Find Legal Topics > Marriage Laws > Gay Marriage Rights

Gay Marriage Rights

Gay Marriage Rights

Gay Marriage Explained:


Gay marriage (also referred to as same sex marriage) refers to a marriage between two persons of the same gender or biological sex. Gay marriage, in regards to its legality, is widely debated. Since the turn of the century, ten countries have legalized gay marriage in some aspect: Argentina, Iceland, Canada, Belgium, the Netherlands, Portugal, Norway, Spain, Sweden and South Africa. Gay marriage is also practiced in some parts of the United States and Mexico City.


The introduction of gay marriage will greatly vary by jurisdiction, as a result of legislative changes to marriage laws and/or court contests based on constitutional guarantees of equality. In some jurisdictions, the legality of gay marriage was instituted to replace the previously accepted formations, such as civil unions or registered partnerships.


The delivery of gay marriage rights is a civil, political, religious, social and moral issue in the majority of nations. Conflicts arise regarding whether gay marriage couples should be allowed to marry, be required to agree to a different formation (i.e. a civil union, which grants limited rights when compared to a marriage) or not be allowed any rights.


The crux of the same-sex marriage argument revolves around the religious and nuclear interpretation of what a family is. The common dictionary definition of a family is “the foundational unit in society having two adults living together and cooperating for the care of their children.” This definition, which is all-inclusive and extensive in terms of its androgynous text, is not uniform with regards to the legal definition of marriage. Many religious and conservative social thinkers believe that gay marriage rights should not be included nor alter the definition of a legal marriage.


Gay marriage rights are not recognized by the United States Federal Government; however, gay couples may legally marry in the following states: Connecticut, Massachusetts, Iowa, New Hampshire, Vermont and New York, also including the District of Columbia. Same-sex couples in these states may legally marry and receive all state-level benefits that are traditionally awarded to opposite-sex married couples.

 

Gay Marriage Rights in the United States:


Gay Marriage in Massachusetts: In 2003, the Massachusetts Supreme Court ruled that the state law banning gay marriage was unconstitutional under the state’s constitution. As a result, the court ordered the legislature to remedy the discriminatory act (banning of same-sex marriage) within six months. A year later, the court ruled that offering civil partnerships and unions instead of marriages was not sufficient according to the landmark case Goodridge v. Department of Public Health. Because of this interpretation, gay couples in the state were legally allowed to enter into civil marriages.


Gay Marriage in Connecticut: In October of 2008, The Connecticut Supreme Court similarly ruled that the state’s laws regarding civil unions discriminated on the grounds of sexual orientation and was thus unconstitutional. The court stated that “the segregation of heterosexual and homosexual couples into distinct institutions constitutes harm.” The Connecticut Supreme Court ruled that gay couples must be allowed to legally marry and the state of Connecticut, as a result, began issuing marriage license the following month.


Gay Marriage in Iowa and Vermont: In the spring of 2009, Iowa and Vermont began offering gay marriage rights. The Iowa Supreme Court ruled--in unanimous fashion—that the state’s laws barring gay marriage was unconstitutional—the Supreme Court ruled that gay couples must have legal access to forming a marriage.


Vermont became the first state to offer marriage equality through legislative action when the legislature overruled a governor veto to legalize gay marriage in the state. Gay marriage laws officially went into effect on September 1st of 2009.


Gay Marriage Rights in Maine: In May of 2009, Maine’s legislature passed the gay marriage bill. John Baldacci, the governor of Maine, had initially opposed offering gay marriage rights, but immediately signed the bill after it passed in the Senate. Baldacci believed that his vacillation regarding the legalization of gay marriage was based on equal protection and the question of fairness under state and federal law. Baldacci believed that civil unions were not equivalent to civil marriages. Although gay marriage rights gained momentum, the bill stayed pending as a ballot measure. Maine voters eventually repealed marriage equality in November of 2009 and the state maintained its “marriage lite” status—gay couples share several of the rights of married couples but do not share equal rights with traditional opposite sex couples.


Gay Marriage Rights in New Hampshire: In June of 2009, the state’s legislature passed a gay marriage bill. Governor John Lynch—who originally opposed same-sex marriage because religious groups were not mandated to offer same-sex ceremonies or provide similar services—signed the bill into law the same day it was passed by the house. Gay marriage rights were put into effect on January 2010.


Gay Marriage Rights in California: In California, the state’s gay marriage ban was reversed in August of 2010. On May 15th of 2008, the state’s Supreme Court ruled that limiting marriage to only the opposite sex violates the state’s Constitution and ordered the language afflicted from the statute. From June until November of 2008, roughly 18,000 gay couples wed in the state of California. However, the passage of Proposition 8 in November of the same year limited marriage in the state to only opposite sex couples.


In response to proposition 8, an assortment of gay, lesbian, bisexual and transgender groups challenged the passing. The California Supreme Court agreed to review the case. The court held that Proposition 8 is valid; this review held that gay couples are only able to register as domestic partners and may not marry. The state’s Supreme Court, however, did uphold existing gay marriage rights as valid.


In January of 2010, a federal trial took place in the state. The case Perry v. Scwarzenegger challenged Proposition 8 based on federal law. Following of two weeks of testimony, an appeal to the Ninth Circuit federal court where it is currently pending.

 

Gay Marriage Rights in Washington, D.C. New York and Maryland:


·         In March of 2010, gay marriage became legal in Washington D.C.; gay marriage rights were awarded after the city council’s vote passed through the Congressional approval period.


·         Maryland and a number of other states, explicitly recognize gay marriage when it is entered into states that allow them.


·         New York passed the gay marriage bill during the summer of 2011.

 

Gay Marriage Rights in Other States:


Washington, Oregon, Nevada, New Jersey and California offer either domestic partnerships or civil unions that are regarded as the legal equivalent to marriage in the states that offer gay marriage.


The gay marriage rights awarded under a domestic partnership or civil union include:


·         The right to sue for loss of consortium, wrongful death and based on any tort or law regarding a spousal relationship


·         The right under family laws, including divorce, annulment, child support, child custody, domestic violence, alimony, property division and adoption


·         Gay marriage rights under a civil union or domestic partnership include the delivery of medical rights, such as notification, hospital visitation and durable power of attorney.


·         Gay marriage rights under a civil union or domestic partnership include the ability to file a joint tax petition and the right to secure family leave benefits


·         Gay marriage rights under a civil union or domestic partnership include the ability to receive property inheritances when a partner dies without a will.

 

Legislation Associated with Gay Marriage Rights:


The Defense of Marriage Act:


The Defense of Marriage Act, which was enacted by Congress in 1996, bars federal recognition of gay marriage and allows states to implement the same relief. Since 1996, a number of states have enacted legislation prohibiting gay marriage or the recognition of gay marriage formed in other jurisdictions. In the U.S., states have conventionally recognized marriages that are honored in other jurisdictions, even if the solemnizing state vehemently outlaws same sex marriage.


Based on the full faith and credit clause of the United States Constitution, individual states are typically required to honor and recognize the public laws of other states, unless the attached laws are held separate to the strong public policy of that particular state.


Over half of the states in the U.S. have passed language to further define marriage between a male and female in their respective constitutions.


Currently, thirty-seven states currently observe statutory Defense of Marriage Acts. Three of these states possess statutory language that pre-date the Defense of Marriage Act which further defines marriage as between a male and a female. Moreover, thirty states have formally defined marriage in their constitutions.


 

The following states with statutes that define a marriage between a male and a female:


Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin and Wyoming.


The following states possess constitutional language to define marriage:


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


The following states do not possess laws prohibiting gay marriage:


Connecticut, the District of Columbia, Iowa, Massachusetts, New Hampshire, New Jersey, New Mexico, New York, Rhode Island and Vermont.


The following states have passed a Defense of Marriage Act Constitutional Amendment in 2008:


Arizona, California and Florida

 

The Marriage Recognition and Family Protection Act:


In October of 2009, following the passage of Prop 8 in the state of California, Governor Schwarzenegger signed the Marriage Recognition and Family Protection Act into law. The law established that same of the gay sex marriages performed outside of the state may be recognized within California as a legal “marriage” depending on the date of the wedding.

 

 

Related Topics