American Perspective on Same-Sex Marriage

American Perspective on Same-Sex Marriage

American Perspective on Same-Sex Marriage

In the United States, the availability of legally recognized same-sex marriage expanded from one state in 2004 to all fifty states in 2015 through various state and federal court rulings, state legislation, and direct popular votes.

The fifty states each have separate marriage laws, which must adhere to rulings by the Supreme Court of the United States that recognize marriage as a fundamental right that is guaranteed by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, as first established in the 1967 landmark civil rights case of Loving v. Virginia.

Civil rights campaigning in support of marriage without distinction as to sex or sexual orientation began in the 1970s.[1] In 1972, the now overturned Baker v. Nelson saw the Supreme Court of the United States decline to become involved.[2]

The issue became prominent from around 1993, when the Supreme Court of Hawaii ruled in Baehr v. Lewin that it was unconstitutional under the Constitution of Hawaii for the state to abridge marriage on the basis of sex. That ruling led to federal and state actions to explicitly abridge marriage on the basis of sex in order to prevent the marriages of same-sex couples from being recognized by law, the most prominent of which was the 1996 federal Defense of Marriage Act (DOMA).

In 2003, the Massachusetts Supreme Judicial Court ruled in Goodridge v. Department of Public Health that it was unconstitutional under the Constitution of Massachusetts for the state to abridge marriage on the basis of sex. From 2004 through to 2015, as the tide of public opinion continued to move towards support of same-sex marriage, various state court rulings, state legislation, direct popular votes (referendums and initiatives), and federal court rulings established same-sex marriage in thirty-six of the fifty states.

The first two decades of the 21st century saw same-sex marriage receive support from prominent figures in the civil rights movement, including Coretta Scott King, John Lewis, Julian Bond, and Mildred Loving.[3]

In May 2011, national public support for same-sex marriage rose above 50% for the first time.[4] In May 2012, the NAACP, the leading African-American civil rights organization, declared its support for same-sex marriage and stated that it is a civil right.[5] In June 2013, the Supreme Court of the United States struck down DOMA for violating the Fifth Amendment to the United States Constitution in the landmark civil rights case of United States v. Windsor, leading to federal recognition of same-sex marriage, with federal benefits for married couples connected to either the state of residence or the state in which the marriage was solemnized. In May 2015, national public support for same-sex marriage rose to 60% for the first time.

In June 2015, the Supreme Court ruled in the landmark civil rights case of Obergefell v. Hodges that the fundamental right of same-sex couples to marry on the same terms and conditions as opposite-sex couples, with all the accompanying rights and responsibilities, is guaranteed by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

The most prominent supporters of same-sex marriage are human rights and civil rights organizations, while the most prominent opponents are religious groups. The ruling of the Supreme Court in Obergefell occurred following decades of consistently rising national public support for same-sex marriage in the United States, with support continuing to rise thereafter.

A study of nationwide data from January 1999 to December 2015 revealed that the establishment of same-sex marriage is associated with a significant reduction in the rate of attempted suicide among teens, with the effect being concentrated among teens of a minority sexual orientation, resulting in approximately 134,000 fewer teens attempting suicide each year in the United States.

The history of same-sex marriage in the United States dates from the early 1970s, when the first lawsuits seeking legal recognition of same-sex relationships brought the question of civil marriage rights and benefits for same-sex couples to public attention, though they proved unsuccessful.[6] The subject became increasingly prominent in U.S. politics following the 1993 Hawaii Supreme Court decision in Baehr v. Miike that suggested the possibility that the state’s prohibition might be unconstitutional. That decision was met by actions at both the federal and state level to restrict marriage to male-female couples, notably the enactment at the federal level of the Defense of Marriage Act (DOMA).

On May 17, 2004, Massachusetts became the first U.S. state and the sixth jurisdiction in the world to legalize same-sex marriage following the Supreme Judicial Court’s decision in Goodridge v. Department of Public Health six months earlier. Just as with the Hawaii decision, the legalization of same-sex marriage in Massachusetts provoked a reaction from opponents that resulted in further legal restrictions being written into state statutes and constitutions.

The movement to obtain marriage rights for same-sex couples expanded steadily from that time until in late 2014 lawsuits had been brought in every state that still denied marriage licenses to same-sex couples.

By late 2014, same-sex marriage had become legal in states that contained more than 70% of the United States population. In some jurisdictions, legalization came through the action of state courts or the enactment of state legislation. More frequently it came as the result of the decisions of federal courts.

On November 6, 2012, Maine, Maryland, and Washington became the first states to legalize same-sex marriage through popular vote. Same-sex marriage had been legalized in the District of Columbia and 21 Native American tribal nations as well.

The June 2013 decision of the U.S. Supreme Court in United States v. Windsor striking down the law barring federal recognition of same-sex marriage gave significant impetus to the progress of lawsuits that challenged state bans on same-sex marriage in federal court. Since that decision, with only a few exceptions, U.S. District Courts and Courts of Appeals have found state bans on same-sex marriage unconstitutional, as have several state courts.

The exceptions have been a state court in Tennessee, U.S. district courts in Louisiana and Puerto Rico, and the U.S. Court of Appeals for the Sixth Circuit. The U.S. Supreme Court agreed to hear appeals from that circuit’s decision.

On June 26, 2015, the U.S. Supreme Court struck down all state bans on same-sex marriage, legalized it in all fifty states, and required states to honor out-of-state same-sex marriage licenses in the case Obergefell v. Hodges.

The legal issues surrounding same-sex marriage in the United States are determined by the nation’s federal system of government, in which the status of a person, including marital status, is determined in large measure by the individual states.

Prior to 1996, the federal government did not define marriage; any marriage recognized by a state was recognized, even if that marriage was not recognized by one or more states, as was the case until 1967 with interracial marriage, which some states banned by statute.

Prior to 2004, same-sex marriage was not performed or recognized in any U.S. jurisdiction, but subsequently began to be performed and recognized by law in different jurisdictions through legislation, court rulings, tribal council rulings, and popular referenda.

The Supreme Court’s ruling in Obergefell v. Hodges ended all inter-state legal complications surrounding same-sex marriage, as it orders states to both perform the marriages of same-sex couples and to recognize the marriages of same-sex couples performed in other states.

According to the Government Accountability Office (GAO) in 2004, more than 1,138 federal rights and protections are conferred to U.S. citizens upon marriage; areas affected include Social Security benefits, veterans’ benefits, health insurance, Medicaid, hospital visitation, estate taxes, retirement savings, pensions, family leave, and immigration law. Since July 9, 2015, married same-sex couples throughout the United States have had equal access to all the federal benefits that married opposite-sex couples have.

The Defense of Marriage Act (DOMA) was enacted in 1996. DOMA’s Section 2 says that no state needs to recognize the legal validity of a same-sex relationship even if recognized as marriage by another state. It purports to relieve a state of its reciprocal obligation to honor the laws of other states as required by the Constitution’s Full Faith and Credit Clause.

Even before DOMA, however, states sometimes refused to recognize a marriage from another jurisdiction if it was counter to its “strongly held public policies”. Most lawsuits that sought to require a state to recognize a marriage established in another jurisdiction argue on the basis of equal protection and due process, not the Full Faith and Credit Clause.[7]

DOMA’s Section 3 defined marriage for the purposes of federal law as a union of one man and one woman. It was challenged in the federal courts. On July 8, 2010, Judge Joseph Tauro of the District Court of Massachusetts held that the denial of federal rights and benefits to lawfully married Massachusetts same-sex couples is unconstitutional under the Equal Protection Clause of the U.S. Constitution.

Beginning in 2010, eight federal courts found DOMA Section 3 unconstitutional in cases involving bankruptcy, public employee benefits, estate taxes, and immigration. On October 18, 2012, the Second Circuit Court of Appeals became the first court to hold sexual orientation to be a quasi-suspect classification and applied intermediate scrutiny to strike down Section 3 of DOMA as unconstitutional in Windsor v. United States. The U.S. Supreme Court ruled in Windsor on June 26, 2013, that Section 3 violated the Fifth Amendment.

As a result of the Windsor decision, married same-sex couples—regardless of domicile—have federal tax benefits (including the ability to file joint federal income tax returns), military benefits, federal employment benefits, and immigration benefits. In February 2014, the Justice Department expanded federal recognition of same-sex marriages to include bankruptcies, prison visits, survivor benefits and refusing to testify against a spouse.

Likewise, in June 2014, family medical leave benefits under the Family Medical Leave Act 1975 were extended to married same-sex couples. With respect to social security and veterans benefits, same-sex married couples are eligible for full benefits from the Veterans Affairs (VA) and the Social Security Administration (SSA). Prior to the Supreme Court’s ruling in Obergefell v. Hodges on June 26, 2015, the VA and SSA could provide only limited benefits to married same-sex couples living in states where same-sex marriage was not legal.

Effective March 27, 2015, the definition of spouse under the Family and Medical Leave Act of 1993 includes employees in a same-sex marriage regardless of state of residence. Following the Obergefell decision, the Justice Department extended all federal marriage benefits to married same-sex couples nationwide.

The federal government recognizes the marriages of same-sex couples who married in certain states in which same-sex marriage was legal for brief periods between the time a court order allowed such couples to marry and that court order was stayed, including Michigan. It also recognized marriages performed in Utah from December 20, 2013 to January 6, 2014, even while the state didn’t.

Under similar circumstances, it never took a position on Indiana or Wisconsin’s marriages performed in brief periods, though it did recognize them once the respective states announced they would do so. It had not taken a position with respect to similar marriages in Arkansas prior to the Obergefell decision legalizing and recognizing same-sex marriages in all fifty states.

Opponents of same-sex marriage have worked to prevent individual states from recognizing same-sex unions by attempting to amend the United States Constitution to restrict marriage to heterosexual unions. In 2006, the Federal Marriage Amendment, which would have prohibited states from recognizing same-sex marriages, was approved by the Senate Judiciary Committee on a party-line vote and was debated by the full Senate, but was ultimately defeated in both houses of Congress. On April 2, 2014, the Alabama House of Representatives adopted a resolution calling for a constitutional convention to propose an amendment to ban same-sex marriage nationwide.

Same-sex marriages are licensed in and recognized by all U.S. states and the District of Columbia, as well as all U.S. territories except American Samoa. On July 3, 2015, the Attorney General for American Samoa stated “we are reviewing the opinion [Obergefell v. Hodges] and its potential applicability to American Samoa, and will provide comment when it is completed.”[8]

Currently, same-sex marriages are neither licensed nor recognized there. On January 6, 2016, Alabama’s Chief Justice, Roy Moore, issued a ruling forbidding state officials from issuing marriage licenses to same-sex couples. The ruling had no effect as all Alabama counties continued either issuing marriage licenses to all couples or not issuing licenses at all. In May 2016, Moore was charged with ethics violations by the state Judicial Inquiry Commission for the ruling, subsequently being suspended from the bench for the remainder of his term on September 30 of that year.

Officials of one Texas County, Irion, issued marriage licenses, but claimed they would refuse same-sex couples. Starting in 2017, they refused to comment on what they would do if same-sex couples were to apply for license. However, as of March 2020, Irion County clerk stated she would issue marriage licenses to same-sex couples and the form available on the office’s website was not gender specific and stated no restrictions as to the genders of the applicants.

Officials in several Alabama counties initially stopped issuing any marriage licenses rather than issue them to same-sex couples. By 2017, the number of counties doing this to avoid issuing them to same-sex couples dropped to eight. This was in accordance with a state law, which was passed in 1961 to preserve racial segregation by making it optional for county clerks to issue marriage licenses. The Alabama Legislature passed a bill replacing marriage licenses with marriage certificates in May 2019. These final eight counties resumed allowing couples to marry on August 29, 2019.[9]

Several Kentucky counties initially refused to marry same-sex couples. In response, Kentucky reformed its marriage license forms and removed the name of the county clerk from the licenses. As of June 2016, Chris Hartmann, director of the Kentucky-based Fairness Campaign, said that to his knowledge “there are no counties where marriage licenses are being denied” in his state.

Post-Obergefell, six states have, on occasion, attempted to deny same-sex couples full adoption rights to varying degrees. In Arkansas, Florida, Indiana, and Wisconsin, same-sex couples have been met with rejection when trying to get both parents’ names listed on the birth certificate.

In V.L. v. E.L., Alabama’s highest court attempted to void an adoption decree obtained by a same-sex couple in Georgia, but the U.S. Supreme Court reversed, restoring joint custody to the adoptive mother on March 7, 2016. Mississippi had once banned same-sex couples from adopting, but the law requiring this was ruled unconstitutional by the United States District Court for the Southern District of Mississippi on March 31, 2016. With that ruling, adoption by same-sex couples became legal in all fifty states.[10]

On June 26, 2017, the Supreme Court ruled by a 6–3 vote in the case of Pavan v. Smith that under their decision in Obergefell, same-sex couples must be treated equally to opposite-sex couples in the issuance of birth certificates. In December 2016, the Supreme Court of Arkansas upheld a state law only allowing opposite-sex couples to be automatically listed as parents on their children’s birth certificates, while prohibiting same-sex couples from being allowed the same on an equal basis. The Supreme Court summarily reversed the Arkansas Supreme Court, finding that the disparity in treatment violated their decision in Obergefell.

Prior to Obergefell, same-sex marriage was legal to at least some degree in thirty-eight states, one territory (Guam) and the District of Columbia; of the states, Missouri, Kansas, and Alabama had restrictions. Until United States v. Windsor, it was only legal in 12 states and the District of Columbia. Beginning in July 2013, over forty federal and state courts cited Windsor to strike down state bans on the licensing or recognition of same-sex marriage.

Missouri recognized same-sex marriages from out of state and same-sex marriages licensed by the City of St. Louis under two separate state court orders; two other jurisdictions issued such licenses as well. In Kansas, marriage licenses were available to same-sex couples in most counties, but the state did not recognize their validity.

Some counties in Alabama issued marriage licenses to same-sex couples for three weeks until the state Supreme Court ordered probate judges to stop doing so. That court’s ruling did not address the recognition of same-sex marriages already licensed in Alabama, but referred to them as “purported ‘marriage licenses'”.

In two additional states, same-sex marriages were previously legal between the time their bans were struck down and then stayed. Michigan recognized the validity of more than 300 marriage licenses issued to same-sex couples and those marriages. Arkansas recognized the more than 500 marriage licenses issued to same-sex couples there, and the Federal Government had not taken a position on Arkansas’s marriage licenses.

President Barack Obama’s views on same-sex marriage varied over the course of his political career and became more consistently supportive of same-sex marriage rights over time. In the 1990s, he had supported same-sex marriage while campaigning for the Illinois Senate.[11] During the 2008 presidential campaign, he was opposed to same-sex marriage,[12] but he also opposed the 2008 California referendum that aimed at reversing a court ruling establishing same-sex marriage there.

In 2009, he opposed two opposing federal legislative proposals that would have banned or established same-sex marriage nationally, stating that each state had to decide the issue. In December 2010, he expressed support for civil unions with rights equivalent to marriage and for federal recognition of same-sex relationships.

He opposed a federal constitutional amendment to ban same-sex marriage. He also stated that his position on same-sex marriage was “evolving” and that he recognized that civil unions from the perspective of same-sex couples were “not enough”. On May 9, 2012, President Obama became the first sitting president to support same-sex marriage. He still said the legal question belonged to the states. In October 2014, Obama told an interviewer that his view had changed:

Ultimately, I think the Equal Protection Clause does guarantee same-sex marriage in all fifty states. But, as you know, courts have always been strategic. There have been times where the stars were aligned and the Court, like a thunderbolt, issues a ruling like Brown v. Board of Education, but that’s pretty rare. And, given the direction of society, for the Court to have allowed the process to play out the way it has may make the shift less controversial and more lasting.

Shortly after winning the 2016 election, President Donald Trump said he’s “fine” with same-sex marriage and believes it to be settled law: “its law. It was settled in the Supreme Court. I mean, it’s done.”[13] This somewhat contrasted with a previous statement he made in June 2015, after Obergefell v. Hodges, in which he said he’s personally for “traditional marriage” and that he believed same-sex marriage should be left to the states.

In that same statement, however, Trump admitted that overturning Obergefell is not realistic. Several of his federal appointments have also, subsequently, announced they will uphold same-sex marriage and enforce the Supreme Court ruling, while still being personally against same-sex marriage, namely Attorney General Jeff Sessions and Secretary of Education Betsy DeVos.

Former Presidents Bill Clinton, Jimmy Carter, and Barack Obama, former vice presidents Dick Cheney, Al Gore, Walter Mondale, and Joe Biden have voiced their support for same-sex marriage, as have former first ladies Laura Bush, Hillary Clinton, Michelle Obama, and Nancy Reagan.

Former President George H. W. Bush and his wife former First Lady Barbara Bush have served as witnesses to a same-sex wedding, but neither has publicly stated whether this means they support same-sex marriage in general; George W. Bush reportedly offered to officiate the same wedding,[14] but has similarly not made a public statement regarding his position on the issue (as president, he was opposed). Fifteen U.S. senators announced their support in the spring of 2013.

By April 2013, a majority of the Senate had expressed support for same-sex marriage.[15] Senator Rob Portman of Ohio became the first sitting Republican senator to endorse same-sex marriage in March 2013, followed by Senator Mark Kirk of Illinois in April, Senator Lisa Murkowski of Alaska in June, and Senator Susan Collins of Maine a year later.

Until the Supreme Court’s June 2013 ruling in United States v. Windsor required the Federal Government to treat lawfully married same-sex couples on an equal basis with lawfully married opposite-sex couples, same-sex married couples faced severe disadvantages. The Federal Government did not recognize those marriages for any purpose.

According to a 1997 General Accounting Office study, at least 1,049 U.S. federal laws and regulations include references to marital status. A 2004 study by the Congressional Budget Office found 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 whose marriages were not recognized by the Federal Government were ineligible for spousal and survivor Social Security benefits and were ineligible for the benefits of the spouse of a federal government employee. One study found that the difference in Social Security income for same-sex couples compared to opposite-sex married couples was per year.

African Charter and Sexual Rights

[1] The Same-Sex couple who got a marriage license in 1971’ The New York Times May 16, 2015

[2] Andrew Gumbel, ‘The Great Undoing?’ The Advocate July 9, 2012

[3] Michael Long, ‘Coretta’s Big Dream: Coretta Scott King on Gay Rights’ Huffpost July 9, 2018

[4] For First Time, Majority of Americans Favour Legal Gay Marriage’ Gallup May 20, 2011

[5] NAACP, ‘NAACP Passes Resolution in support of Marriage Equality’ NAACP May 20, 2018

[6] Ibid

[7] W T Barrington, ‘DOMA Repeal and the Truth about full faith & Credit’ The Huffington Post September 23, 2014

[8] American Samoa questions gay marriage validity in territory’ The Seattle Times, July 10, 2015

[9] Kirby Brendan, ‘Here’s how getting married in Alabama will change with no

[10] Same-sex couples can now adopt children in all 50 states’ The Huffington Post, march 31, 2016

[11] Report: Obama changed his view on Gay marriage’ Fox News, April 7, 2010

[12] Linkins Jason, ‘Obama once supported same-sex marriage unequivocally’ The Christian Science Monitor, May 12, 2009

[13] GOP President- Elect Donald Trump says same-sex marriage is settled law’ ABC News, November 13, 2016

[14] Johnson Chris, George W Bush sought to officiate same-sex wedding: report’ Washington Blade, May 24, 2015

[15] Miller Sunlen, ‘Majority of Senate supports same-sex marriage’ ABC News, April 2, 2013

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