Same-Sex Marriage Law Prior to Marriage Equality

The "traditional" definition of marriage historically did not include gay and lesbian couples, leading to a passionate same-sex marriage debate that raged for many decades. As time passed, however, more states bestowed upon same-sex couples the same rights and responsibilities as traditional married couples, while other states explicitly banned same-sex marriage.

This evolution gained considerable speed following the U.S. Supreme Court's 2013 decision in U.S. v. Windsor, which struck down the clause in the federal Defense of Marriage Act (DOMA) that defined "marriage" and "spouse" as excluding same-sex partners. Ultimately, the U.S. Supreme Court recognized the right of same-sex partners to marry in the 2015 decision, Obergefell v. Hodges.

Prior to Windsor andObergefell

In 1996, Congress passed the Defense of Marriage Act (DOMA). Two provisions of DOMA were particularly significant. One allowed states to refuse to recognize same-sex marriages performed under the laws of other states. The other provided a definition of "marriage" and "spouse" that excluded same-sex couples. This definition controlled over 1,000 federal laws in which marital or spousal status is addressed for purposes of federal benefits. It did not itself ban same-sex marriages, nor did it require states to do so.

Massachusetts was the first state to legalize same-sex marriage, when the state's Supreme Court ruled that the denial of marriage rights to same-sex couples was a violation of the equal protection clause of the Massachusetts Constitution.

California and Proposition 8

California was the second state to allow same-sex marriages, and in subsequent years was the site of some of the most rigorous fighting in the same-sex marriage debate. In 2008, the California Supreme Court ruled in In re Marriage Cases that the state's ban on same-sex marriage violated the state's constitutional provisions regarding equal protection. This ruling effectively made California the largest hot spot for gay and lesbian marriages in the nation for a short time. However, it wasn't long after this decision came down that a ballot measure, known as Proposition 8, made it onto the ballot for the November 2008 election. Prop 8 was written to amend the state constitution to explicitly define a marriage as a legally binding union between a man and a woman. Prop 8 passed on November 4, 2008 by a slim margin, effectively banning same-sex marriages in California.

A vigorous legal battle ensued and a lawsuit was filed by Prop 8 opponents that challenged the validity of the proposition on procedural grounds. Eventually, the California Supreme Court announced that Prop 8 was valid and the state's constitution was amended, meaning that no new same-sex marriages would be performed in California. However, the question remained what would happen to the thousands of same-sex couples that were married between the June 2008 court decision and the November 2008 passage of Prop 8. The California Supreme Court ruled that these marriages were legal when performed, meaning that they still carried legal weight and are valid.

In 2010, Judge Vaughn Walker ruled that Prop 8 was unconstitutional on the grounds that it violated federal due process and equal protection clauses. The Ninth Circuit affirmed the decision, and it was soon appealed to the nation's highest court. In 2013, 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. Therefore, the case was dismissed for lack of standing. This left intact the original district court ruling that Prop 8 was unconstitutional, meaning same-sex couples could marry in California.

Civil Unions

At the time of U.S. v. Windsor, 12 states and the District of Columbia allowed same-sex marriage, either by judicial decision or legislative action. Other states took a different approach. For example, New Jersey did not recognize same-sex marriage but did recognize civil unions. These civil unions offered many of the same rights and responsibilities as a marriage, though these only applied if the couple remained within the state that granted the civil union. Other states recognized domestic partnerships, although the rights afforded to these domestic partnerships varied between states. Hawaii's voters affirmed that marriage was only between a man and a woman, but the state had a system of reciprocal benefits in place for same-sex couples.

Significantly, two major issues showed the difficulty with the patch-work system: 1) how to deal with same-sex marriages that were lawful in the state in which they were performed, but were not recognized by another state which did not allow them (for example, if a couple moved); and 2) how to reconcile the law of states that recognized same-sex marriage, with the denial of federal benefits under DOMA.

U.S. v. Windsor

The Windsor case involved a New York widow, who married her partner in Canada, and her marriage was recognized by the State of New York. Her partner died, and Ms. Windsor was denied the benefit of a spousal deduction for federal estate taxes because DOMA barred recognition of Ms. Windsor as a "spouse." She paid more in federal taxes than she would have if the federal government had recognized her marriage.

The U.S. Supreme Court found that the section of DOMA that limited marriage and spouse to only opposite-sex couples was unconstitutional under the Fifth Amendment of the U.S. Constitution. Writing for the court, Justice Kennedy concluded that New York had protected a class of people, and DOMA took that protection away, resulting in a violation of basic due process and equal protection.

Because the definition in DOMA applied to a wide variety of federal laws, the holding affected many areas, including social security, benefits under the Family & Medical Leave Act, taxes, bankruptcy, immigration, military spousal benefits, to name a few. However, the holding only applied to marriages that were legal under the law of the state. The holding did not apply to same-sex couples in states whose laws did not recognize same-sex marriage.

Obergefell v. Hodges

On June 26, 2015, the U.S. Supreme Court concluded that, under the Fourteenth Amendment of the U.S. Constitution, states must license a marriage between two people of the same sex, and must recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. In that case, Obergefell v. Hodges, fourteen same-sex couples and two men whose same-sex partners were deceased, challenged the laws of their states, raising the following two issues: 1) whether the Fourteenth Amendment requires a state to license a marriage between two people of the same sex; and 2) whether the Fourteenth Amendment requires a state to recognize a same-sex marriage licensed and performed in a state that does not grant that right.

Justice Anthony Kennedy authored a 5-4 decision answering "yes" to both of those questions. After discussing the development of marriage as an institution, and the evolution of the rights of gays and lesbians, the opinion concluded that marriage is a fundamental right that applies with equal force to same-sex couples. Justice Kennedy referenced four principles in reaching this conclusion:

  1. The right to personal choice regarding marriage is inherent in the concept of individual autonomy.
  2. It supports a two-person union unlike any other in its importance to the committed individuals.
  3. It safeguards children and families by providing stability, recognition, and predictability, as well as economic benefits.
  4. Marriage is integral to our country's social order.

"It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality", wrote Kennedy. As such, same-sex couples may not be deprived of the fundamental right to marry, meaning same-sex couples may marry in all states, and states must recognize a lawful same-sex marriage performed in another state.

Chronology of Same-Sex Marriage Decisions

For your reference, here is a chronological history of some of the major same-sex marriage judicial decisions:

Baker v. Nelson (Minnesota, 1971) - A gay couple argued that because the language in the Minnesota statute did not include language of sex-specific marriage, this showed the intent of the legislature to legalize same-sex marriage. The couple also included arguments that denying them the opportunity to marry constituted a violation of due process and equal protection under the Constitution. The court ruled that it could not rule for the couple because there was no legal weight in the case law supporting their position.

Baker v. Nelson (U.S. Supreme Court, 1972) - One line summary decision holding that the exclusion of same-sex couples from marriage did not present a substantial federal question.

Jones v. Hallahan (Kentucky, 1973) - A lesbian couple went to court after they were denied a marriage license. The couple argued that this denial was a violation of the constitutional rights to marry, associate, and freely exercise their religion. The court decided against the couple without addressing their constitutional arguments and simply stated that the union of two women is not a marriage.

Singer v. Hara (Washington, 1974) - A gay couple argued that by denying them the right to marry, the state was violating their equal protection rights. The court decided against the couple, ruling that Washington’s Equal Protection Amendment was put in place to address the differences in legal treatment of men and women on account of sex, and that the denial of the marriage license was permitted by both state and federal constitutions.

Adams v. Howerton (Colorado, 1975) - A gay couple, one American and one Australian, went to court to challenge the Board of Immigration Appeals on their refusal to allow the Australian man from obtaining American citizenship. The couple had been married in Colorado after being issued a marriage license and had then applied for the Australian man's citizenship, citing that he was the spouse of an American. The court ruled against the couple, first deciding that the word "spouse" meant someone of the opposite sex. The court also reasoned that the 1965 amendments to the Immigration Act expressly barred people with "sexual deviations," or homosexuals, from entry into America.

Thorton v. Timmers (Ohio, 1975) - A lesbian couple that was denied a marriage licensed sued. The court denied their request and ruled that the legislature intended that married people be of opposite sex.

De Santo v. Barnsley (Pennsylvania, 1984) - The parties to this lawsuit were a same-sex couple that had split up, with one suing the other for divorce, claiming that the couple had entered into a common-law marriage, or a marriage by default after living together, acting as a married couple for a certain length of time. The court hearing the divorce case ruled that one could not sue the other for divorce. The court reasoned that if a common-law marriage were to include same sex couples, then the legislature would have to make that change.

Matter of Estate of Cooper (New York, 1990) - When Cooper died, his will directed a bulk of his estate be left to a former lover, who was not Cooper's lover at his death. The current lover sued, arguing that New York's inheritance laws should apply to him as if he were married to Cooper at his death. The court disagreed, holding that persons of same sex have no right to enter into a legal marriage.

Baehr v. Lewin (Hawaii, 1993) - The Hawaii Supreme Court held that Hawaii's law restricting marriage to opposite-sex couples was subject to strict scrutiny. Voters later passed a law amending Hawaii's Constitution to affirm that marriage was between a man and a woman.

Dean v. District of Columbia (Washington, D.C., 1995) - A gay couple sued the District of Columbia for refusing to allow them the right to marry. The appeals court ruled against the couple, deciding that D.C. can refuse to grant marriage licenses to gay couples, and that same-sex marriage was not a fundamental right.

Baker v. State (Vermont, 1999) - A same sex couple sued, arguing that the refusal to issue them a marriage license violated the Vermont Constitution. The court ruled in favor of the couple, issuing an opinion that the state's constitution required the government to extend same-sex couples the same rights and responsibilities as those that entered into traditional marriages. Vermont passed its Civil Union law in 2000 in response to this judicial decision.

Goodridge v. Department of Public Health (Massachusetts, 2003) - The Massachusetts Supreme Court ruled that a state law banning same-sex marriage was unconstitutional and ordered the legislature to rectify the problem. In 2004, the court ruled that offering civil unions instead of civil marriages to same-sex couples did not meet the requirements set forth in the original order by the court.

Citizens For Equal Protection v. Bruning (8th Circuit Court of Appeals, 2006) - The 8th Circuit Court of Appeals upholds an amendment to the Nebraska Constitution that defines marriage as between only a man and a woman, finding the law rationally related to legitimate state interests.

In re Marriage Cases (California, 2008) - The California Supreme Court, in a decision that shocked much of the county, ruled that laws restricting marriage to be between a man and a woman violated the state constitution and could not be used to bar same-sex marriages.

Kerrigan v. Commissioner of Public Health (Connecticut, 2008) - The Supreme Court of Connecticut ruled that laws that allowed opposite-sex couples to marry but only allowed same-sex couples to enter into civil unions was discrimination. The court held that same sex couples could not be denied the right to marry.

Strauss v. Horton (California, 2009) - In response to the passage of Proposition 8, challengers sued claiming that the amendment to the state's constitution was not procedurally proper. However, the court ruled that the amendment was proper. However, the court also ruled that Proposition 8 was not retroactive; therefore, any marriages performed before its passage are still valid and enforceable.

Varnum v. Brien (Iowa, 2009) - The Iowa Supreme Court held that an Iowa statute restricting marriage to a male and a female violated the equal protection clause in the state's constitution. The court ordered the restriction removed from the statute, and directed the state to interpret and apply the remaining provisions in a way that will afford "gay and lesbian people full access to the institution of civil marriage."

Perry v. Schwarzenegger (ND Cal., 2010) - Judge Vaughn Walker ruled that Prop 8 violates both the Equal Protection Clause of the 14th Amendment and the "full faith and credit" clause of Article IV. The Ninth Circuit affirmed that Proposition 8 was unconstitutional (the case was entitled Perry v. Brown), and the case was appealed to the U.S. Supreme Court.

Hollingsworth v. Perry (U.S. Supreme Court, 2013) - The nation's highest court dismissed the appeal on the grounds that the plaintiffs had no standing to challenge the lower courts' rulings. Therefore, the lower court's decision invalidating California's Proposition 8 remained, meaning that same-sex couples could marry.

United States v. Windsor (U.S. Supreme Court, 2013) - This challenge to the federal Defense of Marriage Act (DOMA) was brought as a tax refund suit by an individual who had a legal same-sex marriage recognized under New York law, but who was denied a spousal deduction on federal estate taxes after her spouse passed away. The Court invalidated DOMA to the extent that it prevented the federal government from treating same-sex marriages as valid when they were lawful in the state in which they were licensed.

Latta v. Otter (9th Circuit Court of Appeals, 2014) - The 9th Circuit Court of Appeals held unconstitutional Idaho's statutes and constitutional amendments preventing same-sex couples from marrying and refusing to recognize same-sex marriages performed elsewhere.

Baskin v. Bogan (7th Circuit Court of Appeals, 2014) - The 7th Circuit Court of Appeals ruled that the laws in Indiana and Wisconsin refusing to authorize same-sex marriage or recognize such marriages made in other states were discriminatory and unconstitutional because they deny equal protection of the laws.

Bostic v. Schaefer (4th Circuit Court of Appeals, 2014) - In a challenge to Virgina's laws and constitutional amendment that prevent same-sex couples from marrying and refusing to recognize same-sex marriage performed lawfully in other states, the 4th Circuit Court of Appeals concluded that these laws impermissibly infringe on Virginia's citizens' fundamental right to marry.

Kitchen v. Herbert (10th Circuit Court of Appeals, 2014) - The 10th Circuit Court of Appeals holds that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children and enjoy the full protection of a state's marriage laws, and the State of Utah's attempt to deny these rights to same-sex couples, or refuse to recognize their marriage, was unconstitutional.

Obergefell v. Hodges (U.S. Supreme Court, 2015) - The U.S. Supreme Court concluded that, under the Fourteenth Amendment of the U.S. Constitution, states must license a marriage between two people of the same sex, and must recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.

Have Legal Questions About Your Marriage? An Attorney Can Help

The Obergefell case is changing the legal landscape for many issues related to marriage, as same-sex couples now have the right to marry in all 50 states, and states are required to recognize lawful same-sex marriages performed in other states. In the aftermath of Obergefell, there may still be other related issues which still need to be decided by the courts or legislatures of the various states. You can stay on top of the current updates in your state's laws and learn more about how they impact you by speaking with an experienced family law attorney.

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