What is LawBrain?
It's a living legal community making laws accessible and interactive. Click Here to get Started »

Gay Marriage Legislation

From lawbrain.com

Gay marriage legislation refers to the law pertaining to state and federal stance on the marriage between same-sex couples.

Over the past several years, many states have acted to change or clarify their laws to address gay marriage. Some state courts or legislatures have expressly allowed gay marriage; in others, legislatures or voters have acted to disallow gay marriage. The following is a state-by-state summary of current law.


States Permitting Same-Sex Marriages

Massachusetts: The first state in the Union to legalize same-sex marriage. In Goodridge v. Department of Public Health, the Supreme Judical Court left Massachusetts marriage law intact and gave the state government 180 days to take appropriate action. The governor ordered the town clerk to begin issuing marriage licenses on May 17, 2004.

California: Same-sex marriages laws were passed and allowed  between June 16, 2008 and November 4, 2008, after the California's Supreme Court held that the statutes that limit marriage by couples of the same sex violated California's constitution; but the California electorate then approved Proposition 8, a voter initiative that reinstated the ban on same-sex marriage as part of the constitution. A federal case concerning Proposition 8, Perry v. Schwarzenegger, is currently being heard. The marriages that were performed during June 16, 2008 through November 4, 2008 are still recognized and legal.

Connecticut: On October 10, 2008, the Connecticut Supreme Court ruled that the Connecticut civil union statute that provided same-sex unions with the same rights and responsibilities as traditional opposite-sex marriages while still differentiating between marriage and civil union violated the equality and liberty provisions of the state's constitution.  The state began issuing marriage licenses to same-sex couples on November 12, 2008.

Nevada: On May 21, 2009, the Nevada state senate voted a bill into law that would allow same-sex and unmarried couples partnership rights similar to those granted by the state to married couples and they will recognize gay marriage. The Nevada state senate was able to get enough votes to override a veto by the state's Governor.

Iowa: On April 3, 2009, The Iowa Supreme Court issued a decision in Varnum v. Brien holding that an Iowa statute limiting marriage to a union between a man and a woman violated the equal protection clause of Iowa's constitution. The state began allowing same-sex marriages on April 24, 2009.

Vermont: On April 7, 2009, Vermont became the fourth state to legal same-sex marriage throughout the state and the state gathered enough votes to overide the state's Governor Jim Douglas' veto on gay marriage.. The Vermont Legislature legalized gay marriage by a vote of 100 to 49. Vermont legalized civil union only 9 years prior to legalizing same-sex marriage. 

District of Columbia: The City Council passed a gay marriage bill 11 to 2 on December 1, 2009. The Archdiocese of Washington opposed the redefinition of marriage based on the church's core teachings. Mayor Adrian Fenty is expected to sign the bill.

States Prohibiting Same-Sex Marriages

Illinois: a marriage between 2 individuals of the same sex is prohibited by statute

Maine: On May 6, 2009, the Maine Governor John Baldacci signed a bill to legalize same-sex marriage less than an hour after the state legislature had given their approval. Voters in the state overturned the law on November 3, 2009, however. 

Michigan: by statute, "Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting that unique relationship in order to promote,
among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state."
The Constitution states: "To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose."

New York: In the state of New York, same-sex marriages from other states and other countries are recognized, but there is no same sex marriage performed throughout the state and oppenents of same-sex marriage have prevented it from being legal in the State of new York.

Texas: The Texas Constitution states that "Marriage in this state shall consist only of the union of one man and one woman", and "This state or a political subdivision of this state may not create or recognize any legal status identical or simlar to marriage". State statute declares "A marriage between persons of the same sex or a civil union is contrary to the public policy of this state and is void in this state."

Utah: Statute decrees "Marriages prohibited and void: between persons of the same sex."
A Constitutional amendment, approved by the electorate on November 2, 2004: "Marriage consists only of the legal union between a man and a woman."

State Recognition of Same-Sex Marriage From Other States

The Defense of Marriage Act (DOMA), passed by Congress in 1996 and codified at 1 U.S.C. § 7, expressly grants states the right to refuse to recognize a same-sex marriage performed in another state.

Many legal commentators have argued that DOMA violates the Full Faith and Credit Clause of the United States Constitution, as well as the Equal Protection Clause contained in the 14th Amendment to the US Constitution.  Massachusetts Attorney General Martha Coakley has sued the federal government, claiming that DOMA violates the states' right under the 10th Amendment to define and regulate marriage.  

The United States Supreme Court has yet to rule on the constitutionality of DOMA, but the Obama administration has stated its opinion that DOMA is discriminatory and should be repealed.

Developments in State Legislation on Same-Sex Marriage

  • Hawaii's House of Representatives passed a civil unions bill (House Bill 444) providing same-sex couples the same rights as heterosexual couples. The House of Representatives passed the bill by a 31-20 vote and Governor Linda Lingle has until early July to sign in.[1]

Federal Same-Sex Marriage Legislation

International Same-Sex Marriage Laws

The Supreme Court of Mexico ruled that all same-sex marriages occurring in Mexico City must be recognized nationwide. [2]


Data from compiled from Stateline.org based on news reports, the Human Rights Campaign and the National Conference of State Legislatures.

See, Developments in Same-Sex Marriage Law (FindLaw)

  1. http://www.cnn.com/2010/POLITICS/04/30/hawaii.civil.unions/index.html
  2. http://jurist.org/paperchase/2010/08/mexico-high-court-rules-mexico-city-same-sex-marriages-must-be-recognized-nationwide.php

External Links

Related Resources on FindLaw

Related Blogs on FindLaw

Failed to load RSS feed from http://search.yahooapis.com/WebSearchService/rss/webSearch.xml?appid=yahoosearchwebrss&query=gay+marriage%20site:blogs.findlaw.com!

                                                                            Web Services by Yahoo!

See Also


FindLaw Brian, FindLaw Kourosh, FindLaw Michelle, FindLaw Nira, FindLaw Sarah, FindLaw Support, FindLaw dave, Pddooley, Zeather