Same Sex Marriage Laws
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Updated December 2, 2013
States that Allow Same-Sex Marriage
State legislatures have been deeply involved in the public debates about how to define marriage and whether the official recognition of “marriage” should be extended to same-sex couples. Sixteen states and the District of Columbia currently have laws that allow same-sex marriages.
The Hawaii and Illinois legislatures adopted same-sex marriage legislation in November 2013, becoming the 15th and 16th states to allow same-sex marriage. In October in New Jersey, the State Supreme Court refused to delay a state District Court decision requiring the state to recognize same-sex marriages and the Governor announced that the state would drop its appeal, so that New Jersey now allows same-sex marriages.
Hawaii, Illinois and New Jersey make it seven states where same-sex marriages were made legal in 2013, joining Delaware, Minnesota, Rhode Island (all through legislation) and California (through a federal court decision).
The first states that allowed same-sex marriage did so as a result of a court decision—Massachusetts in 2004, Connecticut in 2008 and Iowa in 2009. Most states and the District of Columbia acted through legislation—Vermont and New Hampshire in 2009, New York in 2011, and Maryland and Washington in 2012. Maine adopted same-sex marriage through a public initiative in 2012. Including the 2013 states, ten states and D.C. have acted through legislation, five through court decisions and one through public initiative.
State Same-Sex Marriage Laws: Legislatures and Courts
The public national discussion around same-sex marriage first began in 1993 when the Hawaii Supreme Court ruled that laws denying same-sex couples the right to marry violated state constitutional equal protection rights unless the state could show a "compelling reason" for such discrimination. Since that time, many states have taken actions to clearly define marriage as a relationship between a man and a woman and others have allowed same-sex couples to marry.
Prior to 1993, seven states had laws that defined marriage as a relationship between a man and a woman. After the Hawaii court decision raised the possibility that states could recognize same sex marriage, 32 state legislatures (including Hawaii) adopted statutory language defining marriage as a relationship between a man and a woman, including Alaska, which adopted both a statute and the nation’s first constitutional provision prohibiting same-sex marriage. Nebraska adopted a constitutional provision limiting marriage to relationships between a man and a woman. As a result, 40 states had statutory and/or constitutional provisions limiting marriage to opposite-sex couples by the end of 2000.
Starting in 2000, some states began recognizing same-sex couples’ relationships. In April 2000, Vermont approved landmark legislation to recognize civil unions between same-sex couples, granting them virtually all the benefits, protections and responsibilities that married couples have under Vermont law. The Vermont legislation was a result of the state Supreme Court ruling in Baker v. Vermont that said same-sex couples are entitled, under the state constitution's "Common Benefits Clause," to the same benefits and protections as married opposite-sex couples. The court ruled that the Vermont General Assembly must decide how to provide these benefits and protections, either by legalizing marriage for same-sex couples or by establishing an alternative system. The Vermont General Assembly chose to preserve marriage as the "legally recognized union of one man and one woman," but at the same time create a parallel system of civil unions for same-sex couples that went beyond existing "domestic partnership" and "reciprocal beneficiaries."
In Nov. 2003, the Massachusetts Supreme Judicial Court ruled that barring same-sex couples from civil marriage was unconstitutional. The Senate then asked the court for an advisory opinion on the constitutionality of a proposed law that would bar same-sex couples from civil marriage but would create civil unions as a parallel institution, with all the same benefits, protections, rights and responsibilities under law. In February, the court answered, "segregating same-sex unions from opposite-sex unions cannot possibly be held rationally to advance or preserve" the governmental aim of encouraging "stable adult relationships for the good of the individual and of the community, especially its children." Under this decision, the state of Massachusetts began issuing marriage licenses to same-sex couples in May 2004. It was the first state to do so.
In 2005, Connecticut became the second state to enact a state law providing civil unions to same-sex couples.
In October 2006, the New Jersey Supreme Court ordered the legislature to redefine marriage to include same-sex couples or to establish a separate legal structure, such as civil unions, to give same-sex couples the same rights as opposite-sex marriage couples. The New Jersey legislature chose to create civil unions in 2007, which gave same-sex couples the same legal rights as married, opposite sex couples.
New Hampshire legislation also created civil unions in 2007, making it the fourth state to adopt that approach.
On May 15, 2008, the California Supreme Court ruled that same-sex couples should have the right to marry. The ruling took effect mid-June and same-sex marriages were performed in California for a short period of time before a ballot initiative challenging the decision was certified in late summer. Proposition 8 proposed a state constitutional amendment that defined marriage as a relationship between a man and a woman. It passed in November 2008, again banning same-sex marriage in California. Proposition 8 was challenged in early 2009, but the California Supreme Court upheld the law in May 2009. In August 2010, a federal district judge ruled that the Proposition 8 ban on same-sex marriages violated the equal protection provisions of the U.S. Constitution. The decision was appealed and enforcement (that would allow same-sex marriages to be performed) was delayed until the case could be heard by the federal appeals court. In February 2012, the U.S. Ninth Circuit Court of Appeals upheld the earlier District Court decision that declared Proposition 8 invalid. The 2-1 decision reinstated the right to marriage for same-sex couples in California. The case was appealed to the U.S. Supreme Court and enforcement was delayed until the Court decided.
In October 2008, the Connecticut Supreme Court ruled that a ban against same-sex marriage was in violation of the equal protection clause in the state constitution. Connecticut became the second state to allow same-sex marriage. In 2009, the Connecticut Legislature passed a statute allowing same sex marriage and ending civil unions.
In April 2009, the Iowa Supreme Court ruled that the state's ban against same-sex marriage was unconstitutional. Iowa began performing same-sex marriages in June 2009.
In April 2009, the Vermont legislature passed a bill allowing same-sex marriage. Governor Douglas vetoed the bill, but the veto was overridden by the legislature. Vermont became the first state where the legislature, without judicial mandate, passed a statute to allow same-sex marriage.
The Maine legislature passed and Governor Baldacci signed legislation in May 2009 allowing same sex marriage; however, opponents successfully petitioned a referendum on the issue for the November ballot. Same-sex marriages were delayed, pending the ballot outcome. Voters approved the referendum, effectively repealing the law in November 2009.
New Hampshire also passed same-sex marriage legislation in June 2009, bringing the total number of states that allowed same-sex marriage to five.
In December 2009, the District of Columbia Council passed a same-sex marriage law, subject to a congressional review period. The law took effect in March 2010.
In June 2011, the New York Assembly passed legislation allowing same-sex marriage. Governor Andrew Cuomo immediately signed the legislation. The law took effect 30 days after signing, making same-sex marriages available in New York in late July 2011.
The pace of state legislative action quickened in 2012. The Washington state legislature and governor approved legislation in February 2012 establishing same-sex marriage. In June 2012 opponents gathered enough signatures to put the issue on the ballot in November. Voters upheld the law and same-sex marriages began on December 6, 2012.
The New Jersey legislature passed a same-sex marriage bill in February 2012, but the measure was vetoed by Governor Christie. The legislature has until January 2014 to over-ride the veto with two-thirds of the Assembly and Senate needed to do so. With the state court decision in October 2013 that the state must recognize same-sex marriage, New Jersey officials are considering whether to pass legislation on same-sex marriage to answer some questions left unanswered in the court decision.
Maryland passed a same-sex marriage bill in February 2012 that was signed by Governor O’Malley on March 1. Opponents of the legislation obtained enough signatures to file a referendum challenging the law. Voters upheld the law and it went into effect on January 1, 2013.
In November 2012, voters in Maine approved a ballot measure legalizing same-sex marriage. It is the first time voters had been asked to legalize same-sex marriage rather than prohibit it. The measure went into effect December 29, 2012.
The Maine initiative and the Washington and Maryland referendum votes to uphold the same-sex marriage laws marked a watershed. They were the first instances of public votes to establish same-sex marriage. On the same date, Minnesota voters voted against a constitutional prohibition of same-sex marriages. Those four votes reversed a long trend of public votes against same sex marriage. Previously, voters in 32 states had consistently voted to limit same-sex marriage. Thirty states had enacted constitutional provisions to define marriage as a relationship between a man and a woman and prohibit same-sex marriages. Between 1998 and May 2012, only one public vote out of 32 had not supported restrictions on same-sex marriage. (In 2006, Arizona voters rejected a constitutional provision prohibiting same-sex marriage and then approved a prohibition in 2008.)
Legislative actions supporting same sex-marriage continued in 2013. Rhode Island passed same-sex marriage legislation and Governor Chafee signed the bill into law on May 2, 2013. The bill converted civil unions to marriage and recognizes civil unions and same sex marriage from other jurisdictions. The law went into effect August 1, 2013.
Delaware passed same-sex marriage legislation and Governor Markell signed the bill into law on May 7, 2013. The law converts civil unions to marriage and recognizes civil unions and same sex marriage from other jurisdictions. The law went into effect July 1, 2013.
Minnesota passed a law allowing same-sex marriage in May 2013. The law went into effect on Aug. 1, 2013.
On June 26, 2013, the U.S. Supreme Court declined to decide the California challenge to Proposition 8, ruling on technical grounds that it did not have jurisdiction. The effect of that decision was to reinstate the federal district court decision overturning Proposition 8, thus allowing same sex marriage in California. Amid some confusion about timing, same-sex marriages began shortly after the decision.
On the same day, the Supreme Court decided a challenge to the federal DOMA law that limited over one thousand federal benefits to marriages defined as a relationship between a man and a woman. It ruled that the restriction violated equal protection and due process for married same-sex couples. The decision emphasized the dominance of state law defining marriage and required the federal government to recognize same-sex marriages granted under state law. Federal agencies are now working through the challenges of how to deal with same-sex couples married in a state that allows same-sex marriage but who now live in a state that does not allow same-sex marriage.
The Court’s federal DOMA decision triggered a challenge to New Jersey’s law providing only civil unions for same-sex couples. The earlier New Jersey Supreme Court decision had required the state to offer the same legal rights to same-sex couples that married, opposite sex couples had. The federal government did not recognize civil unions as marriages so couples in a civil union could not have access to the same federal benefits. The state district court ordered the state to allow same-sex couples to marry, but delayed enforcement of the order for three weeks to allow the state to appeal. The state requested a further delay to allow it to prepare the appeal, but both the district court and the state Supreme Court denied the request on the grounds that the state was unlikely to win on appeal. The order to allow same-sex marriages went into effect and Governor Christie announced that the state would drop its appeal, making same sex marriages legal in New Jersey.
Hawaii held a special session in October and November to consider same-sex marriage legislation. The Senate passed the initial bill on October 30th. The House Finance and Judiciary Committees held joint hearings that ran five days (55 hours of testimony) and included over one thousand people testifying. On November 8th, the House passed the Senate bill with an amendment that strengthened exemptions that allow religious organizations to not provide facilities, goods or services for the marriage or celebration of the marriage if it violates their religious beliefs. The Senate agreed to the amendment. Governor Neil Abercrombie signed the legislation on November 13th. It will take effect on December 2, 2013.
On November 5th, the Illinois House passed SB 10 which had already passed in the Illinois Senate. For several months, House leaders had delayed the vote over concerns the bill might not have enough support. Governor Pat Quinn signed the legislation on November 20th. Same-sex marriages will be available on June 1, 2014.
States are strongly divided on same-sex marriage. While sixteen states and D.C. allow same-sex marriage, thirty-three states prohibit same-sex marriage, including twenty-nine states that placed prohibitions in their state constitutions. One state, New Mexico, has no law either allowing or prohibiting same-sex marriage. Most states that have recently allowed same-sex marriage have done so through legislation. Since the beginning of 2011, eight states have passed legislation, one adopted it by initiative and two allow same-sex marriage as a result of court decisions.
The scope for continued legislative change is limited. Of the thirty-four states that do not allow same-sex marriage, twenty-nine have constitutional provisions that require popular votes, usually alongside legislative action. Efforts to overturn constitutional prohibitions have begun in several states, though no state has yet reversed a constitutional prohibition. Litigation has also been initiated in several states, including New Mexico where the State Supreme Court is expected to release a decision in December about whether to require the state to allow same-sex marriages.