Gay marriage legal in six states

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STATE GAY MARRIAGE CVIL UNIONS DOMESTIC PARTNERSHIPS LAW PROHIBITS SAME-SEX MARRIAGE AMENDMENT PROHIBITS SAME-SEX MARRIAGE Alabama       • • Alaska       • • Arizona       • • Arkansas       • • California     •   • Colorado       • • Connecticut • •1       Delaware       •   Florida       • • Georgia       • • Hawaii     • •  •2 Idaho       • • Illinois       •   Indiana       •   Iowa •         Kansas       • • Kentucky       • • Louisiana       • • Maine •   •     Maryland       •   Massachusetts •         Michigan       • • Minnesota       •   Mississippi       • • Missouri       • • Montana       • • Nebraska         • Nevada     •   • New Hampshire •         New Jersey   •       New Mexico           New York           North Carolina       •   North Dakota       • • Ohio       • • Oklahoma       • • Oregon     •   • Pennsylvania       •   Rhode Island           South Carolina       • • South Dakota       • • Tennessee       • • Texas       • • Utah       • • Vermont •         Virginia       • • Washington     • •   West Virginia       •   Wisconsin       • • Wyoming       •   Totals 6 2 6 36 30 1 In Connecticut, civil unions will be offered until Oct. 1, 2010; after that date, couples in civil unions automatically will be converted to marriage. 2 Amendment does not ban same-sex marriage, but stipulates that only the legislature, not the courts, can define marriage.

Until 2004, same-sex couples couldn’t wed anywhere in the country. Now, gay marriage is legal in Massachusetts, Connecticut, Iowa, Vermont, Maine and most recently New Hampshire. 

Despite these historic strides by the gay rights movement, though, the United States is still a nation divided over whether to redefine marriage.

The California Supreme Court on May 26 upheld the state’s voter-approved constitutional ban on gay marriage, but ruled that some 18,000 same-sex couples who wed before Proposition 8 took effect would still be married under state law. 

Twenty-nine other states have enshrined voter-approved prohibitions blocking same-sex marriage in their state constitution as a way to keep state judges from overturning the bans.

In polls, a majority of Americans still oppose full marriage rights for same-sex couples, though the margins are narrowing.

The Northeast is growing as a stronghold of government recognition of same-sex relationships, with legal wedlock in five states -- including Vermont as of Sept. 1, 2009, and Maine as of Sept. 16, if the law is not suspended because of a voter movement to repeal it, and New Hampshire as of Jan. 1, 2010.  In the same region, Maine, Connecticut, New Jersey and the District of Columbia also offer legal alternatives known as civil unions and domestic partnerships. New York and Rhode Island recognize out-of-state marriages of gay partners.

On the West Coast, California, Oregon and Washington offer same-sex couples all state-level marriage benefits under domestic partnerships laws. Nevada and Hawaii have domestic partnership laws that offer some, but not all marriage benefits.

Iowa is the first heartland state to recognize gay marriage, effective April 24, 2009, following a unanimous state Supreme Court decision April 3.

Further change is possible in 2009. In April 2009, New York Gov. David Paterson (D) proposed a bill to legalize gay marriage, following his 2008 decision that the state would recognize same-sex marriages performed out-of-state.  In New Jersey and the District of Columbia, prominent lawmakers support moving from marriage alternatives to full marriage rights.

In 1996, then-President Bill Clinton signed the Defense of Marriage Act (DOMA) , codifying states’ rights to decide whether to allow or ban same-sex marriage and defining marriage as a union between a man and a woman for federal purposes, such as claiming tax breaks for spouses and receiving deceased partners’ Social Security benefits. The law also spelled out a state’s right to refuse to recognize gay marriages performed in other states.

During George W. Bush’s presidency, Congress tried twice but failed to muster the necessary votes to amend the U.S. Constitution to prohibit gay marriage. President Barack Obama and many in Congress have staked out a middle ground on the issue, recommending states adopt marriage alternatives, but so far, no one on Capitol Hill has proposed a change in federal marriage laws.

Congressional attitudes toward gay marriage could be tested, however, by a District of Columbia plan to recognize out-of-state same-sex marriages. Congress must approve all bills affecting the U.S. capital city. D.C. also may consider a measure to legalize same-sex marriage.

In this 50-state rundown, Stateline.org maps the state of play in all 50 states, including landmark court decisions, voter referendums, state legislation and federal and international laws.

History of state bans

Massachusetts’ historic 2003 high court ruling finding it unconstitutional to deny same-sex couples the right to marry touched off the current political frenzy over the issue. But the first leap toward recognizing gay marriage rights came in 1993, when Hawaii’s Supreme Court sided with a same-sex couple.

Rather than risk a high court order to recognize gay marriages, Hawaiian voters in 1998 rewrote their state constitution to give lawmakers, not the courts, the right to define marriage, and lawmakers subsequently voted to prohibit gay nuptials. 

The Hawaii case sparked action in Congress, resulting in then-President Bill Clinton signing the Defense of Marriage Act (DOMA) in 1996.

Three states soon adopted constitutional marriage bans: Alaska (1998), Nebraska (2000) and Nevada (2000). And 42 states enacted statutes similar to the federal DOMA, although three of those laws have since been overturned.

After Massachusetts’ 2003 court ruling, statutory bans were seen as providing limited protection because judges could throw out the laws if they violated state constitutional rights. As a result, voters in 13 states in 2004 rushed to rewrite their constitutions to limit marriage to heterosexuals. Two more states passed constitutional bans on gay marriage in 2005 and eight more in 2006. Arizona in 2006 became the first and only state to reject a ballot initiative to ban same-sex marriage, but voted in favor of a ban in 2008. California and Florida approved constitutional bans in 2008.

Court decisions and pending cases

As with many U.S. civil rights issues, courts have held the keys to marriage rights for homosexual couples. Only Vermont has enacted a statute legalizing same-sex matrimony, although California lawmakers in 2005 and 2006 passed bills that Republican Gov. Arnold Schwarzenegger vetoed.

Iowa’s court decision in April 2009 mirrors those in Massachusetts (2003), California (2008) and Connecticut (2008), which ruled marriage between two people of the same sex was a guaranteed civil right. 

But high courts in Maryland (2007), New York (2006) and Washington state (2006) have taken the opposite position, ruling against gay couples’ claims that matrimony is a state right. Two other courts, New Jersey (2006) and Vermont (1999), ruled that same-sex couples have the right to the benefits of marriage, but not the title.

Pending, is a federal court case filed in Massachusetts in March 2009, seeking federal marriage rights – including the marriage tax break and Social Security benefits – for couples who wed in states that allow it.  Also pending is a federal case filed in San Francisco in May 2009, seeking to overturn California’s Proposition 8 under equal rights protections in the U.S. Constitution.

Where same-sex marriage is legal

Street celebrations marked the first same-sex weddings when Massachusetts began performing gay nuptials on May 17, 2004. On Feb. 10, 2004, San Francisco Mayor Gavin Newsome began performing same-sex marriages, and officials in Sandoval County, N.M., and New Paltz, N.Y., followed his lead – although courts later ruled those marriages invalid.

On June 16, 2008, California began issuing marriage licenses to same-sex couples, following a May 15, 2008, high court decision. According to the University of California Los Angeles Law School, about 18,000 couples married before the decision was struck down by voters on Election Day 2008, and the state’s high court has ruled their marriages are valid.

Connecticut began granting marriage certificates to spouses of the same gender Nov. 12, 2008, under an Oct.10, 2008, court decision. Iowa’s high court ruled in favor of same-sex marriages April 3, 2009, and marriages were performed starting April 24. 

Overriding a veto by Republican Gov. Jim Douglas, the Democratic-controlled Vermont Legislature legalized gay marriage in April 2009, and wedding licenses were slated to be issued starting Sept. 1, 2009.

On May 6, 2009, Maine Gov. John Baldacci (D) became the first governor to sign a gay marriage law without a court order compelling him to do so. Marriages will begin on or about Sept. 16, unless a voter movement to repeal the new law gathers enough signatures by Sept. 15 to put the issue on the ballot.

On June 3, 2009, New Hampshire Gov. John Lynch (D), signed a bill legalizing gay marriage and a separate bill providing legal protections for religious organizations and their employees who choose not to participate in such weddings. Marriages will begin Jan. 1, 2010.

In addition, New York’s Paterson ruled in 2008 that his state would recognize same-sex marriages performed in other states, and Rhode Island Attorney General Patrick Lynch in 2007 advised the state to honor gay marriages performed elsewhere. The District of Columbia city council also voted April 7 to recognize gay marriages performed elsewhere.

Federal gay marriage policies

President Obama has said he believes that "marriage is between a man and a woman," but he voted against a proposed amendment to the U.S. Constitution to ban same-sex marriage as a U.S. senator, saying the decision should be left up to states. He said he encourages states to adopt marriage alternatives such as civil unions and domestic partnerships.

Congress tried twice – in 2004 and 2006 – but in spite of support by President Bush, the measures failed to muster the two-thirds support needed for an amendment to the U.S. Constitution to ban same-sex marriage nationwide.

Public opinion

Meanwhile, the number of same-sex couples with marriage licenses grows. At least 18,000 couples seized a brief opportunity to marry in California in 2008, more than 12,000 have tied the knot in Massachusetts and several thousand in Connecticut.

Political and legal experts say the growing number of same-sex couples in the country will create social and ultimately political pressure toward greater liberalization of state marriage laws. New legal challenges will emerge as married same-sex couples return or relocate to states that do not recognize marriage rights.

But voters’ rejection of gay marriage in California – a social trendsetter and home to hundreds of thousands of gay couples – drove home the shortcomings in public support. While most Americans support marriage alternatives such as civil unions, a majority oppose use of the title, according to recent polls.

Forty-nine percent of Americans oppose same-sex marriage while 38 percent approve of it, according to a May 2008 national poll by the Pew Research Center for the People & the Press, which like Stateline.org is supported by The Pew Charitable Trusts. The results show a softening of attitudes toward gay marriage since a July 2004 poll by the Pew Research Center in which 56 percent opposed and 32 percent supported legal matrimony by gays and lesbians.

Civil unions and domestic partnerships

Gay couples have gained greater acceptance in eight states with marriage alternatives, including domestic partnerships and civil unions: California, Connecticut, Hawaii, Maine, Nevada, New Jersey, Oregon and Washington state. Now that marriage is legal in Connecticut, New Hampshire and Vermont, civil union laws are being phased out and couples in civil unions are being converted to marriage.

First enacted by Hawaii in 1997, domestic partnerships vary in the number of benefits and responsibilities they bestow. Hawaii’s law is limited, as are laws in Maine (2004) and Nevada (2009). But California (1999), Oregon (2007) and Washington state (2009) give gay couples all of the legal rights enjoyed by heterosexual couples, including tax breaks, rights to hospital visits, approval of organ donations and inheritance without a will.

In 2000, Vermont became the first state to create an institution just short of marriage called civil unions after the state’s high court ruled gay couples must have all the rights of marriage, but not necessarily the title. In 2005, Connecticut became the first state to adopt civil unions without a court order. Also under high court orders, New Jersey adopted a civil union law in 2006, and New Hampshire adopted one in 2007. 

International laws

Outside the United States, same-sex marriage is slowly gaining ground. The Netherlands legalized gay marriage in 2001, followed by Belgium and the Canadian provinces of Ontario and British Columbia in 2003; Quebec, Canada, in 2004; Spain and all other Canadian provinces in 2005; South Africa in 2006; and Norway in June 2008. Sweden was scheduled to begin performing same-sex marriages May 1, 2009.

3 states, including Calif., ban gay marriage (11/5/2008)
Calif. gay marriage ruling sparks new debate (5/16/2008)
States at odds over gay marriage recognition (6/12/2008)
Gay marriage decisions ripe in Calif., Conn.  (3/1/2007)
50-state rundown on gay marriage laws (11/3/2004)
Same-Sex Couples Seek Marriage Rights (12/19/2002)

Contact Christine Vestal at cvestal@stateline.org.