was pending before the Supreme Judicial Court as this is written.
Meanwhile, the Massachusetts ruling set off alarm bells around the nation. President George W. Bush included a call for a Federal Marriage Amendment to adopt a uniform national definition of marriage in his 2004 State of the Union Address. Attending that address was the newly elected mayor of San Francisco, Gavin Newsom, who found the president’s statement so offensive that he persuaded San Francisco city officials to announce in February that they had concluded that the exclusion of same-sex couples from the right to marry violated the California constitution, and the city began issuing marriage licenses to same-sex couples. Thousands were married at San Francisco City Hall before the courts put a stop to the activity at the behest of the state’s attorney general. (The California Supreme Court later ruled that none of those marriages were valid, holding that the mayor and city government did not have the authority to issue licenses that were contrary to state law without first getting a judicial invalidation of the state law.) However, the San Francisco activity was the tip of an erupting volcano, as local officials in New Paltz, New York, Multnomah County (Portland), Oregon, and Santa Fe, New Mexico, briefly took similar action before being reigned in by higher authority.
In the ensuing controversy, more than a dozen states enacted constitutional amendments banning same-sex marriage during 2004 election cycles (some going even further to ban civil unions and domestic partnerships), while marriage litigation ensued in California, Oregon, Washington State, New York, and Florida, as existing cases continued in New Jersey and Indiana. The results of the litigation were mixed, but as of the time of this writing, none of the cases had resulted in a final decision following the lead of Massachusetts, although a Supreme Court ruling was imminent in Washington State, and argument was to be held shortly in the New Jersey Supreme Court.
Perhaps more significant than the unfolding litigation, however, was the action of the California legislature during the summer of 2005. Although a legislative proposal to open up marriage to same-sex partners had initially been unsuccessful, and many had argued that it could not be enacted through normal legislation because of a popularly enacted ban on same-sex marriage just a few years before, Proposition 22, late in the summer of 2005 the proposal was revived and narrowly passed both houses of the state legislature. For the first time, a legislative body in the United States had affirmatively acted to make marriage available to same-sex partners. However, Governor Arnold Schwarzenegger, who had previously stated that he had ‘‘no problem’’ with same-sex marriage, promptly indicated his intention to veto the measure, on the ground that ‘‘the people’’ had spoken through Proposition 22 and that pending litigation challenging the constitutionality of that measure was the appropriate method to resolve the issue. Although at the time of writing the governor was expected to veto the bill, the very fact of its passage through the legislature signaled an important new stage in the developing story of same-sex marriage. What had been widely considered political poison, never to be achieved through a normal legislative process, had now become politically conceivable. This gave heart to same-sex marriage proponents in other jurisdictions as they plotted strategy toward the longterm goal of equality for same-sex partners.
During the summer of 2005, opponents of samesex marriage in the federal Congress took two routes to advance their views, promoting the Federal Marriage Amendment and a bill that would strip federal courts of jurisdiction to hear constitutional challenges to the Defense of Marriage Act. Both of those efforts fell short, with many members saying that they were premature, especially because the few federal courts to confront the issue had rejected constitutional challenges to DOMA and refused to accord any recognition to same-sex marriages contracted in Canada or Massachusetts. However, general elections in 2005 and 2006 were expected to bring the enactment of more state constitutional amendments on the subject.
The same-sex marriage litigation in the United States was unfolding against a background of increasing legal recognition for same-sex partners—and even the right to marry—abroad. The Netherlands and Belgium had legislated to open up marriage to samesex partners, and most of Scandinavia provided registered partnerships that carried most of the rights and responsibilities of marriage. The Hungarian Constitutional Court had opened up the status of ‘‘common law’’ marriage to same-sex partners. The South African courts had required the government to provide recognition to same-sex partners in a variety of contexts, and informed speculation suggested that ultimately the court, ruling under a Constitution that expressly forbids discrimination on the basis of sexual orientation, would mandate opening up marriage.
But the most immediate contribution to placing same-sex marriage in the center of political discussion in the United States came from Canada, where the highest appellate courts of two provinces—British Columbia and Ontario—ruled in the spring of 2003 that the Canadian common law definition of marriage must be immediately changed in compliance with the Canadian Charter of Rights and Responsibilities to allow same-sex marriages, and couples began marrying in those provinces immediately (Barbeau v. British Columbia [Attorney General], EGALE Canada Inc. v. Canada [Attorney General], 2003 BCCA 251, 13 B.C. L.R. [4th] 1, 2003 Carswell BC 1006 [May 1, 2003]; Halpern v. Canada [Attorney General], 2003 Carswell- Ont 2159 [June 12, 2003]). Because there was no residency requirement, same-sex couples from the United States began to travel to Canada to get married, just as many had traveled to Vermont after the Civil Unions Act went into effect in 2000. The ruling Liberal Party in the national Parliament then framed a statute to embody the new common law ruling for uniform application to all the provinces and to provide an exemption for objecting religious institutions who might not want to perform such marriages, and referred the draft legislation to the Supreme Court of Canada for advisory opinions on its constitutionality and potential application. After the Court ruled that such a law would be consistent with the constitution and binding on the provinces, but that no religious group could be required consistent with the Charter of Rights to perform any marriages inconsistent with their religious precepts, the government proceeded to put the measure to a vote, and it was enacted during the summer of 2005, thus making Canada the first country in the Western Hemisphere to authorize same-sex marriage on the national level.
But Canada was not the only country to endorse same-sex marriage during 2005. In 2004, after terrorist bombings in Spain led to the surprising defeat of the incumbent government and the election of a Socialist government that had pledged to support same-sex marriage, the attention of Europe turned to that country, traditionally considered a bastion of conservative Catholicism. Despite the fervent efforts of the Roman Catholic Church to stir up opposition to the proposal, public opinion polls showed a solid majority of the Spanish public in support of the government’s proposal, and it was enacted and went into effect shortly before the Canadian legislation, making Spain the third country in the world (after the Netherlands and Belgium) to embrace same-sex marriage.
The spread of same-sex marriage in the United States seems inevitable. The Massachusetts Supreme Judicial Court’s 2003 decision inspired so much activity around the country, and spawned so many lawsuits, that it seemed inevitable that somewhere, perhaps in Washington State or New Jersey, a second state would join the ranks of same-sex marriage jurisdictions. Meanwhile, the California legislature’s action in narrowly passing a statutory authorization for same sex marriage, although ultimately unsuccessful because of the governor’s veto, signaled that the concept was becoming politically more palatable.
The main policy questions remaining are whether same-sex marriage will have a positive or a negative effect on society and particularly whether it would damage the existing institution of marriage. Evidence from the Netherlands, Belgium, Massachusetts, and Canada, although still early, suggests that a society can accept with equanimity the addition of samesex married couples, and that little effect on traditional marriages has been seen in the short run, either in their number or their stability. (Indeed, the Massachusetts legislature’s vote in September 2005 to reject the proposed anti-same-sex marriage constitutional amendment provided a prime illustration of this point, because many legislators who had previously supported the amendment now took the position that after same-sex couples had been marrying for more than a year without any adverse societal effect, there was no policy justification to pass the amendment.) Existing studies suggest that the impact on children being raised by same-sex partners will be to make them more secure and entitle them to more benefits, particularly crucial health insurance in cases in which their ‘‘non-biological’’ parent is the one whose job is the source of coverage.
Same-sex marriage has not been available long enough in modern times for one to identify its longterm impact, although one can speculate that the existence of same sex marriages is likely to contribute to the continuing evolution of marriage toward an equal partnership in which the roles of the spouses are not sharply defined or delimited by gender. In other words, same-sex marriage may be one of the inevitable effects of the direction in which the institution of marriage was already evolving before the first case was filed by a same-sex couple seeking a license.
ARTHUR S. LEONARD
References and Further Reading
Cases and Statutes Cited
See also Gay and Lesbian Rights; Marriage, History of