Same-Sex Marriage

Same-Sex Marriage Introduction

The heated debate over same-sex marriage is one of the most polarizing issues currently facing the American legal community. It is a controversy being played out in every branch of the federal government, from the floor of the US Senate to the Oval Office. It has raised concerns over the nature of federalism, the constitutional protections afforded on the basis of sexual identity and the role that societal values ultimately play in the formation of public policy.

The American Bar Association (ABA)'s endorsement of same-sex marriage in August 2010 and the official repeal of Don't Ask, Don't Tell in September 2011 seem to indicate a trend toward the legal recognition of same-sex marriage. However, while President Barack Obama has affirmed his support for the repeal of the Defense of Marriage Act (DOMA), enforcement of the law continues, and heavy legislative opposition to same-sex marriage has prevented its repeal.

Advocates of same-sex marriage enjoyed significant victories in February 2012. The Ninth Circuit ruled that Proposition 8 was unconstitutional on February 7, 2012, albeit with a narrow rationale, in Perry v. Brown. In the wake of that ruling, the legislatures of Maryland, New Jersey and Washington all approved legislation that would legalize same-sex marriage.

The US District Court for the Northern District of California ruled that DOMA was unconstitutional on February 22, 2012. Subsequently, the US Court of Appeals for the First Circuit issued an opinion finding that Section 3 of DOMA, which defines marriage as between one man and one woman, is unconstitutional because it interferes with a state's right to define marriage. The decision was issued on May 31, 2012, and was the first judgment by a federal appeals court concerning DOMA.

Defense of Marriage Act

On September 21, 1996, President Bill Clinton signed DOMA into law. The act defines marriage as between one man and one woman for the purpose of excluding homosexual couples from the institution of marriage. DOMA also exempts state-recognized same-sex marriages from the Full Faith and Credit Clause of the US Constitution, which requires states to recognize each other's "public Acts, Records, and judicial Proceedings," thereby allowing states to refuse to recognize same-sex marriages performed in other jurisdictions.

Federal Posture

DOMA has been a source of divisive political and legal conflict since its adoption, and challenges to the constitutionality of DOMA, particularly Section 3. DOMA's definition of marriage exempts same-sex married couples from federal marriage benefits enjoyed by heterosexual married couples, including social security entitlements, tax benefits and immigration rights.

While DOMA enjoyed the full support of the George W. Bush administration, US President Barack Obama has expressed his support for DOMA's full repeal. Despite his administration defending the law during the initial years of his presidency, the Department of Justice (DOJ) announced in February 2011 that it would no longer defend DOMA's constitutionality in court.

JURIST Guest Columnist David Brunell argued that the DOJ's decision violates its constitutional responsibilities:

What's the problem? Essentially, there are two issues with the DOJ not defending DOMA: first, whether it is failing to follow separation of powers mandates; and second, whether it is forsaking its duty to enforce federal law.

As Chief Justice Marshall famously wrote in Marbury v. Madison back in 1803, "it is emphatically the province of the Judicial [Branch] to say what the law is."

Not only is the DOJ failing to perform its duty to enforce federal law by not defending DOMA, by contending that DOMA is unconstitutional the DOJ is also trampling on the courts' responsibilities by attempting to speak for the courts. In short, the DOJ is acting unconstitutionally."

In response to the DOJ's decision, US House Speaker John Boehner launched the Bipartisan Legal Advisory Group (BLAG) to defend DOMA's constitutionality in the absence of the Obama administration's support. BLAG initiated its first defense of DOMA in October 2011 when it filed a brief in the US District Court for the Northern District of California in the case of Golinski v. US Office of Personnel Management.

Attempted Repeal & Litigation

While the DOJ has stopped defending DOMA in court, it has not ceased enforcement, which has forced the law's opponents to take more direct action towards overturning it. The most significant congressional action to repeal DOMA has been the Respect for Marriage Act (ROMA), which was first introduced in September 2009 by 90 members of the House of Representatives. Following the DOJ's announcement that it would cease legal defense of DOMA, congressional Democrats reintroduced ROMA in both the Senate and the House of Representatives. The proposed legislation would repeal DOMA and allow the federal government to provide the same benefits to married same-sex couples that married heterosexual couples enjoy, and give federal recognition to same-sex marriages in states where they are valid. On November 10, 2011, the US Senate Judiciary Committee voted along party lines to pass ROMA, but the bill failed to pass.

Same-sex married couples and gay rights groups have brought numerous challenges to the constitutionality of DOMA in federal courts, some of which have resulted in the act being declared unconstitutional pending appellate review. On April 2, 2012, a group of same-sex couples filed a lawsuit [PDF] in the US District Court for the Eastern District of New York challenging the constitutionality of DOMA on the grounds that the law discriminates against same-sex couples in which one of the partners is a foreign national. The plaintiffs argue that if the foreign-born partner were of the opposite sex of the American partner, the federal government would afford the foreign partner a path to US citizenship.

In Massachusetts, the first state to officially recognize the validity of same-sex marriages, two separate lawsuits were filed in 2009 by same-sex couples represented by Gay & Lesbian Advocates & Defenders (GLAD) and Massachusetts Attorney General Martha Coakley challenging the constitutionality of DOMA. The DOJ sought to dismiss both Gill v. US Office of Personnel Management and Massachusetts v. Department of Health & Human Services in 2009. However, Judge Joseph Tauro ruled for the plaintiffs in both suits, striking down Section 3 of DOMA as unconstitutional in July 2010.

JURIST Guest Columnist Bruce Miller called Judge Tauro's decision "unsurprising" in light of traditional judicial divisions between "what is truly national and what is truly local":

The unprecedented DOMA foray into family law required Massachusetts either to foreswear its recognition of same marriages or surrender its own and its citizens' eligibility for those federal Medicare, Medicaid and veterans' benefits made available by DOMA only to separate sex married couples. Judge Tauro found this choice to be an unconstitutional Catch 22, encroaching on the core sovereign right of Massachusetts to adopt and enforce its own definition of marriage.
GLAD and the American Civil Liberties Union (ACLU) have filed separate lawsuits challenging DOMA in Pedersen v. US Office of Personnel Management [PDF] and Windsor v. US [PDF], respectively. In the United States District Court for the District of Connecticut, the ACLU is representing Edith Windsor, a widow who married in Canada, seeking a refund for estate taxes levied against her after the death of her wife that are not levied against heterosexual married couples.

The US District Court of the Southern District of New York (SDNY) ruled in Windsor that Section 3 of DOMA is unconstitutional. The Second Circuit heard arguments in Windsor in September 2012 and struck down Section 3 under the standard of intermediate scrutiny. The US Supreme Court granted certiorari in Windsor as part of a combined case concerning same-sex marriage, outlined in greater detail below.

There are other constitutional challenges to DOMA in the US District Court for the Northern District of California and the US Court of Appeals for Veterans Claims. A challenge in the US District Court for the Central District of California was dismissed on jurisdictional grounds in August 2009 because the case originated in state court, mandating the district court's application of state law. In the US Bankruptcy Court for the Central District of California, 20 bankruptcy judges signed an opinion declaring DOMA unconstitutional because it prevents a same-sex married couple from jointly filing for bankruptcy. The DOJ appealed that decision to the US Court of Appeals for the Ninth Circuit in June 2011. In addition to the DOJ's appeal, ten US senators filed an amicus brief urging the Ninth Circuit to uphold Section 3 of DOMA.

On February 22, 2012, the US District Court for the Northern District of California in Golinski v. US Office of Personnel Management ruled that DOMA was unconstitutional [PDF]. Judge Jeffrey White ruled that statutory classifications based on sexual orientation should be subject to heightened scrutiny and that the legislation was not "substantially related to an important governmental objective." As a result, White concluded that DOMA violated Golinski's right to Equal Protection of the law under the Fifth Amendment to the US Constitution. However, BLAG notified the US Court of Appeals for the Ninth Circuit that they intend to appeal the district court's ruling. Speaker of the House John Boehner, Majority Leader Eric Cantor and Majority Whip Kevin McCarthy have indicated they will join the appeal, while Minority Leader Nancy Pelosi and Democratic Whip Steny Hoyer will not. On May 24, 2012, Judge Claudia Wilken of the US District Court for the Northern District of California mirrored the Golinski ruling, declaring that California's state pension system must afford same-sex spouses of state workers the same access to long-term care insurance as it does to heterosexual spouses. JURIST Guest Columnist Julie Nice of the University of San Francisco School of Law commented on the ruling in Golinski, stating that it rejected the defenses that deny the designation and benefits of marriage to same-sex couples and their children.

The court found no credible evidence to dispute the consensus that same-sex couples are equally capable as parents. The court also found that DOMA's denial of federal recognition of lawful same-sex marriages "does nothing to encourage or discourage opposite-sex couples from having children within marriage"; "does nothing to support opposite-sex parenting"; "does not alter parental rights under state law"; and "only serves to undermine providing a stable environment for children of same-sex couples" in violation of equal protection.

Rejecting BLAG's other arguments, the district court found that neither tradition alone nor moral disapproval justify a discriminatory classification. It found no evidence showing federal recognition of lawful same-sex marriages would affect the government fisc. The court also chastised BLAG for contending that DOMA would maintain caution and the status quo. Instead, the court noted that DOMA represented a "stark departure" from the federal tradition of deferring to state law on marriage and that Congress may not "bury its head in the sand and wait for controversy to pass" while constitutional injuries occur. The court also found that DOMA undermined administrative consistency. Finally, the court noted, "having tried on its own," it was unable to "conceive of any additional interests that DOMA might further."

On the political front, US Attorney General Eric Holder sent a letter to Speaker Boehner on February 17, 2012 which indicated that the DOJ viewed the denial of military and veteran benefits to same-sex couples as violating the equal protection component of the Fifth Amendment. Holder wrote that:

The legislative record of these provisions contains no rationale for providing veterans' benefits to opposite sex spouses of veterans but not to legally married same-sex spouses of veterans. Neither the Department of Defense nor the Department of Veterans Affairs identified any justifications for that distinction that could warrant treating these provisions differently from Section 3 of the Defense of Marriage Act.

Following Holder's letter, JURIST Guest Columnists Nick Tiger of Servicemembers United and Danielle Hawkes of The American Military Partner Association argued that the DOJ's decision would lead to a Supreme Court ruling on whether heightened scrutiny standards apply to sexual orientation.

This decision effectively expands the definition of "spouse" in that section to include same-sex marriages performed in recognizing states. The move is another important step for LGB service members and their spouses towards receiving equal recognition in the military as the incredibly toxic Don't Ask, Don't Tell fades into a memory. However, the decision holds potential to be a far greater victory for the equality movement in and out of the military. The DOJ rested their decision in part on equal protection grounds, claiming that any state action classifying or targeting sexual orientation is subject to a higher degree of judicial scrutiny. Affording sexual orientation a higher degree of scrutiny builds on Supreme Court precedent. To date, the Supreme Court has held that discriminatory laws against same-sex couples fail to meet even the lowest standard of review and the Court has yet to have the opportunity to determine whether heightened scrutiny is required in evaluating laws that discriminate in this way.

JURIST Guest Columnist Robert Pfister discussed the validity of the constitutional challenges to DOMA, and his belief that the previously discussed lawsuits will eventually lead to the invalidation of the controversial legislation:

Beyond the proper standard of review, the heart of the Golinski case is whether the federal government may recognize some valid marriages (those of opposite-sex couples) but ignore other, just as valid marriages (those of same-sex couples). In our federalist system, the law of marriage, divorce, parentage and other domestic relations matters is generally left to each particular state, with the federal government recognizing a marriage as valid if it is valid under the law of the state in which the couple resides. DOMA, however, creates an unprecedented exception to that long-settled rule: marriages between individuals of opposite genders will be recognized as under state law, but marriages between same-sex couples will be disregarded for purposes of federal law. DOMA therefore draws a distinction on the basis of sexual orientation.

Under our constitutional system, the government cannot treat persons who are alike in all relevant respects differently. Legally married same-sex couples are constitutionally indistinguishable from legally married opposite-sex couples. DOMA's irrational insistence to the contrary is not within our constitutional tradition, as it violates the principle laid out in Romer v. Evans that "government and each of its parts remain open on impartial terms to all who seek its assistance.

On April 3, 2012, Chief Judge James Ware of the US District Court for the Northern District of California declared that the application of DOMA in the denial of insurance benefits to a same-sex spouse of a federal court employee is discriminatory. Ware reasoned that denying insurance benefits based on sexual orientation and gender violated federal court's guarantee of a discrimination-free workplace.

The court accepted Windsor's petition and requested Harvard Law Professor Vicki Jackson to prepare a brief determining whether the court is permitted to review the constitutionality of the law. Jackson argued in a brief filed January 24, 2013, that a general desire for precedent does not authorize the court to determine constitutionality. Windsor filed her brief on February 24, 2013, one day after the US Department of Justice released a statement declaring that it would not defend the constitutionality of DOMA. Instead, the US House of Representatives formed a legal advisory group to defend the law. Oral arguments for United States v. Windsor were presented on March 27, 2013. On June 26, 2013, the Supreme Court declared Section 3 of DOMA unconstitutional, permitting same-sex couples in "lawful" marriages to over 1100 federal benefits that were previously denied to them.

Recognition of Same-Sex Marriage

While DOMA has effectively blocked the implementation of same-sex marriage at the federal level, there have been several states that have taken independent legislative and judicial action regarding same-sex marriage. The laws passed at the state level have typically adopted one of two stances towards same-sex marriage: either imposing additional restrictions on the legal recognition of same-sex couples or specifically allowing the state to recognize same-sex marriages.

Legalizing Same-Sex Marriage

Massachusetts became the first US state to enact same-sex marriage in November 2003 when the Massachusetts Supreme Court rejected a statewide ban on same-sex marriage in Goodridge v. Department of Public Health. Connecticut followed suit in October 2008 when the Connecticut Supreme Court ruled that there is an inherent requirement that same-sex couples be allowed to marry in the Connecticut Constitution. The court's ruling was officially codified by the Connecticut General Assembly in April 2009. The Supreme Court of Iowa issued a similar ruling in April 2009 that struck down a ban on same-sex marriage as contrary to the Iowa Constitution.

Vermont became the first state to legalize same-sex marriage through legislative action in April 2009 when the Vermont legislature overrode a veto from Governor Jim Douglas in March 2009. Additionally, New Hampshire Governor John Lynch signed legislation allowing same-sex marriages to be performed in the state in June 2009, although it included a provision that religious organizations and their employees would not be required to participate in the services or officially recognize civil unions. The Council of the District of Columbia similarly approved a bill allowing same-sex marriages to be performed in the District of Columbia in December 2009. The US Supreme Court subsequently refused to block the legislation in March 2010.

New York adopted permissive same-sex marriage legislation in June 2011 when Governor Andrew Cuomo signed the Marriage Equality Act into law. However, both the New Yorkers for Constitutional Freedoms (NYCF) and Torah Jews for Decency (TJD) filed complaints challenging the law in July 2011. JURIST Guest Columnist Sarah Warbelow has posited that the passage of permissive same-sex marriage legislation in New York coincided with changing national attitudes about same-sex marriage:

New York's "conscience vote" was a refreshing change. In recent months and years, marriage bills in other states have fallen victim to party line votes, often with little to no substantive discussion ... New York is the largest state to allow same-sex couples to wed, and passage of the bill effectively doubled the number of Americans who live in a place where same-sex marriage is legal (about 11 percent of the total population) ... Passage of the bill coincided with recent changes in public sentiment about same-sex marriage, both in New York and nationally. In New York, just 37 percent of the state's residents supported allowing same-sex couples to wed in 2004, but [in 2011] polls showed that support jumped to 58 percent. Nationally, a Gallup poll released in May showed that for the first time, a majority of Americans (53 percent) support same-sex marriage.
Despite changing public opinions, JURIST Guest Columnist Ashley Dunn has argued that the New York laws demonstrate that discrimination against same-sex couples remains in the form of religious exemptions:
There has been an increasing trend of including ever-expanding religious exemptions within marriage equality and civil union laws, and New York is no exception. Exempting clergy from solemnizing same-sex marriages is harmless, albeit redundant. However, these new religious exemptions propose to do far more--perhaps more than people tend to realize. The language of New York's marriage equality legislation provides that religiously affiliated and benevolent organizations may take "such action as is calculated ... to promote the religious principles for which it is established or maintained." In essence, the law enshrines discrimination. While it is unclear exactly what the ramifications of such a provision will be, there is concern that it allows religious organizations to choose not to recognize the legal marriages of same-sex couples. For example, a Catholic hospital could choose not to allow a woman to make medical decisions on behalf of her wife, and a Catholic university could deny family medical leave to gay employees."
However, JURIST Guest Columnist William Duncan has argued that, regardless of whether same-sex marriage is a beneficial public policy, the New York legislation sets a bad precedent and is possibly unconstitutional under the New York Constitution due to violations of procedural requirements:
At the very least, the procedure for passage of same-sex marriage in the New York Senate contravenes the principles underlying the constitutional provisions noted above. Those provisions attempt to secure an open, transparent and deliberative process. By contrast, the procedure followed to get the same-sex marriage bill through as quickly as possible was characterized by secrecy, curtailed discussion and top-down control. The important changes to the bill's religious exemption were not only not explored at any length, but the attempt of Senator Ruben Diaz to ask questions about these provisions (which had only become public a few hours before) was completely foreclosed ... However one comes down on whether same-sex marriage is good public policy, its passage in New York clearly sets a bad precedent, perhaps rendering its enactment illegal.
Following the Ninth Circuit's ruling against Proposition 8, the Washington House of Representatives approved a bill to legalize same-sex marriage, which Governor Christine Gregoire signed into law in February 2012. However, the advocacy group Preserve Marriage Washington presented over 200,000 referendum signatures on June 6, 2012, seeking to overturn the legislation, preventing Washington's gay marriage law from taking effect. The referendum will appear on the ballot in November 2012.

Bills legalizing same-sex marriage also quickly passed through the New Jersey Senate and Assembly before the legislation was vetoed by Governor Chris Christie, who argued that the proper way to legally enshrine same-sex marriage would be through a voter referendum rather than through the state legislature. Four days later, the New Jersey Superior Court reinstated a single count [PDF] in a marriage equality lawsuit against the state's civil union system. The order reversed the court's earlier decision to dismiss the lawsuit on a motion by Attorney General Jeffrey Chiesa. After a contentious legal battle, the New Jersey Supreme Court ruled in October 2013 that the state must begin recognizing same-sex marriages.

Maryland also had similar, pending legislation that passed through the House of Delegates, and cross-filed legislation was approved by the Maryland Senate. Maryland officially became the eighth state to legalize same-sex marriage on March 1, 2012. Additionally, the Maryland Court of Appeals has also recently granted same-sex divorce to a lesbian couple married in California.

In July 2009, Washington, DC, began recognizing same-sex marriages that were performed in other states or jurisdictions through the Jury and Marriage Amendment Act of 2009. Shortly after the passage of this act, the Catholic Archdiocese of Washington, DC, pledged to cease its support of social services, citing the need to defend its beliefs. Shortly after, in December 2009, the Council for the District of Columbia passed the Religious Freedom and Civil Marriage Equality Amendment Act of 2009, which legalized same-sex marriage in the district. Attempts to block the act from taking effect occurred in the District of Columbia Court of Appeals and the US Supreme Court, but both failed in their efforts, and the District of Columbia began issuing marriage licenses to same-sex couples.

In April 2013, the Rhode Island Senate passed a bill legalizing same-sex marriage in that state, which Governor Lincoln Chafee signed into law in May 2013. Later that same month, Delaware Governor Jack Markell signed a bill into law legalizing same-sex marriage in that state, and the Minnesota House of Representatives and Senate each approved a bill to legalize same-sex marriage. Governor Mark Dayton signed the bill, making Minnesota the twelfth US state to recognize same-sex marriages. In November 2013, the state legislatures of Hawaii and Illinois passed bills allowing for same-sex marriages. The bills are expected to be signed by their respective governors later in the month.

Prohibiting Same-Sex Marriage

States have typically taken two main types of legislative actions to prevent same-sex marriage. Some states have adopted amendments modeled after DOMA to their constitutions which define marriage as existing only between a man and a woman. Constitutional amendments banning marriage and relationship recognition for same-sex couples have been adopted in nineteen states: Alabama, Arkansas, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia and Wisconsin. Additionally, Alaska, Arizona, Colorado, Mississippi, Missouri, Montana, Nevada, Oregon and Tennessee have passed constitutional amendments that ban marriage for same-sex couples. Additionally, states such as Indiana have amended their constitution to ban same-sex marriage or any "substantially similar" designations relating to homosexual partnerships.

The passage of such disparate laws at the state level has led to widespread debate over whether inherent guarantees in state constitutions conflicts with same-sex marriage bans. JURIST Guest Columnist Betsy Griffing has argued that, despite a constitutional amendment banning same-sex marriage in Montana, the equal protection guarantees of the state constitution and Montana Supreme Court precedent require some form of legal recognition for same-sex couples:

The right to choose a life partner and protect a family relationship is integral to the express right of privacy contained in the Montana Constitution. That right of privacy includes the right to substantive protections which, at the very least, require the state take some affirmative action to acknowledge and support the domestic partnership or family unit. The express right of privacy, coupled with the right to human dignity provision in the Montana Constitution, forms the basis for legal recognition of same-sex couples who are similarly situated to married couples ... Along with these progressive state constitutional provisions, Montana has a history of recognizing that same-sex relationships are entitled to a modicum of protection under the equal protection and privacy clauses.
Other states, such as Wyoming, have passed legislation that prohibit state recognition of any same-sex marriages and civil unions performed in other jurisdictions. Some states have chosen to pass both statutes and constitutional amendments banning same-sex marriage and domestic partnerships. In May 2012, voters in North Carolina passed Amendment 1, constitutional amendment [PDF] that bans same-sex marriage and any type of same-sex domestic union in the state, including domestic partnerships and civil unions.

In the same legal vein, national gay rights advocacy group Lambda Legal filed suit in the US District Court for the District of Nevada in April 2012 on behalf of eight same-sex couples claiming [PDF] that Nevada's statutory and constitutional bans on same-sex marriage violates their rights under the Fourteenth Amendment of the US Constitution.

Underscoring the volatile political nature of the debate over same-sex marriage, the controversy has resulted in public opposition to efforts to legalize same-sex marriage in state legislatures. For example, Maine Governor John Baldacci signed a bill allowing same-sex marriage in May 2009. However, Maine voters vetoed the legislation in a ballot initiative in November 2009.

Civil Unions

Civil unions are legal partnerships that have been used to grant same-sex couples corollary rights to married, heterosexual couples. The exact privileges of civil unions, or civil partnerships, vary greatly between states. While touted as a means of granting equivalent benefits to same-sex couples, civil unions have also been criticized as representing either an inferior alternative to full marriage rights to advocates, or an implicit sanction of same-sex marriage to opponents. Civil unions were first enacted in Denmark in April 1989.

DOMA has prevented civil unions from being adopted at the federal level, but US states have enacted legislation individually regarding civil unions. The first US state to recognize civil unions was Vermont in April 2000. Several other states have passed similar legislation to recognize civil unions and domestic partnerships — including New Jersey, Delaware, Hawaii, Illinois, Rhode Island, Washington and New Hampshire. Additionally, other states have adopted domestic partnership laws that are roughly equivalent to civil unions, such as Oregon and California.

While Rhode Island allowed the performance of only civil unions within the state, Governor Chafee of Rhode Island signed an executive order that recognizes same-sex marriages performed out of state. Illinois is now facing legal challenges despite its recognition of civil unions, which twenty-five gay and lesbian couples claim does not go far enough. Illinois Attorney General Lisa Madigan subsequently filed notice in support of the plaintiffs' challenge to the state's same-sex marriage ban. Cook County State Attorney Anita Alvarez also argued in the case that the Illinois ban on same-sex marriage contravenes the state's constitution. In February 2013, the Illinois Senate passed a bill which would lift the ban on same-sex marriages in the state. Colorado Governor John Hickenlooper signed a bill legalizing civil unions in that state in March 2013.

International Recognition and Bans of Same-Sex Marriage

Twelve countries fully recognize and perform same-sex marriages. Western European and South American countries are the vanguards of legislation to legalize same-sex marriage, whereas many Asian and African countries have used legislation to ban the practice and impose harsh penalties ranging from imprisonment to capital punishment. Sharia law explicitly forbids homosexual activity, but the severity of punishment and application is contingent upon each individual Muslim country and the school of Islamic jurisprudence it follows. The United Kingdom currently recognizes civil unions, and the House of Commons has approved same-sex marriage with legislation awaiting approval from the House of Lords. French President Francois Hollande signed legislation legalizing same-sex marriage in May 2013, in spite of vehement protest.

Approximately 20 countries allow for civil unions instead. Israel recognizes but does not perform same-sex marriages and Mexico and Brazil perform same-sex marriage in most, but not all, jurisdictions. Same-sex marriage legalization has occurred mostly in Europe, but Uruguay, Argentina, Canada and South Africa also recognize and perform same-sex marriages. The European nations are the Netherlands, Belgium, Spain, Norway, Iceland, Portugal, Sweden and Denmark. The Netherlands was the first country to permit it, passing legislation in December 2000, and Belgium became the second country to approve it three years later. New Zealand's legislature broke into a national song after approving same-sex marriage in April 2013. Legislatures in multiple countries, including Germany and Scotland, have been debating expanding marriage to include LGBT couples, and the European Union (EU) announced its goal in November 2010 for all member nations to legalize same-sex marriage.

Adoption and Parental Rights

The legal controversy over same-sex marriage has also implicated debate over the parental and adoption rights of homosexual couples. Although many states have yet to officially address the issue, several states have had notable legal conflicts.

In recent years, the courts have abrogated many state-level bans that have prevented same-sex couples from adopting children. Judge Robin Cauthron of the struck down an amendment to the Oklahoma Constitution that prevented Oklahoma from recognizing adoptions by gay parents that were finalized in other US or foreign jurisdictions. In a similar Arkansas decision, a judge ruled that a state law prohibiting all unmarried couples from adopting or fostering children violated the Arkansas Constitution [PDF]. The judge held the law to be discriminatory because it prohibited all gay couples from adopting or fostering children by virtue of Arkansas not recognizing gay marriage. That decision was upheld by the Arkansas Supreme Court on April 7, 2011 [PDF]. The Court of Appeals for the Third Circuit also struck down a state law prohibiting gay couples from adopting in September 2010. The ACLU also filed a lawsuit [PDF] in North Carolina on June 13, 2012, challenging North Carolina's law against same-sex adoption, which effectively bans individuals in same-sex couples from adopting their partner's child. The lawsuit was filed on behalf of six same-sex couples who wish to share parental responsibilities with their partners.

Other expansions of gay parental rights have taken place in recent years. In New York, Governor David Paterson signed a bill into law that explicitly allowed unmarried partners, including gay couples, to jointly adopt children. The New Mexico Supreme Court similarly ruled that the same-sex partner of a parent who has adopted a child has a right to seek custody of that child after the partnership has dissolved. The court recognized the standing of a woman seeking partial custody of a child she had supported for years while in a same-sex relationship with the child's biological mother. Another prominent custody ruling occurred in February 2012, where the Massachusetts Appeals Court held that same-sex couples who marry and have a baby via artificial insemination are bound by the same custody laws as heterosexual couples.

However, not all states are legally expanding the rights of same-sex parents. In Virginia, the House of Delegates and Senate approved a bill that permits private adoption agencies to refuse placement to families if the agency, or anyone affiliated, disagrees with the placement based on religious beliefs, effectively allowing adoption agencies to refuse to allow same-sex couples to adopt.

Some cases have examined birth certificate controversies and reached differing opinions. In January 2012, an Iowa District Court ordered the Iowa Department of Public Health to include [PDF] both names of legally married same-sex parents on birth certificates. Cases involving gay adoption also include Adar v. Smith, a case involving a same-sex couple that wanted both their names on the birth certificate of an adopted child. Though adopted in New York, the child was born in Louisiana, where the couple was refused their request. The Court of Appeals for the Fifth Circuit originally ordered both names to be added to the birth certificate, but upon en banc review, the Fifth Circuit struck the order. Following that decision, gay rights group Lambda Legal filed a petition for a writ of certiorari to the US Supreme Court to review the case, which was denied.

Proposition 8 and Federal Litigation

The independent state actions regarding same-sex marriage and the federal controversy over DOMA have given rise to a great deal of litigation over the legitimacy of same-sex marriage. The most prominent of these is the case challenging the California same-sex marriage ban, Proposition 8. Originally adopted in November 2008, the ballot initiative amended the California Constitution to restrict the state's recognition of marriage as between a man and a woman. The passage of Proposition 8 was in response to the California Supreme Court's ruling in May 2008 that a statutory state ban on same-sex marriage was unconstitutional under the state constitution.

The electoral success of Proposition 8 was met with heated opposition from gay rights advocates, and the California Supreme Court agreed to hear the first round of challenges to the law just 15 days after the election. These state challenges claimed that Proposition 8 was improperly enacted, and received strong support from California Attorney General Jerry Brown. However, the California Supreme Court ultimately rejected these challenges in May 2009.

Following the California Supreme Court's decision, former US solicitor general Ted Olson and prominent litigator David Boies, who had been opponents in Bush v. Gore, filed a challenge to Proposition 8 in the US District Court for the Northern District of California in May 2009. Their complaint alleged that denying same-sex couples the right to marry violates both the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the US Constitution.

The US District Court for the Northern District of California refused to dismiss the new federal challenge in October 2009. However, this new challenge to Proposition 8 engendered attempted legal interventions from both opponents and proponents of the law. Judge Vaughn Walker initially denied requests to intervene from the ACLU, Lambda Legal, the National Council of La Raza and the Campaign for California Families. The US Court of Appeals for the Ninth Circuit subsequently upheld Walker's order in November 2009. The Ninth Circuit also halted attempts by same-sex marriage supporters to gain access to internal campaign communications between supporters of Proposition 8 in December 2009.

The federal trial on the constitutionality of Proposition 8 began on January 11, 2010 in Perry v. Schwarzenegger and closing arguments were heard on June 16, 2010. Judge Walker ultimately held that the same-sex marriage ban violated both the due process and equal protection and was, therefore, unconstitutional:

Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Proposition 8. The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal. Proposition 8 violates the Equal Protection Clause because it does not treat them equally.
Immediately following the decision, California Governor Arnold Schwarzenegger filed motions in the US District Court for the Northern District of California seeking the immediate resumption of same-sex marriages in the state. However, the US Court of Appeals for the Ninth Circuit issued an emergency stay on the ruling in August 2010. Supporters of Proposition 8 responded to Walker's ruling by seeking legal standing to appeal the decision in September 2010. Although the Ninth Circuit heard oral arguments on the appeal in December 2010, it eventually sought guidance from the California Supreme Court on the issue of standing in January 2011.


Part 1: Standing


Part 2: Merits

At the same time that the standing issue was being considered by the California Supreme Court, the sponsors of Proposition 8 were attempting to vacate the ruling from the US District Court for the Northern District of California by claiming that Judge Vaughn Walker should have recused himself from the case. Their motion alleged that Walker was biased in his ruling because he was in a long-term same-sex relationship at the time of his decision. However, Chief Judge James Ware for the US District Court for the Northern District of California refused to vacate the order, and denounced the use of sex, sexuality or race as proper grounds for recusal.

In March 2011, California Attorney General Kamala Harris asked the US Court of Appeals for the Ninth Circuit to lift the emergency stay order preventing same-sex couples from marrying. However, the Ninth Circuit denied Harris's motion.

The California Supreme Court heard oral arguments on the certified question of standing in September 2011. The court ruled in November 2011 that the sponsors of Proposition 8, and other ballot initiatives, can defend them in court when the state refuses to do so. This ruling allowed defendant-intervenors Project Marriage and other groups to takeover defense of the law from the California government, which had previously indicated opposition to the continued enforcement of Proposition 8. Following this decision, the Ninth Circuit consolidated the issue of Walker's alleged conflict of interest with the primary appeal of the district court's ruling overturning Proposition 8. There has been speculation that the Ninth Circuit's decision to consolidate the case was designed to provide a clean appeal of the issues to the US Supreme Court.

JURIST Assistant Editor Kimberly Bennett summarizes the legal arguments in favor of striking down Proposition 8, pointing out that there is a judicial inclination over the last half-century towards expanding the notion of Fourteenth Amendment protections:

Historically, the Supreme Court has ruled that laws arbitrarily discriminating against a specific group are unconstitutional. ... To pass scrutiny and be held constitutional ... discriminatory laws and policies must be found to be supported by an "exceedingly persuasive justification" that is "substantially related to an important governmental objective," and it cannot be found to be based on stereotypes.

Recently, US courts have made significant steps toward the protection of gays and lesbians, indicating that there has been a slow movement toward their inclusion as a protected class under the Equal Protection Clause. In Romer v. Evans, the Court ruled that an amendment to the Colorado Constitution, which stated that there was no protected status based on sexual orientation, was held to be unconstitutional because it violated the Equal Protection Clause for lack of a "legitimate legislative end." In Lawrence v. Texas, the Court stated that, "[m]oral disapproval of this group ... is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause." Based on these cases, the rule is clear: if a law is intended to infringe on the rights of a certain group, there must be a rational and legitimate governmental interest to justify it.

The Fourteenth Amendment does not specify any groups in particular that should be protected. Instead, the Constitution provides a framework to determine which rights are fundamental, and dictates that these rights shall not be denied to anyone within its jurisdiction. In Zablocki v. Redhail, the Supreme Court established marriage as a fundamental right recognized under the Equal Protection Clause. It further established that courts should apply a rigorous level of scrutiny in cases dealing with fundamental rights. Any scrutiny regarding the constitutionality of banning same-sex marriage reveals that the reasons for its ban are based on outmoded values that cannot be tied to a rational basis or legitimate governmental interest. It is the courts that must break with discriminatory views, as they have done in the past.

The Ninth Circuit heard oral arguments in the consolidated appeal on December 9, 2011. The court ruled that Proposition 8 violated both the Due Process and Equal Protection Clauses of the Fourteenth Amendment on February 7, 2012. In the decision of the court, Circuit Judge Stephen Reinhardt wrote:
"Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right--the right to obtain and use the designation of 'marriage' to describe their relationships. ... Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite sex couples. The Constitution simply does not allow for 'laws for this sort.'"
The court also held that supporters of Proposition 8 had standing to appeal the law's overturn, and dismissed a claim to vacate the judgment below over claims of judicial bias.

JURIST Guest Columnist Vikram Amar wrote that the Ninth Circuit could have ruled that the initiative proponents lacked standing to defend Proposition 8, which may have been a more judicially sound method to invalidate the amendment as opposed to basing the decision on Romer v. Evans:

Had the Ninth Circuit held that the official proponents of Proposition 8 lacked Article III standing to defend the measure in federal court, Proposition 8 would die in California just as it does if Reinhardt's approach is allowed to stand. It would die because Governor Jerry Brown and Attorney General Kamala Harris (the only persons with proper standing in federal court to defend the measure) have made clear they will not defend it. A class action on behalf of all same-sex couples in California could be brought (as Proposition 8 challengers probably should have done in the first place), and then (after Perry and Harris decline to defend) a default judgment in favor of this class of plaintiffs and a corresponding statewide injunction against enforcing Proposition 8 would ensue.

This result would have been better for same-sex marriage proponents than Reinhardt's approach because even though the same result invalidating Proposition 8 would be reached: (1) California would join the ranks of the same-sex marriage states in the important national tally by virtue of decisions of elected California officials (Attorney General and Governor) and the voters who elected them, rather than by unelected federal judges (especially the notoriously liberal Reinhardt); (2); the likelihood of Supreme Court review would be much lower than it is even under Reinhardt's California-specific approach; (3) Judge Reinhardt could appear to be displaying judicial modesty and obedience by taking to heart the admonitions by the Supreme Court reversing a Ninth Circuit case he authored 15 years ago concerning the lack of initiative proponent standing in federal court; and (4) there would be no doctrinal externalities to other settings arising from Judge Reinhardt's curious reasoning.

Reflecting on the same decision, JURIST Guest Columnist Kevin Snider, Chief Counsel for the Pacific Justice Institute, wrote that the Ninth Circuit panel in Perry v. Brown unanimously acknowledged that a right to same-sex marriage is not supported by federal precedent, and that sexual orientation is not a "suspect classification" according to longstanding Supreme Court case law:
"[H]ad the Ninth Circuit decided to directly answer the question as to whether same-sex marriage is a fundamental right, the Court would have been obliged to follow Baker. Stated simply, the panel could not have found a constitutional right to same-sex marriage... [In addition to the Ninth Circuit], nine other circuits, covering 12 opinions over the span of more than 25 years, have come to the same conclusion that homosexuals are not a suspect class. Indeed, to date no circuit has come to a contrary conclusion. Because homosexuals do not belong to a suspect class, a sexual orientation claim will receive rational basis review."
Also examining Perry v. Brown, JURIST Guest Columnist Robert Rodes, wrote that while some legal recognition of same-sex relationships has gained widespread support, creating same-sex marriage rights must be left to the democratic processes:
Under Proposition 8, domestic partners only lack the name of marriage ... The court stated that the name is significant: "Domestic partnerships lack the social meaning associated with marriage." However, attaching the name of marriage to any such relation evokes strong grassroots opposition almost nationwide. Those of us who believe in democracy should be reluctant to attribute to that opposition a mere gratuitous wish to make fellow citizens feel bad because of their sexual orientation. I suggest that what is really involved is a strong intuition that the coming together of a man and a woman gives rise to a relation so different from all other relations as to require calling it by a different name.

Despite the publicity surrounding it, the ruling in Perry v. Brown has not settled the issue of same-sex marriage. Proponents of Prop 8 requested a new hearing [PDF] before the full US Court of Appeals for the Ninth Circuit, which blocked the court's ruling from taking immediate effect. On June 5, 2012, the Ninth Circuit denied the petition to rehear the case before the entire court.

In July 2012, members of the US House of Representatives filed an amicus brief with the US Court of Appeals for the Ninth Circuit, stating the negative impact the law has on same-sex couples. New York Attorney General Eric Schneiderman also filed his own brief with the US Supreme Court that same month further challenging DOMA.

The Alliance Defending Freedom was one of the parties that appealed the Ninth Circuit decision to the Supreme Court, stating that the Court should consider "whether the ancient and vital institution of marriage should be fundamentally redefined to include same-sex couples." In the same week as the appeal, a judge for the US District Court for the District of Connecticut ruled DOMA unconstitutional, further pressing the issue nationally. However, in New York and Hawaii, federal courts refused to hear challenges to state laws allowing and banning same-sex marriage in those states.

On December 7, 2012, the US Supreme Court granted certiorari in two separate cases dealing with same sex-marriage. In the case of Hollingsworth v. Perry, the Court will be examining the validity of Proposition 8. The second case, United States v. Windsor, will determine the constitutionality of Section 3 of DOMA. Briefs have been filed in support of same-sex marriage from sources including the respondent couples, the City of San Francisco and many business institutions across the country. California Attorney General Harris and the Obama administration also filed briefs urging the US Supreme Court to overturn Proposition 8.

The Court heard oral arguments in Hollingsworth on March 26, 2013 and in Windsor on March 27, 2013.

On June 26, 2013, the Supreme Court ruled in Windsor [PDF] that DOMA is an unconstitutional violation of the Equal Protection Clause, and reversed and remanded in Perry [PDF] because the proponents of Proposition 8 lacked standing.


JURIST Swag
Timeline

11/14/2013: Hawaii legalized same-sex marriage.

11/8/2013: Idaho couples filed same-sex marriage lawsuit.

11/7/2013: Hawaii judge refused to block same-sex marriage legalization.

11/5/2013: Illinois House voted to legalize same-sex marriage.

10/30/2013: Colorado couple sought to overturn state ban on same-sex marriage.

10/30/2013: Hawaii Senate approved same-sex marriage bill.

10/29/2013: Missouri high court denied same-sex partner survivor benefits.

10/15/2013: Oregon couples challenged same-sex marriage ban.

10/14/2013: North Carolina official to begin accepting same-sex marriage licenses.

10/10/2013: New Jersey judge denied state's motion to halt same-sex marriages.

9/27/2013: Illinois judge permitted same-sex marriage cases to go to trial.

9/18/2013: US to begin recognizing all same-sex marriages for employee benefit purposes.

9/12/2013: Pennsylvania judge ordered clerk to stop issuing same-sex marriage licenses.

9/10/2013: Lawsuit challenged Kentucky same-sex marriage ban.

8/29/2013: US to begin recognizing all same-sex marriages for federal tax purposes.

8/27/2013: New Mexico judge ruled same-sex marriage legal.

8/23/2013: Texas Supreme Court to rule on same-sex divorce.

8/14/2013: California Supreme Court ended legal challenges to same-sex marriage.

8/14/2013: US military will provide equal benefits to same-sex spouses.

8/2/2013: US to begin processing same-sex visa applications.

7/22/2013: Federal judge ruled in favor of Ohio same-sex couple married out-of-state.

7/16/2013: California high court rejected request to halt same-sex marriages.

7/11/2013: Pennsylvania AG will not defend same-sex marriage ban.

6/30/2013: Supreme Court justice refused to block California same-sex marriages

6/29/2013: Proposition 8 backers filed petition to halt same-sex weddings

6/28/2013: Ninth Circuit lifted California's ban on same-sex marriage

6/28/2013: Federal judge blocked Michigan's ban on domestic partner benefits

6/27/2013: Supreme Court issued final orders of term

6/26/2013: California governor ordered marriage licenses issued to same-sex couples

6/26/2013: Supreme Court struck down DOMA and dismissed Proposition 8 appeal

 ...[more]

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