Where is Gay Marriage Legal? 1

A Reference Guide to the Evolving Laws Surrounding Same-Sex Unions

Historically, marriage has only been permitted under U.S. state and federal law for heterosexual couples – one man and one woman. Recently, however, some jurisdictions have – either through legislation or by judicial determination – begun allowing same-sex couples to marry as well. This area of the law is ever-evolving (scroll down for a timeline of recent developments in the US).

The federal government has enacted the Defense of Marriage Act (DOMA) and does not recognize any same-sex marriage as valid for its purposes. Many states have passed their own versions of the Defense of Marriage Act. Some of those states have taken the extra step of amending their state constitutions to define marriage as between one man and one woman. This would theoretically keep the state-level DOMA from being found in violation of the state constitution.

This article will provide the latest run-down on where gay and lesbian marriages are legal.

States that allow same-sex marriage:

On April 7, 2009, the Vermont state legislature overrode the governor’s veto of a bill allowing same-sex couples to marry. Gay couples there will be allowed to marry beginning in September 2009.

States that recognize legal same-sex marriages performed in other jurisdictions:

On April 7, 2009, Washington D.C.’s council voted to recognize the legal marriages of same-sex couples married in other states.

States that allow same-sex domestic partnerships or civil unions:

States in flux:

In May 2008, the California state supreme court ruled that same sex couples could not be prohibited from the right to civil marriage. The state began marrying same sex couples in June 2008. In November 2008, Proposition 8, a ballot initiative to amend the state constitution to ban same sex marriage, passed by a slim margin of the vote. The state supreme court upheld that vote in May, 2009. Those same sex marriages which were entered into in California between June and November, 2008 remain valid. As the United States examines its legal and moral positions on the marriage of same-sex couples, countries around the world are also sharing in the debate.

Nations that allow same-sex marriage:

  • Canada
  • Belgium
  • Netherlands
  • Norway
  • South Africa
  • Spain
  • Sweden

On April 1, 2009, the Swedish parliament voted to allow same-sex couples to marry. Sweden previously had only allowed gay couples to enter into civil partnerships.

Nations that recognize legal same-sex marriages performed in other jurisdictions:

  • France
  • Israel

Nations that allow same-sex domestic partnerships or civil unions:

  • Australia (in Tasmania, Victoria and Australia Capital Territory)
  • Croatia
  • Czech Republic
  • Denmark
  • Finland
  • France
  • Germany
  • Greenland
  • Hungary (limited unregistered partnerships)
  • Iceland
  • Luxembourg
  • Mexico (in Meixico City and the state of Coahuilla)
  • New Zealand
  • Portugal
  • Slovenia
  • Switzerland
  • United Kingdom
  • Uruguay

Recent Developments in the US:

May 26, 2009: California High Court Upholds Gay Marriage Ban California’s Supreme Court upheld the state’s constitutional gay-marriage ban but said the 18,000 same-sex weddings that took place before the prohibition passed are still valid. April 3, 2009: Iowa Supreme Court Unanimously Holds Same-Sex Marriage Ban Unconstitutional The Iowa Supreme Court held that the Iowa statute limiting civil marriage to a union between a man and a woman violates the equal protection clause of the Iowa state constitution. The court directed that the marriage statutes be interpreted to allow gay and lesbian couples full access to the institution of civil marriage. Same-sex marriages will be allowed in Iowa beginning April 24, 2009. Opponents immediately began mobilizing to attempt to amend the state’s constitution in a manner similar to Proposition 8 in California.

December 1, 2008: California Supreme Court Agrees to Review the Validity of Proposition 8 The California Supreme Court has agreed to review the validity of Proposition 8, the barely-successful ballot initiative which seeks to amend the California Constitution to prohibit same sex marriages. Suit was filed by several legal activist groups on behalf of six same-sex couples. While the case is pending (and presumably afterwards too if the suit is unsuccessful in rejecting Prop 8), California Attorney General Jerry Brown has indicated that any same sex marriage performed in California between June 16 and the passage of Prop 8 will continue to be recognized by California. Brown stated that the language of the proposition has no suggestion that it would be retroactive to disallow those couples previously married. June 17, 2008: Same Sex Marriages Commenced in San Francisco on June 16, Rest of State on June 17 A Supreme Court ruling decreed that same sex marriages could begin at 5 p.m. on June 16, as it did in San Francisco, though most counties waited until June 17. Since California doesn’t have a residency requirement (you don’t have to live in California to get married there), it is expected that thousands of non-resident gay couples will travel to the state to get married in the coming months. May 28, 2008: California Counties can Start Issuing Marriage Licenses to Same Sex Couples June 17 “Barring a stay of a historic California Supreme Court ruling, same-sex couples will be able to wed in the state beginning June 17, according to a state directive issued Wednesday. The state said it chose June 17 because the state Supreme Court has until the day before to decide whether to grant a stay of its May 15 ruling legalizing gay marriage. Gay-rights advocates and some clerks initially thought couples would be able to wed as early as Saturday, June 14. The court’s decisions typically take effect 30 days after they are made.” Source: iht.com May 15, 2008: California Courts Rule Ban on Same Sex Marriage Unconstitutional The California Supreme Court has struck down the State’s ban on same-sex marriage. In a 4-3 opinion, the court held, “[u]nder these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.” Referring to California Family Code section 300, the Court ordered that “the language of section 300 limiting the designation of marriage to a union ‘between a man and a woman’ is unconstitutional and must be stricken from the statute, and… the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples.”

Looking for legal answers?



Discussion

  • Would a marriage contract between 2 men that is conditional on the law being interpreted by SCOTUS or changed by CA congress be valid and therefore effective on the meeting of the condition(s)?