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Same-Sex Marriage


Should gay and lesbian couples have the right to marry? This question arises in many different legal contexts.  


The first set of questions arise under state law, because traditionally the law of domestic relations is governed by the law of each state. The courts of the various states have had to decide whether or not gay and lesbian couples have the right to marry under existing state statutes or the state constitution. In addition, state legislatures have adopted laws permitting or prohibiting same-sex couples to marry. Finally, the voters in the states have enacted initiatives and state constitutional amendments on the subject. Ballot measures on same-sex measures are currently pending in four states: Maine, Maryland, Minnesota, and the State of Washington. These cases and statutes are described below.


The second set of legal questions involves the validity of federal laws. In 1996 Congress enacted the federal Defense of Marriage Act (DOMA) which prohibits the federal government from granting same-sex couples any of the benefits of marriage (such as employment benefits or tax benefits) even where the couples have been legally married under state law. Other laws prohibit the military from granting benefits to the spouses of same-sex couples. A principal question in these cases is whether Congress has the power to override the decision of a state to recognize same-sex marriage. The DOMA litigation is also described below.


The third set of legal issues arises directly under the Due Process Clauses and Equal Protection Clause of the Constitution of the United States. Do same-sex couples have a constitutional right to marry? If so, then all of the state and federal laws that restrict or deny the right to marry are unconstitutional. This issue – the ultimate issue in all of these cases – has not yet been determined by any court.


For information about the litigation concerning same-sex marriage you may wish to visit the following websites: Human Rights Campaign, Lamda Legal, and Equality Ohio (all supporting same-sex marriage); and National Organization for Marriage, and Family Research Council (both opposing same-sex marriage).


1. Same Sex Marriage in the States


            Same-sex marriage is at present lawful and recognized in six states and the District of Columbia.  In California the legality of same-sex marriage is on appeal in the Prop 8 case, described above.  Most of the remaining states have enacted statutes or constitutional amendments limiting marriage to opposite-sex couples.   The Marriage and Relationship Recognition page at Human Rights Campaign tracks the law of same-sex marriage in all the states.  


            a. Four state supreme courts (Washington, New York, Maryland, and New Jersey) have issued decisions refusing to recognize same-sex marriage under their state constitutions:


Anderson v. King County, 158 Wash.2d 1 (2006) (upholding state DOMA)


Hernandez  v. Robles, 7 N.Y.3d 338 (2006) (refusing to recognize right to same-sex marriage under state constitution)


Conaway v. Deane, 401 Md. 219 (2007) (refusing to recognize right to same-sex marriage under state constitution)


Lewis v. Harris, 188 N.J. 415, 908 A.2d 196 (2006) (refusing to recognize right to same-sex marriage under state constitution)


            b. Four other state supreme courts (Massachusetts, California, Connecticut, and Iowa) have issued decisions recognizing the right to same-sex marriage under their state constitutions:


Goodridge v. Department of Public Health, 440 Mass. 941 (2003)


In re Marriage Cases, 43 Cal.4th 757 (2008)


Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008)


Varnum v. Brien, 767 N.W.2d 862 (Iowa 2009)


            c. Four American jurisdictions recognize same-sex marriage by statute, and legislation in two more states is pending voter approval in referenda: 


New York, Marriage Equality Act authorizing same-sex marriage adopted June 24, 2011


New Hampshire, statute authorizing same-sex marriage adopted June 3, 2009


Vermont, statute authorizing same-sex marriage became effective September 1, 2009


Washington, D.C. statute authorizing same-sex marriage became effective March 9, 2009


Maryland and Washington State enacted legislation approving same-sex marriage in 2012, both of which face referenda in November before becoming effective


d. Ohio Issue 1 and Other State Constitutional Amendments Banning Same-Sex Marriage and Civil Unions    


            Ohio Issue 1, adopted in 2004, is typical of state constitutional amendments that were adopted in many states after a few state legislatures and state supreme courts began to consider allowing same-sex marriage.  This amendment to the Ohio Constitution provides that


Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effect of marriage.


            This law may be attacked directly under the Due Process Clause on the theory that the right to marry is a fundamental right, or under the Equal Protection Clause on the theory that gays and lesbian couples may not be treated differently with respect to marriage than heterosexual couples.   


            Another theory that could be advanced is that state constitutional amendments prohibiting same-sex marriage are unconstitutional on the theory that these laws make it impossible for gays and lesbians to petition the legislature, political subdivisions, or state agencies for equal marriage rights and benefits; in other words, such laws deny gay and lesbian couples equal political rights.  For a complete discussion of this issue, see Wilson Huhn, Ohio Issue 1 Is Unconstitutional, 28 North Carolina Central Law Review 1 (2005).


e. Proposition 8


            The State of California enacted laws that permitted gay and lesbian couples the right to enter into “domestic partnerships” that entitled them all of the same legal rights and responsibilities as married couples, except for the right to call their relationship a “marriage.” Gay and lesbian couples challenged the constitutionality of those laws, and in May of 2008 in the case entitled In re Marriage Cases the California Supreme Court ruled that it was unlawful under the California Constitution for the State of California to establish two equivalent legal relationships but to call them by different names – “marriage” for heterosexual couples, and “domestic partnerships” for gay and lesbian couples.  In the November elections later that same year the people of the State of California narrowly voted to approve Proposition 8, an amendment to the state constitution that provides:


Only marriage between a man and a woman is valid or recognized in California.


            Proposition 8 in effect overruled the California Supreme Court’s decision in the Marriage Cases, but it did not invalidate marriages entered into before the adoption of the ballot initiative.


            Attorneys Ted Olson and David Boies, who were adversaries in Bush v. Gore, the case that decided the 2000 presidential election, together brought suit in federal district court in California challenging the constitutionality of Proposition 8 in the case of Perry v. Schwarzenegger.  They contended that Prop 8 violates both the Due Process Clause and the Equal Protection Clause of the Constitution of the United States.


            On August 4, 2010, after a lengthy trial featuring many witnesses and thousands of documents entered into evidence, Judge Vaughn Walker of the Northern District of California handed down his decision in the “Proposition 8 Case.”  In a comprehensive opinion containing extensive findings of fact and conclusions of law, Judge Walker ruled that Proposition 8 is unconstitutional.  His decision may be accessed here.  On February 8, 2012, the United States Court of Appeals for the Ninth Circuit affirmed Judge Walker’s decision in Perry v. Brown, 671 F3d 1052 (9th Cir. 2012).


            The “Prop 8 Trial” was not a “trial” in the traditional sense, even though the attorneys made opening statements and witnesses testified about the benefits and detriments of extending marriage rights to gays and lesbians. No jury was impaneled, and the trial judge had no actual authority to make “findings of fact” on the question of whether it would be beneficial to gay and lesbian families to be admitted to the institution of marriage, or whether it will harm heterosexual couples’ marriages if that were to happen. The reason that this was not a “trial” but rather a “hearing” is that all of the questions before the trial court were questions of law, not questions of fact. Questions of law are decided by judges, not by juries, and it isn’t even necessary for the parties to call any witnesses or introduce any evidence. Both the plaintiffs and the defendants could, if they wish, have relied entirely upon their pleadings and briefs, and the judge could have taken judicial notice of the facts and policies surrounding gay marriage. Furthermore, as to the conclusions that the trial judge reached in this case, the standard of review on appeal would be de novo, meaning that the appellate courts would be free to accept or reject the findings of the trial court. 


However, even though the Prop 8 Trial concerned questions of law and not questions of fact, the witnesses and evidence that were presented at trial have been cited by several other courts in determining the rights of gay and lesbian couples. The evidence that was developed at trial will continue to have a strong influence on future litigation.  


            Here are links to the trial brief of the plaintiffs (who opposed Proposition 8) and the trial brief of the defendants (who supported Proposition 8).  In addition, here are links to websites for the Alliance Defense Fund, which represented the supporters of Proposition 8, as well as the Prop 8 Trial Tracker and lgbt pov, which opposed Proposition 8.  All three websites feature background and information about the case.


f. Current Ballot Measures on Same-Sex Marriage:


This fall there will be referenda in the states of Maine, Maryland, and Washington on the question of whether to permit gay and lesbian couples the right to marry. In Minnesota the voters will decide whether to adopt a state constitutional amendment banning same-sex marriage.



2.  Federal Defense of Marriage Act


            In 1996 Congress enacted the Defense of Marriage Act (DOMA), which contains two principal provisions: one provision defining marriage as a union between a man and a woman for purposes of federal law, and another provision permitting the states not to recognize same-sex unions performed in other states.  The law provides:


Section 2. Powers reserved to the states


No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.  (codified at 28 U.S.C. 1738C)


Section 3. Definition of marriage


In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.  (Codified at 1 U.S.C. 7)


            Gay and lesbian couples have challenged Section 3 of this law in a number of federal courts.  A Massachusetts District Court struck down Section 3 in Gill v. Office of Personnel Management, 699 F.Supp.2d 374 (D.Mass. 2010). On May 31, 2012, the United States Court of Appeals for the First Circuit affirmed the decision of the District Court, stating “Rather than challenging the right of states to define marriage as they see fit, the appeals contest the right of Congress to undercut the choices made by same-sex couples and by individual states in deciding who can be married to whom.” Massachusetts v. United States Department of Health and Human Services, 682 F.3d 1 (1st Cir. 2012).  On February 22, 2012, a California District Court came to the same conclusion in Golinski v. Office of Personnel Management (N.D. Cal. 2012). The docket of the briefs filed with the Ninth Circuit in Golinski is available here. On June 6, 2012, the District Court for the Southern District of New York also ruled that Section 3 of DOMA is unconstitutional. Windsor v. U.S., 833 F.Supp.2d 394 (S.D.N.Y., June 6, 2012)

On July 31, 2012 the Connecticut District Court came to the same conclusion as the courts in Gill, Golinski, and Windsor. Pederson v. Office of Personnel Management (D.Conn. 2012).

In addition, a number of military servicemembers are challenging the constitutionality of federal laws that deny benefits to the families of same-sex married couples in the case of McLaughlin v. Panetta. See Max J. Rosenthal, Gays in the Military Bring Lawsuit to Overturn DOMA, Huffington Post (October 27, 2011)


            One of the unusual things about the DOMA litigation is that, while the federal government continues to enforce the law, the Department of Justice, acting under the orders of the President and the Attorney General, refuses to defend the constitutionality of the law in court. On February 23, 2011, Attorney General Eric Holder wrote this letter to John Boehner, Speaker of the House of Representatives, informing him that the President had determined that his administration could no longer in good conscience defend the constitutionality of the Defense of Marriage Act, and inviting the House of Representatives to take over responsibility for defending the law in court.  On July 2, 2011, the Department of Justice filed this brief in support of Ms. Golinski in district court, contending that DOMA is unconstitutional. The attorneys for the House of Representatives, known as BLAG, now appear in court on behalf of DOMA.

Wilson Huhn,
Jul 31, 2011, 5:22 AM
Wilson Huhn,
Jan 14, 2010, 5:52 AM