The History of the Legalization of Same-Sex Marriage
The Evolution of Same-Sex Marriage Laws
Early History and Laws
Same-sex relationships have been recorded since the beginning of civilization. In fact, same-sex unions occurred in various forms, frominformal, unsanctioned partnerships to ceremonial marriages. The Ancient Roman Empire did not shy away from same-sex unions, and there was widespread acceptance of homosexuality and bisexuality among the Roman citizens. Moreover, many of the early Roman emperors were in homosexual relationships. Nero, an early Roman emperor, was known for his homosexuality, and had been married to two men at different points in time.
The acceptance of same-sex marriages shifted towards intolerance with the rise of Christianity. Constantius II and Constans institutedlaws that prohibited these unions, and threateningthose who violated the law with execution. As a result, same-sex marriages became a taboo for thousands of years, except in a few extraordinary cases, such as when Pedro Diaz and Muño Vandilaz married in Spain during the Middle-Ages.
Initial Legality in the United States
With roots in Christianity, the United States unsurprisingly has a history of antagonistic viewpoints towardssame-sex relationships. However, the legality of same-sex marriages did not emerge to the mainstream until the 1970s. One of the first documented challenges to same-sex marriages occurred on May 18th, 1970, where two men applied for a marriage license in Heppenin County, Minnesota. Unfortunately, the Minnesota Supreme Court denied this request because it violated common law. The Court stated that marriage must only be granted between a man and a woman. Jack Baker and Michael McConnell, the same aforementioned couple, re-applied in a different Minnesota County in 1971. A Methodist minister officiated the marriage and signed the license, making it a binding contract in the state of Minnesota, andno federal or state courts ever invalidated the license obtained by the couple.
Another couple challenged same-sex marriages in 1971. Faygele Ben-Miriam and Paul Barwick applied for a marriage license in Seattle as a statement of equality between homosexuals and heterosexuals. The county auditor refused their application. However, other couples that encountered rejection took notice of their action, helping to spark a media flurry and the popular lawsuitSinger vs. Hara. Ultimately, the Washington State Court Appeals rejected their case with a unanimous decision in 1974.
Those two cases were among the first of many concerning same-sex relationships to emerge in the 1970s. In 1973, the state of Maryland banned same-sex marriage. In 1975, the Arizona Supreme Court invalidated a same-sex marriage license granted to a couple by reason of "trespassing biblical principles." In Colorado, a county clerk issued six same-sex marriage licenses, which, despite the efforts of a Colorado lawyer on behalf of the same-sex couples, later which became invalidated by state's DA's office later.
No major developments occurred in the United States during the 1980s.However, Denmark made remarkable progression towards the legal recognition of same-sex marriages as registered partnerships, and positive developments started internationally towards the recognition of same-sex partnerships as marriages during the 1990s. For instance, Norway approved the registered partnerships bill in 1993. In 1994, Sweden adopted the registered partnerships bill. Greenland and Iceland followed suit two years later. By 1999, the Netherlands and Belgium would approve a similar bill. The acceptance of same-sex unions throughout Europe and abroad was excellent progress, and sadly contrasted the attitude of the legislative bodies and legal system of the United States.
Legal Development in the United States
In 1993, the Hawaii Supreme Court overruled the state's statutes that limited marriages to opposite sex couples by citing it unconstitutional without compelling evidence. While this initially seemed like a step in the right direction for same-sex relationships, in 1996, President Bill Clinton signed the Defense of Marriage Act.This piece of legislation banned the federal government from recognizing same-sex unions. It also led to a slew of U.S. states, such as Alaska, and even Hawaii, to sign amendments against same-sex unions. California signed a domestic partnership bill in 1999, limiting the rights of same-sex unions.
Same-Sex Marriages Gain Recognition around the World
By 2000, however, attitudes towards same-sex relationships started to change. Vermont signed a bill regarding civil unions that granted same-sex couples equal rights as heterosexual marriages, making Vermont the first U.S. state to recognize same-sex couples as equal to heterosexual couples. That same year, Germany signed a bill recognizing life partnerships for same-sex couples. In addition, Queen Beatrix of the Netherlands signed a bill recognizing same-sex marriage, one of the first of its kind in the world.
In 2001, two same-sex couples in Ontario eventually passed through bureaucracy and were recognized as married. This monumental move made them the first legal same-sex marriages in the modern world. The Netherlands, continuing to be a forerunner in same-sex marriage rights, passed laws that granted same-sex unions the rights to adopt children. Sweden's parliament followed in the Netherlands' footsteps the next year. Europe and Canada continued making strives by legalizing same-sex marriages in Belgium, British Columbia, and Ontario. In addition, in 2003, Austria signeda registered partnerships bill into effect.
In 2004, major headway started to come for same-sex couples in the United States. For instance, the states ofCalifornia,Maine, Massachusetts, New Jersey, New Mexico, and New York all started recognizing same-sex unions in one way or another. In fact, following the decision of Goodridge v. Department of Public Health,on May 17th, 2004, due largely to the work of Massachusetts lawyer Mary Bonauto and her collogues, Massachusetts became the first state to recognize same-sex marriages. This also made Massachusetts the sixth jurisdiction worldwide to legalize these marriages. Meanwhile in Europe, Luxembourg approved a civil partnerships bill, along with the United Kingdom, South Africa, New Zealand, and Israel.
In 2005, the state of Connecticut signed a same-sex civil union bill into effect. Abroad, Andorra legalized same-sex unions, and Switzerland and Slovenia approved a registered partnerships bill. Moreover, this year the Canadian Senate legalized same-sex marriage. In 2006 and 2007, several countries made forward progressby recognizing same-sex registered partnerships, civil unions, and same-sex marriages.
In 2008, California and Connecticut officially legalize same-sex marriages. However, in California, a ballot initiative called "Proposition 8" overturned the legality of same-sex marriage that same year, prompting Kirstin M. Perry to hire a California lawyer to challenge the law. In 2009, Iowa, New Hampshire, Vermont, and the District of Columbia, along with Sweden and Mexico, legalized same-sex marriage. During 2010, same-sex marriage legalization continued to progress, with New York and Washington signing it into law. By 2013, the states of Rhode Island and Illinois approved a same-sex marriage bill, and the state of Colorado has made steps in approving civil unions.
Modern Legal Status and Disputes
In 2013, the California ballot initiative "Prop. 8" had made its way to the Supreme Court under the name of Hollingsworth v. Perry. It progressed this far in the legal process because independent groups, one of which was led by then Senator Dennis Hollingsworth, challenged a district court ruling holding Prop. 8 as unconstitutional. Ted Olson, a Washington D.C. lawyer, argued on behalf of Perry to the Supreme Court that the opponents of same-sex marriage did not have the ability to bring a lawsuit challenging a court's decision to invalidate Prop. 8, and even if they did, such a law forbidding same-sex marriage violates the Equal Protection Clause of the Constitution. Ultimately, the Court decided the supporters of Prop. 8 did not have the legal ability to bring the lawsuit they did. This decision affirmed the lower court's ruling that invalidated the ballot measure, and thus permitted same-sex marriages to resume.
As of 2014, 17 states officially recognize same-sex marriage. However, many states are resisting the growing progression of recognizing these marriages. Most notably, the state of Utah is currently involved in litigation appealing a December 2013 decision that deemed a ban on same-sex marriage unconstitutional. Oklahoma, Virginia, Texas, Kentucky, and Michigan are all involved in similar appeals to rulings that deem their same-sex marriage bans unconstitutional. The Texas lawyer who filed the suit argued that ban, like the others, serves no "legitimate governmental purpose." Moreover, Oregon lawyer Lake Perriguey has recently argued that the state's gay marriage ban should be struck down on similar grounds.
While these lawsuits will all progress through the legal system as others have, it is undeniable that within the last 10 years, the rights of same-sex couples to get married in the United States and abroad have started to grow out of the shadows of earlier intolerance.
In New Jersey, couples with civil unions are not considered married. Many New Jersey Lawyers and the group Garden State Equality advise couples with civil unions to get married. Similarly, New York attorneys and gay rights organizations that are urging same-sex couples to also marry to insure that they are eligible for Federal benefits.
Numerous questions remain about interstate recognition of same-sex marriages and divorce lawyers around the country are preparing for the inevitable legal challenges that lie ahead for family law attorneys that are now catering their practices to same-sex couples.
Follow these links to learn more about same-sex marriages:
- The History of Same-Sex Marriage (PDF)
- Same-Sex Marriage: A Selective Bibliography of the Legal Literature
- The Changing Debate on Same-Sex Marriage in the United States
- Same-Sex Marriage: U.S. States Recognition Chart
- Timeline of LGBT History
- Same-Sex Marriage Laws
- Unbinding the Ties: Edit Effects of Marital Statuson Same Gender Couples
- Same-Sex Marriage, Civil Unions, and Domestic Partnerships
- Understanding And Presenting The CaseFor Same-Sex Marriage
- Domestic Partnerships and Same Sex Marriages: A Resource Page
- Same-Sex Marriage: A Summary of Court Cases in the U.S. and Abroad (PDF)
- PBS: Ballot Measures Have Historical Results on Same-Sex Marriage and Legal Marijuana
- Minnesota Public Radio: How the Minnesota Amendment was Defeated
- Freedom to Marry: States
- H.R. 3396 (104th): Defense of Marriage Act
- Basic Facts about the Defense of Marriage Act