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Same-Sex Marriage, Civil Unions, and Domestic Partnerships
Updated: Feb. 28, 2012
Same-sex marriage became a reality in the United States in 2004 in the wake of a ruling by the Massachusetts Supreme Court that it was required under the equal protection clause of the state’s Constitution.
Prior to 2012, same-sex marriage had also been legalized in New York, Connecticut, Iowa, New Hampshire, Vermont and Washington, D.C. In Washington State, a bill legalizing it was passed in February, but opponents said they would seek to block it and put the question before the voters in a referendum.
In February, the New Jersey Assembly approved a bill legalizing same-sex marriage, setting up a confrontation with Gov. Chris Christie, who vetoed the bill and called on the Legislature to put the issue before voters instead.
Mr. Christie and most state Republican lawmakers want gay marriage put to a popular vote. Democrats say gay marriage is a civil right protected by the Constitution and not subject to referendum.
Also in February, the State Legislature in Maryland gave its final approval to the gay marriage law, which was expected to be signed by Gov. Martin O’Malley. The State Senate voted 25 to 22 on Feb. 23 to legalize same-sex marriage, less than a week after the House of Delegates barely passed the measure. Maryland will become the eighth state legalizing same-sex marriage when the governor signs the legislation, which he sponsored. Opponents vow to bring the measure to voters with a referendum.
In California, a court battle continued. The state’s Supreme Court had ruled in May 2008 that a ban on same-sex marriage was discriminatory, and the state began performing them. The ban was restored in a referendum that fall by a ballot measure known as Proposition 8.
The legality of the Proposition 8 ban was upheld by the state’s Supreme Court, but in August 2011, a federal judge ruled that it was unconstitutional. In February 2012, a federal appeals court agreed. The case is expected to be resolved by the Supreme Court. For more on Proposition 8, click here.
A New York Times/CBS News poll conducted in February 2012 found that 40 percent of respondents supported same-sex marriage, while 23 percent supported civil unions for gay couples and 31 percent said there should be no legal recognition of a gay couple’s relationship.
The issue has been a flashpoint in American politics for more than a decade, setting off waves of competing legislation, lawsuits and ballot initiatives to either legalize or ban the practice and causing rifts within religious groups.
The legalization of same-sex marriage in the United States had been a relatively recent goal of the gay-rights movement, but in the wake of the Massachusetts ruling, gay-rights organizers have placed it at the center of their agenda, steering money and muscle into dozens of state capitals in an often uphill effort to persuade lawmakers. At the same time, conservative groups pushed hard to forestall or reverse other courts through new laws or referendums. Twenty-nine states have constitutional bans on same-sex marriage, while 12 others have laws against it.
Proponents of same-sex marriage have long argued that the institution of marriage is a unique expression of love and commitment and that calling the unions of same-sex couples anything else is a form of second-class citizenship; they also point out that many legal rights are tied to marriage. Those opposed to same-sex marriage agree that marriage is a fundamental bond with ancient roots. But they draw the opposite conclusion, saying that allowing same-sex couples to marry would undermine the institution of marriage itself.
Running Battles: Political and Legal
The issue of same-sex marriage came to the fore after the Supreme Court of Hawaii ruled in 1993 that the denial of marriage licenses to three homosexual couples amounted to unconstitutional discrimination on the basis of sex — not sexual orientation — unless the state could show a compelling reason for the denials.
The Hawaii Legislature passed a bill in 1994 affirming marriage as intended for “man-woman units” capable of procreation. But in 1996, conservatives, fearful that the court case would lead to the sanctioning of marriages of lesbian and gay couples in Hawaii by the end of 1997, campaigned across the nation to insure that the recognition of same-sex marriages would not spread to other states.
The legislative battle picked up momentum as more conservatives became convinced a federal law was required. In September 1996, the United States Congress, approving what was called the “Defense of Marriage Act,” voted overwhelmingly to deny Federal benefits to married people of the same sex and to permit states to ignore such marriages sanctioned in other states. The bill was signed by President Bill Clinton.
In 1998, Hawaii voters rejected the legalization of same-sex marriages.
Same-sex marriage first became a reality in the United States in 2004, after the Supreme Court in Massachusetts ruled that it was required under the equal protection clause of the state’s Constitution. Connecticut began allowing same-sex marriage in late 2008.
In April 2009, Iowa’s Supreme Court ruled in favor of allowing gay couples to marry, and the legislatures of Maine and Vermont passed laws granting the same right in the following weeks. In California, after a court decision in 2008 allowed the marriages, a voter referendum that November, upheld in court in May 2009, barred them.
The New Hampshire legislature approved revisions to a same-sex marriage bill on June 3, 2009, and Gov. John Lynch promptly signed the legislation, making the state the sixth to let gay couples wed and changing the landscape surrounding an issue that brings together deeply held principles and flashpoint politics.
Civil unions, an intermediate step that supporters say has made same-sex marriage seem less threatening, are legal in New Jersey, Connecticut and Vermont. The latter two states are phasing them out after adopting same-sex marriage laws.
In February 2011, President Obama, in a major legal policy shift, directed the Justice Department to stop defending the Defense of Marriage Act — the 1996 law that bars federal recognition of same-sex marriages — against lawsuits challenging it as unconstitutional.
On May 15, 2008, the Supreme Court of California voted 4-to-3 that a state law banning same-sex marriage constituted illegal discrimination because domestic partnerships were not a good enough substitute. In its decision, the court wrote that whatever term is used by the state must be granted to all couples who meet its requirements, whatever their gender. The court left open the possibility that another term could denote state-sanctioned unions so long as that term was used across the board.
Opponents quickly organized, and launched the Proposition 8 initiative campaign, asking voters to ban same-sex marriages. After an expensive and hard-fought campaign, the measure passed on Nov. 4, 2008, with 52 percent of the vote. (Florida and Arizona also passed bans at the same time.)
Groups who had fought Proposition 8 immediately filed suit to block it. On May 26, 2009, the state Supreme Court upheld the voter-approved ban but also decided that the estimated 18,000 gay couples who tied the knot before the law took effect would stay wed. But in August 2010, a federal judge in San Francisco struck down the ban, saying it unfairly targeted gay men and women, handing supporters of such unions a temporary victory in a legal battle that seems all but certain to be settled by the Supreme Court.
In February 2012, a federal appeals court upheld the judge’s ruling. During the period when same-sex marriages were legal in the state, nearly 18,000 couples married; their unions remain in place.
In New Hampshire, lawmakers may soon vote to repeal the state’s two-year-old law allowing gay couples to wed.
A repeal bill appears to have a good chance of passing in the State House and Senate, which are both controlled by Republicans. The bigger question is whether they can muster enough votes to overcome a promised veto from Gov. John Lynch, a Democrat.
Based on party lines, House and Senate Republicans both have veto-proof majorities. But this is an issue where party allegiance gets muddy.
In a state whose “Live Free or Die” motto figures into many a policy decision, even many opponents of same-sex marriage wish the issue would just disappear. Republican lawmakers with libertarian leanings, a sizable group, seem especially unhappy to be facing a repeal vote, as well as those who maintain that cutting spending should be the legislature’s sole concern. Both groups appear worried about a backlash from their constituents.
Should the repeal pass, New Hampshire would be the first state in which a legislature has reversed itself on the issue of same-sex marriage. In Maine, voters repealed a marriage law through a referendum in November 2009, shortly after the Legislature approved it.
In December 2009, the New York State Senate voted down a proposal to legalize same-sex marriage. The vote followed more than a year of lobbying by gay rights organizations, who steered close to $1 million into New York legislative races to boost support for the measure.
But in June 2011, the tide turned when four senators who had voted against legalizing same-sex marriage reversed course, saying their constituents’ thinking on the socially divisive issue had evolved. Lawmakers voted on June 24 to legalize same-sex marriage, making New York the largest state where gay and lesbian couples will be able to wed.
The marriage bill, whose fate was uncertain until moments before the vote, was approved 33 to 29 in a packed but hushed Senate chamber. In the end, four members of the Republican majority joined all but one Democrat in the Senate in supporting the measure after an intense and emotional campaign aimed at the handful of lawmakers wrestling with a decision that divided their friends, their constituents and sometimes their own homes.
The unexpected victory had a clear champion: Gov. Andrew M. Cuomo, a Democrat who pledged in 2010 to support same-sex marriage but whose early months in office were dominated by intense battles with lawmakers and some labor unions over spending cuts. Mr. Cuomo made same-sex marriage one of his top priorities for 2011 and deployed his top aide to coordinate the efforts of a half-dozen local gay-rights organizations whose feuding and disorganization had in part been blamed for the defeat two years ago.
The new coalition of same-sex marriage supporters brought in one of Mr. Cuomo’s trusted campaign operatives to supervise a $3 million television and radio campaign aimed at persuading several Republican and Democratic senators to drop their opposition. In New York, passage of the bill reflects rapidly evolving sentiment about same-sex unions. In 2004, according to a Quinnipiac poll, 37 percent of the state’s residents supported allowing same-sex couples to wed. In 2011, 58 percent of them did. Advocates moved aggressively to capitalize on that shift, flooding the district offices of wavering lawmakers with phone calls, e-mails and signed postcards from constituents who favored same-sex marriage, sometimes in bundles that numbered in the thousands.
The law went into effect on June 24, with hundreds of couples marrying within the first hours.
President Obama and Gay Marriage
The flurry of activity in early 2009 has put pressure on President Obama to engage in a variety of gay issues. Mr. Obama has said he opposes same-sex marriage as a Christian but describes himself as a “fierce advocate of equality” for gay men and lesbians. While Mr. Obama has said he is “open to the possibility” that his views on same-sex marriage are misguided, he had offered no signal that he intended to change his position.
In February 2011, Mr. Obama directed the Justice Department to stop defending the Defense of Marriage Act against lawsuits challenging it as unconstitutional. The 1996 law barred federal recognition of same-sex marriage.
Attorney General Eric H. Holder Jr. sent a letter to Congress on Feb. 23 saying that his department will take the position in court that the act should be struck down as a violation of same-sex couples’ rights to equal protection under the law.
The move was welcomed by gay-rights advocates, who had often criticized Mr. Obama for moving too slowly in his first two years in office to address such issues. Coming after the administration successfully pushed late in 2010 for repeal of the military’s ban on gay men and lesbians serving openly, the change of policy on the marriage law could intensify the long-running political and ideological clash over same-sex marriage as the 2012 presidential campaign approaches.
A few years ago, the president’s decision might have set off an intense national debate about gay rights. But the Republicans’ reserved response suggested that Mr. Obama may suffer little political damage as he evolves from what many gay rights leaders saw as a lackluster defender of their causes into a far more aggressive advocate.
The Republican responses reflect a belief that the political focus in the near term will be on fiscal issues rather than social ones. Advocates for gay rights, meanwhile, argue that the political ramifications of the president’s decision should be limited because surveys suggest that, while the country is split on the issue, a growing number of people support gay marriage.
Same-Sex Marriage and Religion
Religious institutions have struggled with policies, privileges and rites regarding homosexuality, including whether or not to bless same-sex unions and whether or not gays and lesbians may hold positions of authority. There is no consensus among Christian faith groups on what the Bible says about homosexuality. Meanwhile, many individuals yearn for acceptance from their houses of worship.
In 2005, The United Church of Christ became the first mainline Christian denomination to support same-sex marriage officially when its general synod passed a resolution affirming “equal marriage rights for couples regardless of gender.” The resolution was adopted in the face of efforts to amend the Constitution to ban same-sex marriage.
In July 2009, at the 76th General Convention of the Episcopal Church, delegates including bishops, clergy and lay members, voted to open “any ordained ministry” to gay men and lesbians, a move that could effectively undermine a moratorium on ordaining gay bishops that the church passed at its last convention in 2006. Delegates also voted not to stand in the way of dioceses that choose to bless the unions of same-sex couples. Both issues have roiled the church for years.
Methodists, Presbyterians and American Baptist Churches have also debated the issues, and other Christian denominations have struggled with how to minister to gay and lesbian members.
Fundamentalist denominations have made significant efforts against homosexuality. The Southern Baptist Convention, for example, has expelled congregations that welcomed homosexuals to their memberships.
Reform Judaism, the largest of the main branches of Judaism, has for years allowed same-sex commitment ceremonies.
Islam prohibits same-sex marriage.
Demographics on Same-Sex Couples
In late August 2011 the Census Bureau released surprising data on where same-sex couples live in the United States. For example, the list of top cities did not include that traditional gay mecca, San Francisco. In fact, the city, which ranked third in 1990 and 11th in 2000, plummeted to No. 28 in 2010. And West Hollywood, once No. 1, dropped out of the top five.
According to the report, the No. 1-ranked town is Provincetown, Mass., at the tip of Cape Cod. Most surprising is how far same-sex couples have dispersed, moving from traditional enclaves and safe havens into farther-flung areas of the country. For instance, Pleasant Ridge, Mich., a suburb of Detroit; New Hope, Pa.; and Rehoboth Beach, Del., a beach town in southern Delaware, were in the top 10. All three had been popular destinations for gay people locally but had never ranked in the top 10.
The reordering reflects the growing influence of baby boomers, who are beginning to retire, and their life transitions are showing up in the data.