From: National Conference Of State Legislatures
Last Update: November, 2008
Quick facts on key states:
* Issues marriage licenses to same-sex couples: Massachusetts, Connecticut, California*
* Recognizes same-sex marriages from other states: Rhode Island
* Allows civil unions, providing state-level spousal rights to same-sex couples: Connecticut, Vermont, New Jersey, New Hampshire
* Statewide law provides nearly all state-level spousal rights to unmarried couples (Domestic Partnerships): California, Oregon
* Statewide law provides some state-level spousal rights to unmarried couples (Domestic Partnerships): Hawaii, Maine, District of Columbia, Washington, Maryland
* The California Supreme Court ruled on May 15, 2008 that same sex couples have the right to marry in California. Proposition 8, which limits marriage to one man and one woman, was passed on November 4th, 2008. The decision is being appealed. It is unclear if the same-sex marriages performed before Proposition 8 was passed will remain valid.
Resources
NCSL's Same-sex marriage timeline provides a chronological account of significant events related to same-sex marriage since 2003.
A chart summarizing civil unions/domestic partnership state statutes provides information and links to laws in states that allow civil unions or domestic partnerships.
A table listing states with statutes defining marriage between one man and one woman, constitutional amendments defining marriage between one man and one woman, states without any laws prohibiting same sex marriage and states with constitutional amendments on the ballot this year.
Same-Sex Marriage Overview
In November 2003, the Massachusetts Supreme Judicial Court ruled that barring same-sex couples from civil marriage was unconstitutional. The Senate then asked the Court for an advisory opinion on the constitutionality of a proposed law that would bar same-sex couples from civil marriage but would create civil unions as a parallel institution, with all the same benefits, protections, rights and responsibilities under law. In February, the Court answered, "segregating same-sex unions from opposite-sex unions cannot possibly be held rationally to advance or preserve" the governmental aim of encouraging "stable adult relationships for the good of the individual and of the community, especially its children." Under this decision, the state of Massachusetts began issuing marriage licenses to same sex couples in May 2004.
This ruling is part of a larger public discussion of "marriage" and "family" that started in 1993 when the Hawaii Supreme Court ruled that laws denying same-sex couples the right to marry violated state constitutional equal protection rights unless the state could show a "compelling reason" for such discrimination. In 1996, a trial court ruled that the state had no such compelling reason and the case headed back to the Supreme Court. Voters adopted a Constitutional amendment in 1998, before the final ruling was issued, giving the Legislature the power to reserve marriage to opposite-sex couples and effectively ending the lawsuit.
In April 2000, Vermont approved landmark legislation to recognize civil unions between same-sex couples, granting them virtually all the benefits, protections and responsibilities that married couples have under Vermont law. The Vermont legislation was a result of the state Supreme Court ruling in Baker v. Vermont that said same-sex couples are entitled, under the state constitution's "Common Benefits Clause," to the same benefits and protections as married opposite-sex couples. The court ruled that the Vermont Legislature must decide how to provide these benefits and protections, either by legalizing marriage for same-sex couples or by establishing an alternative system. In April 2005, Connecticut became the first state to legalize civil unions without prompting from the courts.
The Vermont Legislature chose to preserve marriage as the "legally recognized union of one man and one woman," but at the same time create a parallel system of civil unions for same-sex couples that goes beyond existing "domestic partnership" and "reciprocal beneficiaries" laws that exist in California and Hawaii and in many localities in the U.S. today.
In October, 2006, the New Jersey Supreme Court ordered the legislature to redefine marriage to include same-sex couples or to establish a separate legal structure, such as civil unions, to give same-sex couples the same rights as heterosexual marriage couples. In late 2006, the New Jersey legislature passed a statute allowing civil unions beginning February 19, 2007. New Hampshire passed legislation authorizing civil unions, which will take effect on January 1, 2008.
On May 15, 2008, the California Supreme Court ruled that same-sex couples should have the right to marry. The ruling takes effect in mid-June, but could be stayed by the courts for six months, which would allow California residents to vote on a proposed constitutional amendment defining marriage between a man and a woman. If the amendment passes in November, same-sex marriage would again be banned in California.
Defense of Marriage Act (DOMA)
Congress enacted the Defense of Marriage Act (DOMA) in 1996, which bars federal recognition of same-sex marriages and allows states to do the same. Since 1996, many states have enacted legislation prohibiting same-sex marriages or the recognition of same-sex marriages formed in another jurisdiction. States have traditionally recognized marriages solemnized in other states, even those that go against the marriage laws of that particular state. Under the full faith and credit clause of the U.S. Constitution, states are generally required to recognize and honor the public laws of other states, unless those laws are contrary to the strong public policy of that state.
Over half of the states have passed language defining marriage between a man and a woman in their state constitutions. Arizona is the only state where a constitutional amendment on the ballot in a general election has failed (2006). Typically, constitutional amendments have passed with an overwhelming majority.
There have been several proposals before Congress to amend the federal Constitution, defining marriage as between a man and a woman and ensuring that states would not be required to recognize same-sex marriages from other jurisdictions. President Bush has announced his support for such an amendment, however, he is receptive to allowing states to "define other arrangements." This could indicate that the President does not favor enacting a federal ban on civil union or domestic partnership laws. Opponents of the amendment cite federalism concerns in addition to support for same-sex marriages. A constitutional amendment requires 2/3 of the U.S. House and Senate and 3/4 of the state legislatures for enactment. For a summary of proposed federal legislation from 2002 to present, click here.
Defense of Marriage Acts (DOMA)
Forty-one states currently have statutory Defense of Marriage Acts. Three of those states have statutory language that pre-dates DOMA (enacted before 1996) defining marriage as between a man and a woman. Thirty states have defined marriage in their constitutions. Arizona is the only state that has ever defeated a constitutional amendment defining marriage between a man and a woman (2006), but subsequently passed one in 2008.
States with Statutes Defining Marriage Between One Man and One Woman
Alabama
Alaska
Arizona
Arkansas
Colorado
Connecticut**
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland*
Michigan
Minnesota
Mississippi
Missouri
Montana
New Hampshire
North Carolina
North Dakota
Ohio
Oklahoma
Pennsylvania
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
Total: 41
*In January 2006, a state judge found the Maryland statute unconstitutional but it remains in effect pending appeal.
**In October, 2008, the Connecticut Supreme Court invalidated the state statute banning same-sex marriage
States with Constitutional Language Defining Marriage
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Florida
Georgia
Hawaii*
Idaho
Kansas
Kentucky
Louisiana
Michigan
Mississippi
Missouri
Montana
Nebraska
Nevada
North Dakota
Ohio
Oklahoma
Oregon
South Carolina
South Dakota
Tennessee
Texas
Utah
Virginia
Wisconsin
Total: 30
States Without Law Prohibiting Same-Sex Marriage
Massachusetts
New Jersey
New Mexico
New York
Rhode Island
Total: 5
States that passed a DOMA Constitutional Amendment in 2008
Florida
California
Arizona
Total: 3
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