The State of Same Sex Marriage - NakedLaw by Avvo.com

The State of Same Sex Marriage

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February 10, 2012 at 6:19 am  •  Posted in Family, Government, Lawsuits by  •  0 Comments

This week a federal appeals court in California ruled that Proposition 8, the state’s ban on gay marriage, is unconstitutional. The appeals court statement that the ban’s only purpose was to “lessen the status and human dignity of gays and lesbians” has been hailed as a huge victory for the same-sex marriage movement.

In the United States, same-sex marriage can only be recognized at the state level; the current Defense of Marriage Act defines marriage at the federal level as being between a man and a woman. With the likelihood of California reinstating it increasing, and several other states confronting the issue this year, what do gay marriage rights look like across the the country right now?

States Recognizing Same Sex Marriage

In all, six states and Washington D.C. have officially recognized marriage between gay and lesbian couples. In every case, same-sex marriage has been legalized through legislation or court ruling; no state has as of yet changed the definition of marriage through popular vote.

Massachusetts: The Bay State became the first state to legalize same-sex marriage on May 17, 2004. The Massachusetts Supreme Court ruled it unconstitutional to exclude same-sex couples from the civil benefits of marriage.

Connecticut: On November 12, 2008, the Connecticut Supreme Court overturned the a 2005 civil-union statute as unconstitutionally discriminating against same-sex couples.

Iowa: Legalized April 27, 2009 via a unanimous ruling of the Iowa Supreme Court. The Court stated that limiting marriage to opposite-sex couples “does not substantially further any important governmental objective.”

Vermont: The state legislature overrode the governor’s veto of a bill legalizing same-sex marriage on September 1, 2009. Vermont was the first state to legalize gay and lesbian marriages through legislative action instead of a judicial ruling.

The District of Columbia: A bill recognizing same-sex marriages was signed into law by Washington D.C. Mayor Adrian Fenty on December 18, 2009.

New HampshireGovernor John Lynch signed a bill legalizing same-sex marriages on January 1, 2010. The New Hampshire legislature is expected to vote during their current  session on a bill repealing the law, brought by gay marriage opponents.

New York: On July 24, 2011, the New York legislature passed a bill recognizing the institution after four Republican state senators crossed party lines to vote in favor, along with all but one Democratic senator.

California has a complicated history when it comes to legalizing same-sex marriage. Gay marriage was effectively legalized on May 15, 2008, when the state Supreme Court ruled California’s existing definition of marriage violated the constitutional rights of same-sex couples. However, opponents of same-sex marriage got Proposition 8, a state constitutional amendment defining marriage as between opposite-sex couples only, on the November 2008 ballot, and it was approved by popular vote. On August 4, 2010, a decision by the U.S. District Court ruled Proposition 8 unconstitutional–but opponents appealed. The appeals court agreed with the district court ruling this week. However, the ruling is still on hold as further appeals are expected.

In the Works

Washington may soon become the seventh state to legalize same-sex marriage. The state House passed a bill recognizing marriage between same-sex couples February 8, and Governor Christine Gregoire has said she will sign it. In North Carolina, a state constitutional amendment defining marriage as between a man and a woman will be on the May ballot. Minnesota will vote on a similar amendment in November.

States Recognizing Civil Unions

Eleven states–Colorado, Delaware, Hawaii, Maine, Maryland, Nevada, Oregon, Rhode Island, Wisconsin, Illinois and Washington–have created legal unions for same-sex couples that offer some version of marital rights under state law. New Jersey legal unions, while not called marriages, are explicitly defined as offering all the rights and responsibilities of marriage under state law.

States Prohibiting Same Sex Marriage

As of January 2012, 29 states have constitutional bans on same-sex marriage, while 12 others have laws against it. Nineteen states ban any civil-union type recognition of same-sex partnerships that would be equivalent to civil marriage.

The Federal Outlook

Opponents of same-sex marriage have tried to introduce an amendment to the U.S. Constitution that would prevent individual states from recognizing same-sex marriages. In 2006, the Federal Marriage Amendment was approved by the Senate Judiciary Committee but ultimately shot down in both houses of Congress.

The 1996 Defense of Marriage Act defines marriage federally as between a man and a woman, meaning that same-sex couples married in states recognizing their union still cannot file joint federal tax returns or have their marital status recognized by the federal government. The tide may be turning, however; President Obama has called the law unconstitutional and, in February 2011, he directed the Justice Department to stop defending it against lawsuits challenging it as unconstitutional.

Same-sex marriage is still illegal in the vast majority of the country, but polls show support continues to rise; last year for the first time a majority of Americans said they were in favor of legalizing same-sex marriage. The same-sex marriage movement is gaining momentum, and the next several years will no doubt see many more legal challenges and protests over this hotly contested issue.

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