• "Do you strongly favor, favor, oppose, or strongly oppose allowing gays and lesbians to marry legally?" (Margin of error three percent)

• "Do you strongly favor, favor, oppose, or strongly oppose allowing gay and lesbian couples to enter into legal agreements with each other that would give them many of the same rights as married couples? (Margin of error three percent)

Pew has since done another study in March 2006 and found that only 51% oppose gay marriage, with 39% supporting it, and the level of "strongly opposing" gay marriage has fallen from 42% to 28%.Less Opposition to Gay Marriage, Adoption and Military Service, The Pew research Center, March 22, 2006. (Accessed July 5, 2006)

February 2006 Zogby International poll of 802 likely New Jersey voters, MOE +/- 3.5 percent commissioned by Garden State Equality

56% of New Jersey supports marriage equality for same-sex couples

39% of New Jersey opposes marriage equality for same-sex couples

67% of New Jersey opposes a state constitutional ban on marriage equality for same-sex couples

28% of New Jersey supports a state constitutional ban on marriage equality for same-sex couples

Complete poll results at Garden State Equality's website, www.GardenStateEquality.org

Legal Issues

Federal-Level

In the United States, proponents of equal marriage rights for same-sex couples observe that there are over 1,049 federal laws in which marital status is a factor, as well as state and private benefits (family memberships, discounts, etc) denied same-sex couples by excluding them from participating in marriage. A legal denial of federal rights or benefits, they say, directly contradicts the 14th Amendment of the US Constitution which provides for equal protection and substantive due process under the law: rights conferred to one person cannot be denied to another.

In the 2003 case before the Supreme Court of the United States titled Lawrence v. Texas, the court held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. Many proponents of same-sex marriage believe that this ruling, especially when combined with the 1967 ruling in Loving v. Virginia that eliminated anti-miscegenation laws, paves the way for a subsequent decision invalidating state laws prohibiting same-sex marriage. However, these proponents often do not mention, or are not aware, of the United States Supreme Court's summary affirmance in the case of Baker v. Nelson 409 U.S. 810. This decision, binding on all lower federal courts, clearly distinguishes Loving, and establishes the right of the individual States to uphold traditional opposite-sex marriage.

Despite Baker, many proponents of same-sex marriage hope for a challenge to the Defense of Marriage Act (DOMA) under the equal protection clause of the Fourteenth Amendment. However, the high court has consistently ruled that government-sponsored discrimination on the basis of sexual orientation is not subject to strict scrutiny or even heightened scrutiny; thus such discrimination is generally permissible under the federal Constitution.

Challenges to DOMA have already been rejected by several federal courts, including a decision by Judge James S. Moody in the case of Wilson v. Ake. Most legal experts expect these challenges to fail, especially given the conservative tilt of the federal courts.

The federal Defense of Marriage Act was passed with the support of President Clinton in 1996. This bill defines marriage as a "legal union between one man and one woman," refuses federal recognition to same-sex marriages, and allows U.S. states not to recognize same-sex marriages performed in other U.S. states (currently only the Commonwealth of Massachusetts) or other countries. Since then, various states have passed a law to assert that they do not recognize same-sex unions, nor will they recognize such unions legally recognized in other states. These laws are sometimes referred to as "Mini-DOMAs."

Some opponents of same-sex marriage, wanting to ensure that the constitutionality of such laws cannot be challenged in the courts under the Full Faith and Credit clause, Equal Protection Clause or Due process clause of the United States Constitution, have proposed a Federal Marriage Amendment to the constitution that would prevent the federal government or any state from providing a marriage or the legal incidents thereof to a same-sex couple, whether through the legislature or the courts.

The amendment was debated in the United States Senate, but on July 14, 2004, a procedural motion to end debate failed by a wider-than-expected margin of 48 votes to 50. ^* This effectively prevented the amendment from facing a full Senate vote.

Also in 2003, lesbian comedian Rosie O'Donnell's court case with ex-colleagues raised another new issue when O'Donnell's life partner, Kelli, was forced to testify against O'Donnell. Under United States law, spouses cannot be forced to testify against each other; but because same-sex couples are not allowed to marry, they are denied this courtroom right, part of a long list of benefits of marriage in the United States. They married on February 26, 2004 in San Francisco, but this was later nullified by the California Supreme Court.

As of April, 2006, California same-sex couple Arthur Smelt and Christopher Hammer had a marriage-rights case pending in the federal Ninth Circuit Court of Appeals. Gay-rights groups including the Lambda Legal Defense and Education Fund and the American Civil Liberties Union did not support the lawsuit, on the grounds that it is likely to lose in the Supreme Court and set an unfavorable precedent. The Court eventually tossed out the suit in the spring of 2006, saying that the couples must wait for a ruling by the Appeals Court in California. Kravets, David, Two paths toward one goal: same-sex marriage, Associated Press, April 2, 2006.

State-Level

Hawaii and Maine's domestic partnership and reciprocal benefit laws provide similar benefits, but both stop short of full equality on a state level.

There are also bills in both chambers of the New York State legislature that would extend marriage rights to same-sex couples. These bills were introduced in early 2003 and are currently still in committee.

In all cases, no rights that originate with the federal government attach to civil union, domestic partnership, etc., because the several states do not have jurisdiction over the Government of the United States.

Impact of Foreign Laws

Immediately after the June 2003 ruling legalizing same-sex marriage in Ontario, a number of American couples headed or planned to head to the province in order to get married. A coalition of American national gay rights groups issued a statement asking couples to contact them before attempting legal challenges, so that they might be coordinated as part of the same-sex marriage movement in the United States.

At present, same-sex marriages are recognized nationwide in the Netherlands (and possibly Aruba), Belgium, Spain and Canada. On 1 December, 2005, South Africa’s Constitutional Court extended marriage to include same-sex couples which will go into effect by December 2006. Same-sex marriages are also recognized in parts of other countries.

Latvia and Uganda^* have amended their constitutions to prohibit same-sex marriage, and Nigeria is planning to do the same.

Legislative Action on Same-Sex Unions

Federal-Level

The Act defines "marriage" and "spouse" for purposes of federal law.

The impact of the second part of the Act is less clear. Traditionally, states have been allowed to regulate the marital status of their own citizens. A narrow interpretation of the Act only codifies this policy. The Act was arguably passed out of concern that same-sex couples from all over the U.S. would fly to Hawaii, get married, and demand recognition in their home states (although Hawaii ultimately never allowed same-sex marriage).

A broad reading of the Act would allow states to refuse to recognize same-sex marriages of non-citizens, as well. For example, a same-sex couple from Massachusetts might get married in Massachusetts, and later move to another state, where the state would have no obligation to recognize the marriage. The Act may also mean that the state could refuse to recognize the marriage even if the couple were only passing through transiently (relevant, for example, in emergency medical decision-making), and not moving permanently. Either of these broader readings would be an exception to the Full Faith and Credit Clause.

State-Level

Efforts to Enable Same-Sex Unions

• Granted limited rights.
• Expanded rights included.
• Gave domestic partnerships legal rights of married couples.
• Did not come to up and down floor vote.
• Maryland Governor vetoed legislation; a veto override would require two-thirds support.
• The vote failed to receive the absolute majority (40 votes) required to pass.
• The bill failed to come to a floor vote in the House of Representatives.
• California Governor vetoed legislation; a veto override would require two-thirds support.

Efforts to Ban Same-sex Marriage

• The Supreme Court of Tennessee rejected arguments by the ALCU in its July 14th decision, ruling that they“failed to establish that they have standing to bring this lawsuit.”

• Unlike other states, it appears the constitutional amendment in Hawaii may not explicitly ban same-sex marriage, although clearly this was the intent. In 1993, the Supreme Court of Hawaii ruled the state's prohibition on same-sex marriage could be unconstitutional. The majority ruled that the denial of marriage licenses to same-sex couples simply because one partner is of the same sex as the other partner was sex discrimination and presumed facially unconstitutional under both the equal protection provision and the Equal Rights Amendment of the state constitution. The Court remanded the case for trial, ordering that on remand the burden of proof would be on the state to show that the denial of marriage licenses to same-sex couples "furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights." In 1996, Mr. Chang, a Circuit Court Judge, declared Hawaii's marriage statute allowing only heterosexual marriage to be unconstitutional. That ruling was appealed to the Supreme Court of Hawaii, which ruled in 1999, the decision was moot due to passage of a constitutional amendment, which allows the Legislature to define marriage as between a man and a woman.

• Ban declared unconstitutional by Judge Joseph Bataillon, Chief Judge of the U.S. District Court for the District of Nebraska. The ruling was appealed to the Eighth U.S. Circuit Court of Appeals based in St. Louis[http://www2.ljworld.com/news/2005/jun/10/nebraska_samesex/?kansas_legislature. That Court issued a ruling that re-instated the ban, declaring in part that it was a legitimate state interest. Washington Post

• On October 06, 2004, a Louisiana judge tossed out the approved amendment saying it had more than one purpose: banning not only same-sex marriage, but other forms of partner recognition, such as civil unions. Shortly after, the Louisiana Supreme Court ruled the amendment valid, and thus it currently stands. ^*

• Ban declared unconstitutional on May 16th, 2006 by Fulton County Superior Court Judge Constance C. Russell saying it violated the single-subject rule in Georgia's constitution. Governor Sonny Perdue said he was disappointed by the decision, which he said ran contrary to the voice of Georgia voters. The following day, the ruling was appealed to the Supreme Court of Georgia. On July 6, 2006, the Georgia Supreme Court ruled that the ban did not violate the single-subject rule and overturned Judge Russell's ruling, reinstating the ban. [http://www.cnn.com/2006/LAW/07/06/ga.gay.marriage.ap/index.html

Timeline

Minnesota

Arizona

Colorado

Washington, DC

Hawaii

1998: Hawaii's voters amend their Constitution to allow state legislature to restrict marriage to men and women only, rendering the equal protection clause moot. ^*

Puerto Rico

Alaska

November 3, 1998: The state's voters amend their constitution to require that all marriages be between a man and a woman.

Vermont

2000: The legislature passes a law creating civil unions for same-sex couples, giving them all rights and benefits of marriage under Vermont law.

Massachusetts

Main article: Same-sex marriage in Massachusetts

New Jersey

March 8, 2004: The Deputy Mayor of Asbury Park, New Jersey marries a same-sex couple who had a license issued by the town clerk. New Jersey has a 72-hour waiting period between issuing a license and performing a ceremony, and the original license was issued without fanfare on March 5.

March 9, 2004: Numerous same-sex couples converge on the clerk's office once it opens, determined to get their own licenses before a threatened injunction by State Attorney General Peter C. Harvey could halt the process. ^* By the end of the day, no such injunction had been issued, although the attorney general had sent letters to Asbury Park officials warning them that they could face prosecution if they continued.

March 10, 2004: In response, the city council votes unanimously to freeze all 16 pending license applications, and sue the state to have those licenses — along with the one marriage which was actually performed — declared valid.

February 15, 2006 New Jersey Supreme Court hears case in favor of legalizing gay marriage in the State of New Jersey. The final Supreme Court decision is still pending.

California

New Mexico

The state governor, Bill Richardson, has requested that the state legislature enact a civil union bill.

New York

Wisconsin

March 12, 2004: The Wisconsin State Senate voted 20-13 to pass that state's amendment, which must still be passed again in next year's legislature, and be voted on in a state-wide referendum. ^*

December 6, 2005: The Wisconsin State Senate voted a second time in favor of the amendment. The vote is 19-14 and is along party lines.

February 28, 2006: The Wisconsin State Assembly voted for the second time in favor of the amendment. The question will appear on the November 7, 2006 ballot.

Oklahoma

July, 2005: The tribe's Judicial Appeals Tribunal upheld the couple's right to marry, confirming that if they should refile for certification, it would be granted. ^* Although Oklahoma does not recognize same-sex marriages performed in other states, Oklahoma does recognize all Cherokee marriages. It is unclear how Oklahoma would react if the Cherokee tribal courts decide that this marriage is valid.

Oregon

Main article: Same-sex unions in Oregon

Rhode Island

Washington

Utah

Utah Governor Jon Huntsman, Jr. proposed reciprocal benefits for all same-sex couples living in the state. The measure was defeated in the state Senate by 8 votes and he has promised to revisit the issue in 2006. In the meantime Salt Lake City Mayor Rocky Anderson, a same-sex marriage supporter, has created domestic partnerships for city employees.

Previously in 2004, a constitutional amendment was passed defining civil marriage to be limited to opposite-sex couples. It was approved by 66% of voters, a much lower than expected number in what analysts had thought would be a more socially conservative state. Two counties: Grand County and Summitt County rejected it outright while the state's most populated county with 1,000,000 residents, Salt Lake County narrowly approved it by less than 4%.

The amendment defines marriage as "... the legal union between a man and a woman. No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect." Many believe that the second part of the amendment is the reason why only 66% of voters approved the amendment. Nonetheless, other states with similar language such as Louisiana had 78% of the voters vote in favor of the bans. In the aftermath when the state governor introduced legislation creating reciprocal benefits some national religious conservative groups called on members nationwide to e-mail the Utah state legislature against the proposal. Polls conducted by the Salt Lake Tribune and the Deseret News, the two major daily Utah newspapers found a simple majority of Utah residents support some form of legal recongition for same-sex couples, but not same-sex marriage.

The U.S. Census found that same-sex couples in Utah have among the highest percentage in the U.S. raising children together. Utah's gay community is also seen as powerful and caused the Salt Lake City area to be named one of the top 51 places in America for gay couples. Since the 1990s Salt Lake City has been marked by the elections of an openly gay woman and an openly gay man, representing the city in the State House and Senate, respectively. The leader of the Episcopal Church's Diocese of Utah from 1971 to 1986, which is based in Salt Lake, revealed that he had married his same-sex partner in 2004 and is an active member of the current Church and Utah's largest Jewish congregation, the Salt Lake Kol Ami, elected a gay woman in 2003 to be their Rabbi. Metropolitan Salt Lake City has also witnessed the election of two transgender officials, one in Sandy, and another in Tooele. The Utah Pride Festival is the state's second most attended parade, attracting about 60,000 participants in some years.

In 2006 the LDS Church stepped up its campaign against same-sex marriage by mailing letters to congregations asking them to lobby Congress for the Federal Marriage Amendment. This resulted in a controversy when the prestigious Church owned Brigham Young University philosophy professor called banning same-sex marriage "immoral". The professor was subsequently fired without regarding to the unversity's own claim of its stand on academic freedom. In 2004 the state governor, a Church member, also said he did not know whether homosexuality was a sin at all.

Ohio

Nebraska

July 14, 2006: The 8th U.S. Circuit Court of Appeals reinstated the ban ^*. The ruling states "laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States."

Connecticut

Maryland

February 2, 2006: A proposed constitutional amendment to ban same-sex marriage was rejected by the Judiciary Committee of the Maryland House of Delegates. In one particularly fiery exchange on the floor of the legislature a Maryland state senator, Nancy Jacobs, demanded of American University law professor Jamie Raskin, "Mr. Raskin, my Bible says marriage is only between a man and a woman. What do you have to say about that?" In response, Raskin rebuffed, "Senator, when you took your oath of office, you placed your hand on the Bible and swore to uphold the Constitution. You did not place your hand on the Constitution and swear to uphold the Bible."Prior to the vote, some committee members, who opposed the marriage ban, amended the bill to create civil unions in Maryland. This resulted in a unanimous vote to reject the proposed constitutional amendment. [http://www.baltimoresun.com/news/local/bal-te.md.marriage03feb03,1,4566994.story

Georgia

6 July, 2006 Ban upheld: The state Supreme Court reversed a lower court's ruling, deciding unanimously that the ban did not violate Georgia's single-subject rule for ballot measures. The ban had been approved by 76 percent of voters in 2004. ^*

Tennessee

1996: The Tennessee state legislature passes the The Defense of Marriage Act which defines marriage as a union between "one man and one woman." 2004: A constitutional ban on same-sex marriage is passed by the state legislature. The House votes 85-5. The Senate votes 28-1. It must pass for two consecutive years before being put on the ballot.

2005: The constitutional amendment is passed for the second time. The House votes 88-7. The Senate votes 29-3. The amendment is scheduled to appear on the ballet in November 2006.

June 2006: The Tennessee Supreme Court hears arguments by the ACLU that the amendment should not go before voters because notice of the amendment was not made public at the required time.^*

July 2006: The Tennessee Supreme Court decides that voters will be able to decide on the gay marriage amendment by vote in November. ^{* *}

Case law

• ''Lawrence v. Texas, federal Supreme Court (2003), (a state cannot criminalize sex between two unrelated consenting adults, homosexuals have a right to dignity in their lives)
• Romer v. Evans (1998), federal Supreme Court, (a state cannot deem one class of persons a stranger to its laws and protections)
• Adams v. Howerton, 673 F.2d 1036 (9th Cir.), cert. denied, 458 U.S. 1111 (1982)
• Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971)
• Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973)
• Singer v. Hara, 522 P.2d 1187 (Wash. App. 1974)
• De Santo v. Barnsley, 476 A.2d 952 (Pa. Super. Ct. 1984)
• In re Estate of Cooper, 564 N.Y.S.2d 684 (N.Y. Fam. Ct. 1990)
• Dean v. District of Columbia, 653 A.2d 307 (DC 1995)
• Jennings v. Jennings, 315 A.2d 816, 820 n.7 (Md. Ct. App. 1974) ("marriage is between only one man and one woman.")
• Storrs v. Holcomb, 645 N.Y.S.2d 286 (N.Y. App. Div. 1996) (New York does not recognize or authorize same-sex marriage) (this ruling has since been changed, New York does recognize same-sex marriages performed in other states)
• In re Estate of Hall, 707 N.E.2d 201, 206 (Ill. App. 1998) (no same sex marriage will be recognized; petitoner claiming existing same-sex marriage was not in a marriage recognized by law)
• Burns v. Burns, 560 S.E.2d 47 (Ga. App. 2002) (state will only recognize marriage between one man and one woman)
• In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002) (a post-op male-to-female transgendered person may not marry a male, because this person is still a male in the eyes of the law, and marriage in Kansas is recognized only between a man and a woman)
• Rosengarten v. Downes, 806 A.2d 1066 (Conn. 2002) (state will not recognize Vermont civil union)
• Frandsen v. County of Brevard, 828 So. 2d 386 (Fla. 2002) (State constitution will not be construed to recognize same-sex marriage; sex classifications not subject to strict scrutiny under Florida constitution)
• Standhardt v. Superior Court ex rel. County of Maricopa, 77 P.3d 451 (Ariz. App. 2003) (no state constitution right to same-sex marriage)
• Lewis v. Harris, 2005 WL 23191114 (New Jersey Appellate Division) (unpublished) (New Jersey is not required to allow same-sex marriage, on appeal to Supreme Court)
• Morrison v. Sadler, 2003 WL 23119998 (Ind. Super. Ct. 2003) (Indiana's Defense of Marriage Act is found valid)
• Andersen v Sims (August 2004 decision from the Superior Court in Washington State legalizing same-sex marriage. The decision awaits confirmation by the Washington Supreme Court before licences can be issued.)

Notes