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Same Sex Marriage Overview

Defining Marriage: State Defense of Marriage Laws and Same-Sex Marriage

3/26/2014

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New Development: Federal Judge Rules Michigan Same-Sex Marriage Ban Unconstitutional

State legislatures and voters have made sweeping changes over the past two decades in laws defining whether marriage is limited to relationships between a man and a woman or is extended to same-sex couples. Thirty-three states currently define marriage as a relationship between a man and a woman and prohibit same-sex marriages, while seventeen states and the District of Columbia allow same-sex marriage. These contrasting state laws concerning same-sex marriage reflect sharp divergence in the views toward marriage and same-sex marriage across the country.

On March 21, a federal judge in Michigan ruled that state's ban on same-sex marriage is unconstitutional. This ruling joins with similar rulings in Virginia, Kentucky, Texas, Oklahoma and Utah. Shortly after the decision was made a stay was issued.

The New Mexico Supreme Court ruled on Dec. 19, 2013, that same-sex couples are allowed to marry. Before the ruling, New Mexico was the only state without a law or constitutional provision explicitly banning or allowing same-sex marriage. Some county officials had issued marriage licenses to same-sex couples in previous years. After the U.S. Supreme Court ruling in June 2013, the state asked the New Mexico Supreme Court to make a decision regarding their state policy. The state Supreme Court heard arguments in October and ruled on Dec. 19, 2013, that same-sex couples in the state were allowed to marry. The ruling goes into effect immediately.

The New Mexico court ruling makes it eight states where same-sex marriages were made legal this year, joining Hawaii, Illinois, Delaware, Minnesota, Rhode Island (all through legislation) and California and New Jersey (through court decisions).

States are strongly divided on same-sex marriage. Thirty-three states prohibit same-sex marriage, including 29 states that have prohibitions in their state constitutions. With New Mexico, 17 states along with the District of Columbia allow 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 three allow same-sex marriage as a result of court decisions. In six of the states that adopted same-sex marriage by legislation, they overturned previous statutes that prohibited same-sex marriage. (None of these states had constitutional provisions prohibiting same-sex marriage.)

The scope for continued legislative change is limited. Of the 33 states that do not allow same-sex marriage, 29 have constitutional provisions that require popular votes, usually alongside legislative action. Efforts to overturn constitutional prohibitions have begun in several states and litigation has also been initiated in several states.

 

State Defense of Marriage Acts and Same-Sex Marriage Laws 

50 state map

 

Quick facts on key provisions

Quick facts on key provisions

State law and/or constitutional provision limits marriage to relationships between a man and a woman (29 states with constitutional provisions and a further six states with statutory provisions):

Constitutional provisions: Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan***, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma***, Oregon, South Carolina, South Dakota, Tennessee, Texas***, Utah***, Virginia***, Wisconsin.

*** Utah's provision was ruled unconstitutional by a federal judge in December 2013. In January 2014, a federal judge ruled Oklahoma's ban also to be unconstitutional. In February 2014, federal judges in Virginia and Texas ruled their ban unconstitutional. In March 2014, federal judges in Michigan ruled their ban unconstitutional. All five cases are pending appeal.

Statutory provisions: Indiana, Pennsylvania, West Virginia and Wyoming.

State laws or court decisions that allow same-sex couples to marry (17 states and D.C.)

California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, Washington and the District of Columbia.

****In December 2013, a federal judge ruled that state's ban on same-sex marriage to be unconstitutional. The U.S. Supreme Court has put a stay on the Utah ruling pending a final decision by the U.S. 10th Circuit Court of Appeals. No new licenses are allowed; it is unclear what happens to those already issued marriage licenses during the time when same-sex marriage was legal.

States allows civil unions, providing state-level spousal rights to same-sex couples (Three states):

Colorado, Hawaii, Illinois, New Jersey*.

*It is not yet clear how the court decision in New Jersey will affect civil unions in that state. The legislation in Hawaii and Illinois maintain civil unions alongside same-sex marriage.

Colorado also has a statute and a constitutional provision limiting marriage to relationships between a man and a woman.

Note:  In Connecticut, Delaware, New Hampshire, Rhode Island and Vermont, same-sex marriage has replaced civil unions.

State grants nearly all state-level spousal rights to unmarried couples (domestic partnerships)* (Three states):

Nevada, Oregon and Washington**
**Effective June 30, 2014, domestic partnerships in Washington will be limited to couples who are 62 years of age or older.

State provides some state-level spousal rights to unmarried couples (domestic partnerships)*:

Hawaii, Maine, Wisconsin and the District of Columbia

*Please note that these state rights are broadly available in the state and not limited to a particular subgroup. For example, some states provide certain benefits to domestic partners who are state employees. These states are not included in this summary.

History and Overview

State legislatures have been deeply involved in the public debates about how to define marriage and whether the official recognition of “marriage” should be limited to relationships involving one man and one woman or that same-sex couples should also be entitled to “marriage.” State legislatures have gone both ways in this debate: either enacting “defense of marriage” laws and constitutional provisions or, going the opposite direction, adopting laws allowing same sex marriage.

Most states have adopted prohibitions of same-sex marriage. Most states did so by adopting “defense of marriage” language that defines marriage in their state  constitution and/or state law in a way similar to the language in the federal Defense of Marriage Act (DOMA) —“the word 'marriage' means only a legal union between one man and one woman as husband and wife.” Other states prohibit same sex marriages or marriages between persons of the same sex or gender. Twenty-nine states have placed that language in their state constitutions (26 of these states also have statutory provisions adopting this language). A further four states have statutory language adopting the restrictive language.

Seventeen states and the District of Columbia currently allow same-sex marriages. In New Mexico, Massachusetts, Connecticut, and Iowa, the courts ruled that the state constitution required that same-sex couples be accorded the same marriage rights as opposite-sex couples. In Vermont, New Hampshire, Connecticut (following the state court decision), the District of Columbia, New York, Maryland, Washington, Rhode Island and Delaware legislative bodies have passed statutory changes that allow same-sex marriages. In Maine, the legislature passed a same-sex marriage law in 2009, which was repealed in a voter referendum. In 2012, Maine voters reversed course and approved a same-sex marriage statute. The U.S. Supreme Court on June 26, 2013, declined to hear the appeal overruling California's Proposition 8, reinstating the federal district court decision allowing same-sex marriages. New Jersey's court decision to establish same-sex marriage took effect on October 21, 2013. Hawaii and Illinois adopted legislation late in 2013 to allow same-sex marriage. New Mexico's Supreme Court ruled on December 19, 2013 that same-sex couples in the state are allowed to marry. A federal judge in Utah ruled the state's ban on same-sex marriage to be unconstitutional in December 2013, but this case is pending appeal. Same-sex marriage is not allowed in Utah. The same is true in Oklahoma where a federal judge in January 2014 ruled the state's ban unconstitutional. The decision was immediately stayed pending appeal.

Several states have also expanded the legal rights available to spouses in same-sex relationships while also limiting marriage to opposite-sex couples with civil unions and domestic partnerships.

  • Four states allow civil unions available to both same-sex and opposite-sex couples. Civil unions provide legal recognition to the couples’ relationship while providing legal rights to the partners similar to those accorded to spouses in marriages.
  • Two states (Nevada and Oregon) have adopted broad domestic partnerships that grant nearly all state-level spousal rights to unmarried couples. In Nevada, domestic partnerships are available to both same-sex and opposite-sex couples.

Divorces of same-sex marriages and dissolution of civil unions remain a challenge for same-sex couples in many states.  Divorce laws generally depend on the state or states of residence, rather than the state where the marriage was granted.

  • Same-sex couples who live in a state where same-sex marriages are allowed may obtain a divorce according to the laws of that state, regardless of where the marriage was granted.
     
  • Same-sex couples who are married or in civil unions and who live in states that allow civil unions can also dissolve their legal relationship.  Colorado, Hawaii, Illinois and New Jersey allow civil unions.
     
  • Same-sex couples living in states that do not allow same-sex marriages often cannot get divorced in their home state because the marriage is not recognized, even for the limited purpose of divorce.
    • At least three states that do not allow same-sex marriage do allow divorces of resident same-sex couples: Arizona, New Mexico and Wyoming.
  • Same-sex couples living in states that do not allow same-sex marriages usually cannot simply go back to the state where they married or another state that allows same-sex marriage to get a divorce.  Residency requirements for divorce (often 90 days or longer) can make divorce impractical in the state where the couple was married.
    • Access to divorce for non-resident couples may be expanding.  In the past two years, three states (Vermont, Delaware and Minnesota) and D.C. allow couples married in that state to get a divorce without having to meet the residency requirements that normally apply.

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