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On Dec. 7, 2012, the U.S. Supreme Court
agreed to review a number of federal appeals court decisions on same-sex
marriage: one striking down part of the federal Defense of Marriage Act (DOMA),
which defines marriage as a union between a man and a woman, and another
invalidating California’s Proposition 8, a ballot measure passed in 2008 that
amended the state’s constitution to ban gay marriage. (For more details, see
Same-Sex Marriage in the Courts.)
The court’s decision comes just a month
after voters in three states – Maine, Maryland and Washington – approved ballot
initiatives legalizing same-sex marriage. On the same day, Nov. 6, 2012, voters
in Minnesota rejected an attempt to add language to the state’s constitution banning
gay marriage. Same-sex marriage is now, or soon will be, legal in the District
of Columbia and nine states: Connecticut, Iowa, Maine, Maryland, Massachusetts,
New Hampshire, New York, Vermont and Washington. At the same time, 30 states
have added language to their constitutions banning same-sex marriage. (See Graphic: State Policies on Same-Sex Marriage.)
Between these poles, a fierce battle is
taking place pitting those who hope all gays and lesbians, regardless of where
they live, will soon have the right to marry against those who believe that
same-sex marriage is helping to undermine heterosexual marriage, which they see
as the foundation of healthy families.
The State of Play
Both sides in the debate over same-sex
marriage have scored important victories in the last few years. In February
2012, the 9th U.S. Circuit Court of Appeals gave same-sex marriage supporters a
big win when it upheld a lower court ruling that a California referendum
banning gay marriage (Proposition 8) was unconstitutional. In addition, several
appeals courts have struck down part of the federal Defense of Marriage Act,
which was signed into law by President Bill Clinton in 1996. In May 2012, President
Barack Obama announced that he favors the right of gay and lesbian couples to
marry, becoming the first sitting president to do so. One of the nation’s
largest and most important states, New York, legalized same-sex marriage in June
2011 and, as noted above, three additional states – Maine, Maryland and
Washington – legalized gay marriage in 2012.
Opponents of gay marriage also have had
successes in recent years. After the New Jersey legislature in February 2012
passed legislation legalizing gay marriage, the state’s Republican governor, Chris
Christie, vetoed it. And in May 2012, voters in North Carolina approved an
amendment to the state’s constitution banning gay marriage, making North
Carolina the 30th state to have such limits written into its constitution.
In 2012, Pew Research Center
polling finds slightly more support for same-sex marriage (48%) than opposition
to it (43%). The public has gradually become more
supportive of granting legal recognition to same-sex marriages over the past
decade. In 2001, roughly one-third of American adults supported gay marriage
(35%), while 57% opposed it. (See Slideshow: Changing Attitudes on Gay Marriage.)
Differing Views
Most supporters of same-sex marriage
contend that gay and lesbian couples should be treated no differently than
their heterosexual counterparts and that they should be able to marry like
anyone else. Beyond wanting to uphold the legal principles of nondiscrimination
and equal treatment, supporters say there are very practical reasons behind the
fight for what they call “marriage equality.” They point out, for instance,
that same-sex couples who have been together for years, if not decades, often
find themselves without the basic rights and privileges that are currently
enjoyed by heterosexual couples who legally marry – from the sharing of health
and pension benefits to hospital visitation rights.
Most social conservatives and others
who oppose same-sex marriage argue that marriage between a man and a woman is
the bedrock of a healthy society because it leads to stable families and,
ultimately, to children who grow up to be productive adults. Allowing gay and lesbian
couples to wed, they contend, will radically redefine marriage and further
weaken it at a time when the institution is already in serious trouble due to
high divorce rates and a significant and growing number of out-of-wedlock
births.1
Moreover, many predict that giving gay couples the right to marry will
ultimately lead to granting people in polygamous and other nontraditional
relationships the right to marry as well.
In recent years, the debate has moved
beyond questions of individual rights and proper family formation to include
questions that pit religious liberty against non-discrimination policies. While
all laws legalizing same-sex marriage contain some conscience protections
allowing churches and other religious groups to refuse to marry gay and lesbian
couples, the legal ground is murkier for religiously affiliated organizations,
such as hospitals, schools and other social-service providers, that may not want
to grant benefits to the spouse of an employee in a same-sex marriage or
provide adoption and other services to a gay or lesbian couple that are
routinely provided to heterosexual couples.
The American religious community is
deeply divided over the issue of same-sex marriage. The Catholic Church, the
Church of Jesus Christ of Latter-day Saints and many evangelical Christian
groups, such as the Southern Baptist Convention, have played a leading role in
public opposition to gay marriage. On the other side, the Reform and
Conservative Jewish movements now accept same-sex marriage – as do a number of
liberal Christian churches, such as the United Church of Christ.
Meanwhile, mainline Protestant churches
are wrestling with whether to ordain gay clergy and perform same-sex wedding
ceremonies. Indeed, the ordination and marriage of gay persons has been a
growing wedge between the socially liberal and conservative wings of the
Episcopal, Lutheran and Presbyterian churches, leading some conservative
congregations – and even whole dioceses – to break away from their national
churches as they become more open to gay clergy and gay marriage. (See Religious Groups' Official Positions on Same-Sex Marriage.)
The Beginning of the Debate
Gay and lesbian Americans have been
calling for the right to marry, or at least to create more formalized
relationships, since the 1960s, but same-sex marriage has only emerged as a
national issue within the last 20 years. The spark that started the debate
occurred in Hawaii in 1993, when the Hawaii Supreme Court ruled that an
existing law banning same-sex marriage would be unconstitutional unless the
state government could show that it had a compelling reason for discriminating
against gay and lesbian couples.
Even though this decision did not
immediately lead to the legalization of gay marriage in that state (the case
was sent back to a lower court for further consideration and Hawaiian voters
ultimately approved a referendum leaving the issue in the hands of the state’s legislature),
it did spark a nationwide backlash.
Over the next decade, legislatures in
more than 40 states passed what are generally known as Defense of Marriage Acts
(DOMAs), which define marriage solely as a union between a man and a woman.
While a few of these laws have been struck down, 37 states still have DOMAs on
the books. In addition, in 1996 the U.S. Congress passed, and President Bill
Clinton signed, a federal DOMA that, for purposes of federal law, defines
marriage as a union between a man and a woman. The statute also asserts that no
state can be forced to legally recognize a same-sex marriage performed in
another state. The enactment of a federal DOMA is significant since the federal
protections and benefits conferred by marriage are stipulated in over 1,000
laws and policies, including Social Security, family medical leave and federal
taxation and immigration policies. If the Supreme Court overturns DOMA, legally
married same-sex couples will be eligible for these federal protections and benefits.
In the late 1990s, Alaska, Nebraska and
Nevada amended their state constitutions to prohibit same-sex marriage. These
constitutional changes were aimed at taking the issue out of the hands of
judges. Conservatives, in particular, feared that without constitutional
language specifically defining marriage, many judges would take it upon
themselves to interpret other constitutional provisions broadly so as to allow
a right to same-sex marriage. Over time, this concern would prompt voters in
more than two-dozen other states to approve similar constitutional changes.
Amid widespread efforts in many states
to prevent same-sex marriage, there was at least one notable victory for
gay-rights advocates during this period. In 1999, the Vermont Supreme Court ruled
that gay and lesbian couples were entitled to all the rights and protections
associated with marriage. However, the court left it up to the Vermont legislature
to determine how to grant these rights to same-sex couples. The following year,
the legislature approved a bill granting gay and lesbian couples the right to
form civil unions, which grant most of the legal rights of marriage but not the
title.
The Massachusetts Decision and Its
Aftermath
For a while, the debate over gay
marriage seemed to fade from the public eye. But the issue was suddenly
catapulted back into the headlines in November 2003, when the highest state
court in Massachusetts ruled that the state's constitution guaranteed gay and
lesbian couples the right to marry. Unlike the Vermont high court's decision
four years earlier, the ruling in this case, Goodridge v. Massachusetts Department of Public
Health, left the Massachusetts legislature no option for how to
implement the court's decision: the court required the legislature to pass a
law granting full marriage rights to same-sex couples. (See The Constitutional Dimensions of the Same-Sex Marriage
Debate.)
The Massachusetts decision led to a
significant backlash at the federal and state levels. In the U.S. Congress,
conservative lawmakers, with support from President George W. Bush, attempted
to pass an amendment to the U.S. Constitution that would have banned same-sex
marriage nationwide. However, efforts to obtain the two-thirds majority needed
in both houses to pass the amendment fell short in 2004 and again in 2006.
While the proposed constitutional
amendment failed, opponents of gay marriage had better luck at the state level.
Prior to 2004, only three states had approved constitutional amendments banning
same-sex marriage. In 2004, however, voters in 13 states passed referenda
amending their constitutions to prohibit same-sex marriage. Fifteen additional
states took the same step between 2005 and 2012, bringing the total number of
states with gay marriage bans in their constitutions to 30. Perhaps the biggest
and most surprising of these victories came in 2008, when voters in the
nation’s largest and one of its most socially liberal states, California, approved
Proposition 8, which writes a same-sex marriage ban into the state
constitution. As already noted, Proposition 8 has subsequently been struck down
in federal court, although the gay marriage ban is still in force, pending an appeal
to the Supreme Court. (See Graphic: Same-Sex Marriage State-by-State.)
Most of the states that have approved
constitutional amendments banning gay marriage are located in the more socially
conservative South and Midwest. Likewise, seven of the nine states that have
legalized gay marriage – Connecticut, New Hampshire, Maine, Maryland, Massachusetts,
New York and Vermont – are in the more socially liberal Northeast. Between the
coasts, only one state, Iowa, has so far recognized gay marriage, in this case
as the result of a court decision. On the West Coast, only Washington State has
legalized gay marriage as of now.
Civil Unions and Domestic Partnerships
While battles have been raging in many
states over whether to accept or ban same-sex marriage, a number of states have
enacted laws that establish civil unions or domestic partnerships, both of
which aim to give gay and lesbian couples many or most of the rights and
responsibilities of matrimony without actually granting them the right to wed.
Civil unions were first created in Vermont in response to a 1999 ruling by the
Vermont Supreme Court ordering the state legislature to provide same-sex
couples "the common benefits and protections that flow from marriage under
Vermont law." (Vermont has since enacted a same-sex marriage law that
supersedes its civil union statute.) Since 2007, five states – New Jersey,
Illinois, Hawaii, Delaware and Rhode Island – have enacted civil union
statutes.
Meanwhile, five states – California,
Oregon, Nevada, Colorado and Wisconsin – currently have domestic partnership
laws in force. These statutes range from granting limited rights to same-sex
couples (Colorado) to essentially duplicating the full range of rights and
responsibilities of marriage (California).
The Road Ahead
Gay marriage advocates hope their recent
victories in states like New York, Maryland, and Washington will give their
movement greater momentum, and even a sense of inevitability. The recent swing
in public opinion – from a solid majority opposed to same-sex marriage to a
plurality slightly in favor of allowing gays and lesbians to wed – also has
been cause for optimism among gay-rights activists.
At the same time, same-sex marriage
opponents still have a much better record at the ballot box than do supporters
of gay marriage. In spite of their losses in four states during the 2012
election, opponents have succeeded in adding language banning same-sex marriage
to 30 state constitutions, most recently in North Carolina. Because of this
past record, they believe that they can still win statewide races on the issue,
particularly in more socially conservative to moderate parts of the country.
In the coming year or so, the U.S.
Supreme Court could emerge as the most crucial player in the debate. The court’s
decision to review the DOMA and Proposition 8 cases means that it has an
opportunity to determine whether the U.S. Constitution affords same-sex couples
the right to marry. Of course, in both cases, the court could decide to skirt
the constitutional question and rule narrowly instead. However, if the court
does rule that the U.S. Constitution gives gay and lesbian couples the right to
marry, same-sex marriage would become legal throughout the United States. Obviously,
such a ruling would be a game-changing victory for same-sex marriage advocates.
Likewise, a ruling that the U.S. Constitution
does not guarantee the right of same-sex couples to marry would be a victory
for gay marriage opponents, though not on the same scale. While such a decision
might preclude many future court challenges, it would not overturn existing state
laws allowing same-sex marriage. Furthermore, it would not prevent state
legislatures from granting marriage rights to same-sex couples in the future.
Instead, it would largely preserve the status quo, and the fight over same-sex
marriage would continue.
This report was written by David Masci, senior researcher, Pew Research Center’s Forum on Religion & Public Life, and Ira C. Lupu, F. Elwood and Eleanor Davis Professor of Law Emeritus at The George Washington University.
Footnotes:
1 According to a recent report by the Pew Research Center, the number of births
in the U.S. to unmarried women has grown from 28% in 1990 to 41% in 2010. For
more information, see: http://www.pewsocialtrends.org/files/2012/11/Birth_Rate_Final.pdf (PDF) (return to text)
Photo credit: Martin Ruetschi/Keystone/Corbis