Which States Allow Gay Marriage?
*Editor’s note: This post is a Care2 favorite originally published in 2010, although Steve frequently updates the information.
It seems that barely a week goes by without the issue of same-sex marriage being in the news. While many states have actively banned gay marriage, a handful of states have allowed same-sex couples to access civil marriage rights.
Here is a resource page that contains information on which states allow gay marriage. This page will be updated to reflect any further changes in individual state law that may arise in the future, so check back often.
How Many States Allow Gay Marriage?
*Fourteen states allow same-sex couples to marry.
In date order, those states are: Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York, Washington, Maryland, Maine, Rhode Island, Delaware, Minnesota, California and New Jersey. The District of Columbia also recognizes gay marriages as of March 3, 2010.
One final note: Although Maine did legalize gay marriage through its legislative process in May of 2009, the law was prevented from coming into effect thanks to a motion for a people’s veto and a subsequent loss at the November 2008 ballot. As such, Maine is counted later in this list under the November 6 ballot initiative section.
The same logic applies to California. While technically gay marriage was legal for a brief time in 2008, it is counted here by the more firm date of when marriage equality was allowed back into force in 2013. In the timeline below it is discussed in sequence simply because it is tied to several other gay marriage related events.
Gay Marriage in Massachusetts
Massachusetts became the first state to permit gay marriage after the Massachusetts Supreme Judicial Court ruled by a 4-3 opinion that a ban on same-sex marriage violated the state’s constitution. The case in question was Goodridge v. Mass. Department of Public Health 440 Mass. 309.
On November 18, 2003 the Supreme Judicial Court issued its opinion that banning gay marriage arbitrarily infringed on the personal freedoms of the individual, reversing a lower court’s decision to uphold the ban. Determining no rational basis for the ban, the majority said:
“[Prohibiting same-sex marriage] barred access to the protections, benefits, and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community’s most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law.”
Massachusetts began issuing marriage licenses on May 17, 2004. In July of 2008 the Massachusetts Legislature passed a bill recognizing same-sex marriages that were legal in other jurisdictions which was signed by Governor Deval Patrick.
Gay Marriage in Connecticut
On October 10, 2008, the Connecticut Supreme Court ruled (.pdf) in favor of eight same-sex couples who, in 2004, were all denied marriage licenses.
The couples in question argued that the state’s prohibition of equal access to marriage for same-sex couples violated the Connecticut Constitution on the grounds that it discriminated against them on the basis of their sex. They also contended that civil unions created a separate but not equal status for gay and lesbian citizens.
By a vote of 4-3, the Connecticut Supreme Court overruled the decision of a lower court who had found in favor of the State. The Supreme Court found that prohibiting gay marriage violated the constitutional guarantees of equal protection, with Justice Richard Palmer writing for the majority saying:
“We conclude that, in light of the history of pernicious discrimination faced by gay men and lesbians, and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm.“
The case itself is notable for the fact that the court specifically concluded that civil partnerships are not equal to marriages. From the New York Times:
“Although marriage and civil unions do embody the same legal rights under our law, they are by no means equal,” Justice Palmer wrote in the majority opinion, joined by Justices Flemming L. Norcott Jr., Joette Katz and Lubbie Harper. “The former is an institution of transcendent historical, cultural and social significance, whereas the latter is not… ultimately, the message of the civil unions law is that what same-sex couples have is not as important or as significant as real marriage.”
Same-sex couples were issued marriage licenses from 28 October, 2008.
Gay Marriage in Iowa
On April 3, 2009, the Supreme Court of Iowa unanimously decided that a state ban on gay marriage violated Iowa’s constitution.
This landmark ruling came in the case of Varnum v. Brien in which the Supreme Court upheld a lower court ruling that said that there was no compelling government interest in denying same-sex couples equal access to marriage. In its opinion the Court said (.pdf):
“We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective. The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification… We have a constitutional duty to ensure equal protection of the law. Faithfulness to that duty requires us to hold Iowa’s marriage statute, Iowa Code section 595.2, violates the Iowa Constitution. If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded.”
Gay Marriage in Vermont
Vermont was the first state to legalize equal access to civil marriage for same-sex couples through the legislative process when it passed the “Act to Protect Religious Freedom and Recognize Equality in Civil Marriage, S.115“, overriding Governor Jim Douglas’ veto on April 7, 2009.
Prior to this, Vermont had recognized civil unions from July 1, 2000, making it the first state to formally recognize the relationships of same-sex couples. This move followed the Vermont Supreme Court ruling in Baker v. Vermont that same-sex couples had a constitutional right to access the benefits of marriage. The Court left it up to the Vermont Legislature to decide how to match that guarantee in law, suggesting an equal but separate classification for same-sex unions would, at the time, be an appropriate compromise.
The law came into effect on September 1, 2009.
Gay Marriage in New Hampshire
On June 3, 2009, New Hampshire’s Governor John Lynch signed HB 0436, a bill that allowed equal access to marriage for same-sex couples:
“This bill eliminates the exclusion of same gender couples from marriage, affirms religious freedom protections of clergy with regard to the solemnization of marriage, and provides a mechanism by which same gender couples who have entered into a civil union prior to the enactment of this bill may obtain the legal status of marriage.”
The bill had gone through several permutations so as to satisfy Gov. Lynch’s desire that the rights of religious institutions to deny marriage related services to same-sex couples be explicitly mentioned. The bill also recognized the same-sex marriages from other jurisdictions where gay marriage was already legal. The law came into effect on January 1, 2010.
Gay Marriage in California
The status of same-sex marriage in California is unique among US states and its history quite complex.
Prior to 1977 marriage in California’s Civil Code was defined in gender neutral terms, although no same-sex marriages had been recognized. Realizing that there was technically nothing to prevent same-sex couples from applying for a marriage license, a new section was added to the code which said that “persons of the same sex” were prohibited “from entering lawful marriage.” Another section was also drawn up to prevent same-sex marriages from other jurisdictions being recognized.
This was further strengthened by Proposition 22, a voter initiative brought to the ballot in the year 2000. It passed by 61 percent. The ban expressly added Section 308.5 to California’s Family Code. Known as “California’s Defense of Marriage Act”, the new section said, “Only marriage between a man and a woman is valid or recognized in California”.
Several legal cases were launched when San Francisco began issuing same-sex marriage licenses in February, 2004, defying Proposition 22 which city officials deemed unconstitutional.
By March of that year the California Supreme Court decided to take on those cases in one action, but ordered San Francisco to cease issuing marriage licenses to same-sex couples until the question of the constitutionality of Proposition 22 was resolved. On May 17, 2008, the Supreme Court of California ruled 4-3 on the consolidated cases, saying that the statutory provision against same-sex marriage violated the California State Constitution. In its opinion Re: Marriage Cases (.pdf) the Court said:
“California legislative and initiative measures limiting marriage to opposite-sex couples violate the state constitutional rights of same-sex couples and may not be used to preclude same-sex couples from marrying.”
Governor Arnold Schwarzenegger, who had previously vetoed two same-sex marriage bills, issued a statement saying that he would comply with the Court’s decision. In his statement he also said that he was against a newly launched ballot initiative, the now infamous Proposition 8, that sort to once again define marriage as it had been under Proposition 22.
From June 17, 18,000 same-sex marriages were carried out in California until, on November 4, 2008, Proposition 8 won at the ballot by a 52 percent majority and, as of November 5, 2008, same-sex couples were once again blocked from receiving marriage licenses. Domestic partnerships were still open to them, but what about the 18,000 marriages carried out during the interim of bans? Were they still legal?
Almost immediately, marriage equality advocates launched a challenge calling into question the legality of Proposition 8. The Supreme Court resolved to hear the case which became known as Strauss v. Horton.
On May 15, 2009, the Court issued a 6-1 ruling that found Proposition 8 to be lawful. In doing so, the Court advanced the argument that Proposition 22 and Proposition 8 were fundamentally different, saying (.pdf) :
“The difference between the measure proposed by Proposition 8 and the one contained in Proposition 22 is that Proposition 8 proposed to add this language as a provision of the California Constitution, whereas by Proposition 22 this language had been adopted as a statutory provision. (A California statute, of course, is invalid if it conflicts with the governing provisions of the California Constitution.)”(Page 18; Strauss v. Horton)
However, while allowing the ban to remain in effect, the Court also said that the 18,000 marriages that were enacted during the interim of bans should be allowed to stand, and that Proposition 8 was not broad enough to apply retroactively so as to invalidate the Supreme Court’s prior decision.
In a statement, Gov. Schwarzenegger said that he, again, would comply with the Court’s ruling. He also stated, however, that he did not support Proposition 8 and thought that there were certain “constitutional questions” that remained despite the Court’s decision.
This position was tested in Perry v. Schwarzenegger, the Proposition 8 court case in which Gov. Schwarzenegger and California’s Attorney General Jerry Brown both declined to defend the ban. This has meant that campaign groups who supported Proposition 8 have been forced to step in to defend the law themselves.
District Court Judge Vaughn Walker presided over the initial hearing of the Proposition 8 case in 2010. He returned a wide ranging opinion finding that Proposition 8 was based on animus and for that reason violated the US Constitution’s guarantees of Equal Protection and Due Process.
Vaughn Walker’s ruling was appealed to the Ninth Circuit, which in due course upheld Vaughn Walker’s central finding that the ban is unconstitutional. The case was then appealed to the Supreme Court of the United States.
On June 26, 2013, the SCOTUS decided that supporters of Proposition 8 did not have legal standing to defend the law, returning the case to the Ninth Circuit’s jurisdiction whereby Judge Vaughn Walker’s original, groundbreaking ruling was allowed to stand.
On June 28, 2013, marriage licenses were once again offered to California’s same-sex couples and while the case was not quite the landmark one that had been hoped for by same-sex marriage proponents, it remains important as the first case where a same-sex marriage ban enacted by a majority of the voting public has been deemed unconstitutional, setting a significant benchmark for future ballot fights.
Gay Marriage in the District of Columbia
For more information see Despite Supreme Court Challenge, Marriage Equality Comes into Effect in Washington DC!
Gay Marriage in New York
The New York Senate passed the Marriage Equality Act on June 24, 2011 and the law came into force exactly one month later with special arrangements being made as the date fell on a Sunday. You can read more about the New York fight for marriage equality here.
The Curse of the Ballot Box is Broken: Washington, Maryland and Maine Approve Marriage Equality
November 6, 2012: In a first for US politics, marriage equality laws survived the ballot in Washington and Maryland, while Maine legalized marriage equality solely by ballot initiative, marking a turning point for the movement. Find out more about this historic night here.
Gay Marriage in Rhode Island
May 2, 2013: Rhode Island legalizes marriage equality. Find out more here.
Gay Marriage in Delaware
May 7, 2013: Delaware legalizes marriage equality. Find out more here.
Gay Marriage in Minnesota
May 14, 2013: Minnesota legalizes marriage equality after only one year previously defeating a constitutional amendment to ban same-sex marriage. Find out more here.
Gay Marriage in New Jersey
The New Jersey State Supreme Court had previously ruled (Lewis) that same-sex couples must be afforded all the rights and responsibilities of marriage, even if they were not given the term marriage–that was left up to the state’s legislature to decide. State lawmakers decided to pass a civil unions, separate but in terms of legal rights, equal institution. However, this was when the federal government was unable to recognize same-sex marriages per Section 3 of the Defense of Marriage Act (DOMA).
When in the Summer of 2013 the Supreme Court of the United States struck down DOMA Section 3 (Windsor), the effect was broad but for New Jersey it presented a very particular new problem: the federal government would now recognize same-sex marriages but not civil unions, meaning that New Jersey same-sex couples were now once again unequal.
Campaign group Garden State Equality filed a suit (Garden State Equality v. Dow) asserting that the only reasonable course was for the state to legalize same-sex marriage but Governor Chris Christie had vowed to veto any legislative attempt.
Superior Court Judge Mary Jacobson ruled on September 27, 2013, that the state must now provide for same-sex marriages as this was the only way to ensure equality, as the Supreme Court had previously outlined was a must.
Governor Chris Christie swiftly announced an appeal, and asked Judge Mary C. Jacobson to extend the stay of her decision. Judge Jacobson refused, but gave the Governor the opportunity to appeal. Christie then asked the New Jersey Supreme Court to stay the decision. The Court however refused Governor Christie’s appeal for a stay, allowing Judge Jacobson’s order to go into effect.
On October 21, the same day that same-sex marriage licenses were issued, Governor Christie’s administration announced that, even though the Governor takes strong issue with the court’s decision, the Superior Court and Supreme Court had given a firm indication of the law and therefore that the administration would not make any further attempt to prevent same-sex marriages in the state.
- Relationship Recognition for Same-Sex Couples in the US (.pdf).
- LambdaLegal.org – a legal resource on major gay rights cases in the US.
Photo used under the Creative Commons License with thanks to Andy Birkey.