A survey of same-sex marriage in the United States
Vail, CO, Colorado
This year’s California Proposition 8 eliminated in that state the right of same-sex couples to marry.
Shortly before passage of the measure, the California Supreme Court had ruled that same-sex marriage was a “fundamental right” and, perhaps anticipating a backlash, same-sex couples rushed to the altar. The Proposition amended the state constitution by adding the words that “Only marriage between a man and a woman is valid or recognized in California.” That was the measure in its entirety.
Between the proponents and opponents of the measure, more than $73 million was spent in an often-vitriolic campaign, more than any other ballot measure in any state and second only to the presidential contest. Obviously, there are strong feelings here.
Proponents argued that failure to change the state constitution would require changes in school curriculum and threaten church tax benefits. Opponents argued simple fairness ” to exclude one class of persons from the benefits of marriage was simply wrong. It is perhaps ironic that 70 percent of black voters, who with the election of Barack Obama that day had taken such an enormous stride towards Martin Luther King’s ideal of the content-based valuation of a person’s worth, voted in favor of limiting same-sex couples’ rights.
The legal challenges have already started. The main thrust of the suits is the argument that revoking the right of same-sex couples to marry amounted to a constitutional “revision” rather than a constitutional “amendment.” Under California law, a revision requires the prior two-thirds vote of both houses of the California legislature rather than a simple majority of the electorate.
One of things left unsettled is how the 18,000 same-sex marriages which took place before the measure’s passage would be affected. Simply, is the reach of Proposition 8 retroactive in its scope? As such, one issue in any survey of same-sex marriage in America is whether or not those couples married in California before Nov. 4 are ” or will continue to be ” legally wed.
It is worth noting that similar measures were adopted in this election cycle in both Florida and Arizona, although their effects are in a sense less far-reaching insofar as same-sex marriage was already illegal in those states. Unlike California, no rights have been revoked.
Where, then, is same-sex marriage sanctioned? Only Massachusetts (since 2003) and Connecticut (since 2008).
Under the 1996 Defense of Marriage Act, federal law does not recognize same-sex marriage. Although most aspects of marriage affecting daily life are determined by the states, the federal Government Accountability Office cites more than 1,100 rights and protections conferred to citizens upon marriage. These include Social Security and veteran’s benefits, health insurance, Medicaid, hospital visitation, estate taxes, pensions and retirement savings, family leave and immigration law.
Vermont, New Jersey, New Hampshire and California (although now, understandably in a state of flux) have created legal unions (or civil unions) that, while not called marriage, confer the same rights and responsibilities of marriage under state law to same-sex couples. Hawaii, Maine, Oregon, Washington and Washington D.C. have similarly created legal unions for same-sex couples but with varying rights and responsibilities and not equivalent to marriage.
Some states that recognize same-sex unions also recognize similar relationships contracted in other states but those relationships are not recognized in states without such legal recognition. New Mexico, New York and Rhode Island recognize foreign same-sex marriages. Colorado neither recognizes same-sex marriages nor civil unions.
Same-sex marriage bans
Of the 50 states, 26 have constitutional amendments explicitly barring same-sex marriage, and 43, including some of those that have created and recognize civil unions, have statutes restricting marriage to two persons of the opposite sex. Several states ban any legal recognition of same-sex unions that are the equivalent of marriage.
Canada’s nationwide legalization of same-sex marriage in 2003 presents some interesting conundrums under U.S. law in that Canada and the U.S. have a history of respecting marriages contracted in either country and Canada has no citizenship or residency requirements to receive a marriage certificate.
In addition to Canada, same-sex marriages are recognized nationwide in Aruba, Belgium, France, Israel, Netherlands, Netherland Antilles, Norway, Spain and South Africa.
As the challenges to Proposition 8 wind through the California courts, they may prove the harbinger of what is to become of same-sex marriage in this country, at least in the near future. If the challenges are successful, particularly considering the size and influence of our largest state, a major victory will have been won. If unsuccessful, the battle for equal rights and equal protections may have just begun.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins may be reached at 970-926.4461 or at his e-mail address, firstname.lastname@example.org.