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Same-Sex Marriage: A Historical Introduction

Within the already controversial realm of gay rights, one of the most controversial topics is same-sex marriage. After extensive litigation, the U.S. Supreme Court ruled that same-sex couples have a fundamental right to marry. As a result, same-sex couples have a legal right to marry and to have their legal marriages recognized in every state.

Civil Rights

For some, the idea that same-sex couples should have the same matrimonial benefits as heterosexual couples has been purely a question of civil rights. According to this argument, the constitutional concepts of Equal Protection and Due Process require that same-sex couples be treated no differently than heterosexual married couples. The Supreme Court largely adopted this position, alongside other arguments, when it issued its landmark Obergefell v. Hodges decision in June of 2015. The ruling explicitly states that same-sex couples have the right to marry and have their marriages recognized throughout the country on the basis of the Equal Protection and Due Process Clauses of the Constitution.

Moral Rights and Family Values

Others have seen same-sex marriage as a moral question, and concluded that such unions violate traditional Judeo-Christian ethical values. Another argument has been that it undermines family values: heterosexual marriage is founded upon the need to procreate, but procreation is biologically impossible for same-sex couples. To counter this argument, those in favor of same-sex marriages have noted that marriage has always been permitted for heterosexual couples who cannot or choose not to procreate. Many of these arguments and their rebuttals appear within the Obergefell decision, with the majority largely adopting the positions against the moral rights and family values positions.

Legal Benefits of Marriage Equality

The debate over gay marriage extended beyond the right to marry alone. Same-sex couples sought the same tax and estate advantages, the same rights to surviving children, the same community property rights, and the same health care benefits as heterosexual couples.

Although same-sex marriages have occurred privately for years, only recently has the issue been litigated. The Hawaii Supreme Court's 1993 decision in Baehr v. Lewin marked the beginning of serious litigation on the topic. After a series of victories and defeats on both sides of the issue, the Supreme Court's 2015 Obergefell ruling finally resolved the issue in favor of extending the right to marry, the recognition of same-sex marriage, and the attendant benefits to same-sex couples throughout the country.

Prop 8 and the Defense of Marriage Act (DOMA)

Prop 8 was a ballot proposition brought by opponents of same-sex marriage to prevent same-sex marriages in California. When Prop 8 passed its opponents filed a lawsuit complaining that the Proposition violated the Due Process and Equal Protection clauses of the Constitution. The private parties that supported the Proposition and got it on the ballot wanted to defend the law, but the State of California itself refused to do so. The U.S. Supreme Court ruled in Hollingsworth v. Perry that private parties lacked standing to defend a state constitutional amendment where the state itself refused to defend it. As a result, the case was dismissed for lack of standing. Prop 8 was consequently invalidated and many feel that the decision set the tone for subsequent decisions.

Similarly, significant portions of the Defense of Marriage Act (DOMA) were ruled unconstitutional by the U.S. Supreme Court in 2013's United States v. Windsor. DOMA was signed into law by President Bill Clinton in 1996 and barred federal recognition of same-sex marriages for purposes of receiving tax, insurance, immigration and other benefits. The Court struck down the federal law, stating that it denies same-sex couples the "equal liberty" guaranteed by the Fifth Amendment. The decision extended the right to federal benefits to legally married same-sex couples.

Marriage Equality Under Obergefell

Finally, in 2015 the U.S. Supreme Court's ruling in Obergefell v. Hodges made it clear that the denial of the right to marry, the refusal to recognize legal same-sex marriages entered into in another state, and the withholding of marriage-related benefits to same-sex married couples were violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. As a result of the decision same-sex marriage will be made available throughout the United States, the states must recognize the legal same-sex marriages of other states, and the rights and privileges of marriage must be extended to same-sex married couples. The decision effectively eliminates all legal distinctions between heterosexual and same-sex marriages at both the state and federal level nationwide.

Consult an Experienced Family Law Attorney

Marriage laws are changing constantly. If you have a question about same-sex marriage, civil unions, or domestic partnership laws in your state, you may wish to contact a family law attorney for assistance. A good lawyer can advise you about the current state of the law and any special legal protections you may want to consider. Remember that it's important to speak to a lawyer familiar with the laws in your jurisdiction. Most offer free consultations, so your first step should be to contact a family attorney who's experienced in same-sex legal issues.

Additional Resources

Here are a few websites that contain additional information regarding the struggle for and against same-sex marriage equality around the nation:

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