History of Same-Sex Marriage Law in the United States

Same-sex couples now have a legal right to marry and to have their marriages recognized in every state. Before that ruling, same-sex marriage was one of the most controversial topics in the already complex realm of gay, lesbian, bisexual, and transgender rights (LGBTQ).

In 2015, the U.S. Supreme Court ruled that same-sex couples have a fundamental right to marry. 

Massachusetts was the first state to recognize gay marriage in the United States, with a landmark court ruling in 2004. The City of San Francisco had granted a marriage license to a lesbian couple the same year. Same-sex marriage did not have legal recognition in California until 2008. The two acts kicked off a decade of legal challenges ending with the Supreme Court decision Obergefell v. Hodges in 2015.

This article presents a history of same-sex marriage rights.

Marriage Equality and Civil Rights

Most human rights activists believe same-sex couples should have the same marriage rights as heterosexual couples. This is a simple question of civil rights. This argument relies on the constitutional concepts of equal protection and due process. Same-sex couples have the same rights and privileges as heterosexual couples. In 2001, the Netherlands became the first country in the world to acknowledge this and granted same-sex couples the right to wed. Belgium followed suit two years later. South Africa was the first nation to legalize same-sex marriage through court rulings in 2006.

Gay rights entered the civil rights movement in the United States with the Stonewall Riots of 1969. During the 1970s, gays and lesbians argued that sexual orientation was as much a part of one's identity as race or gender. Unfortunately, state laws did not recognize this. During the AIDS crisis of the 1980s, gay partners found themselves shut out of hospitals that did not recognize their domestic partnership as valid.

In 1984, Berkeley, California, became the first city in America to grant civil union status to same-sex partners. This lets partners share insurance benefits. In 1985, West Hollywood offered a domestic partnership registry to all residents. Civil unions provided the only alternative to marriage until the early 2000s.

Opposition to Same-Sex Marriage

The primary opposition to same-sex marriage has come from conservative religious groups. These groups cite traditional Judeo-Christian, Islamic, and other religious texts, saying that homosexuality is a sin.

Other arguments are on traditional family values:

  • Procreation. Since only heterosexual couples can procreate, only heterosexuals should marry.
  • Sodomy. Most state laws define “sodomy" broadly as any sexual act that is not procreative sex between a man and a woman. Surprisingly, 14 states still have anti-sodomy laws on the books, but the Supreme Court ruling in Lawrence v. Texas in 2003 invalidated these.
  • Traditional family units. Children function better in stable two-parent households. Traditionalists believe the parents must be one male father and one female mother.

Science and the law do not bear out these beliefs. Most of these arguments were refuted in the Obergefell Supreme Court ruling.

Legal Benefits of Marriage Equality

The debate over gay marriage extended beyond the right to marry. Same-sex couples sought the same tax and estate advantages, rights to surviving children, community property rights, and health care benefits as heterosexual couples.

American businesses were initially slow to recognize gay couples for purposes of tax and insurance benefits but quickly bowed to activism within their walls. The benefits of having happy employees outweighed any stigma of extending financial benefits to gay and lesbian workers. The state legislatures were less responsive.

Civil Marriage, Civil Unions, and Domestic Partnerships

In the early 1980s, some jurisdictions began offering civil unions as a state alternative to marriage. It was a stop-gap measure until the legalization of same-sex marriage could be achieved. Civil-rights activists were not happy with the alternative. There are some key differences between a marriage and a civil union.

  • Civil marriage. Recognized in all 50 states. Partners are legally married and may receive death benefits, federal benefits, tax breaks, insurance, and other benefits. Married partners can also make legal and medical decisions for one another.
  • Civil union. Valid only in the state where it was formalized. Grants only the entitlements the state provides. Gives some protections for state taxes, state benefits and insurance, and company benefits. Are not "portable," that is, are not recognized across state lines.
  • Domestic partnership. A domestic partnership may be the same as a civil union, depending on the state. It may also be an informal relationship or a common-law marriage. A domestic partnership may have no protections or benefits.

Early Legal Challenges

The Hawaii Supreme Court's 1993 decision in Baehr v. Lewin (Miike) marked the beginning of serious litigation on same-sex unions. In Baehr, the plaintiff sued the State of Hawaii, saying that the state's refusal to issue her and her partner a marriage license was illegal discrimination.

Hawaii's constitution required the state to show a "compelling state interest" in why the two women should not be legally married. The state could not meet its burden. The case did not present a federal question, so it did not go to the U.S. Supreme Court.

In 2004, Massachusetts became the first state to bring a case to the federal docket with Goodridge v. Dept. of Public Health. In Goodridge, the court dismissed state arguments that marriage primarily existed to support procreation. Massachusetts began issuing same-sex marriage licenses based on the holding in Goodridge in 2004.

Prop 8

In 2008, opponents of same-sex marriage in California put Proposition 8 on the ballot. This proposition would have amended the California constitution and legally recognized only marriages between "a man and a woman." Prop 8 passed in 2008, in part due to extensive lobbying and confusing language.

Opponents filed suit claiming the proposition violated the Due Process and Equal Protection clauses of both California's and the U.S. Constitution. Supporters of Proposition 8 wanted to defend the lawsuit, but the State of California declined to do so.

In Hollingsworth v. Perry, the U.S. Supreme Court ruled that private parties lacked standing to defend a state constitutional amendment if the state would not do so. The suit was dismissed for lack of standing. Hollingsworth would be cited in the later case against the Defense of Marriage Act.

Defense of Marriage Act (DOMA)

In 1996, as a response to pressure from opponents of same-sex marriage and religious groups, Congress passed the Defense of Marriage Act (DOMA). This created a federal definition of marriage between a man and a woman and prohibited federal recognition of same-sex marriages for tax benefits, insurance, immigration, and other federal benefits.

A suite of cases involving same-sex couples seeking federal insurance and tax benefits on behalf of their partners challenged DOMA. The one that reached the Supreme Court was United States v. Windsor. In 2010, Edith Windsor of New York attempted to claim the federal tax exemption for surviving spouses on her same-sex partner's estate but was denied under DOMA. The New York and Appellate Court held that Section 3 of DOMA was unconstitutional.

The U.S. Supreme Court upheld the ruling in a 5-4 decision. On the same day, the high court ruled in Hollingsworth, allowing same-sex marriages to resume in California. Following these rulings, the Obama administration began extending other federal rights to same-sex couples and reducing its defense of anti-same-sex lawsuits.

Obergefell v. Hodges and Same-Sex Marriage Law

Two years after the decision in Windsor, six lower-court consolidated cases under the title Obergefell v. Hodges came before the U.S. Supreme Court. This case was the culmination of lawsuits in four states involving 16 couples, seven children, a widower, an adoption agency, and a funeral home director. All lower-court rulings had found for the plaintiffs. The rulings held that the laws in their states had violated equal protection and due process.

The Supreme Court granted certiorari in 2015 and upheld the lower court rulings. In a 5-4 decision, the court ruled that same-sex couples had the same rights and privileges as opposite-sex couples. The ruling overturned the decision in Baker v. Nelson, which had been precedent for over 40 years.

The full repeal of DOMA was implicit in the ruling of Obergefell. The actual repeal would come with the signing of the Respect for Marriage Act. President Joe Biden signed the RFMA in 2022 because of fierce backlash against LGBT rights and same-sex relationships. The RFMA requires all states to recognize same-sex and interracial marriages and protects religious freedom.

Questions About Same-Sex Marriage Law? Talk to an Attorney

As a result of this complex history, same-sex marriage is available throughout the United States. States must recognize the legal same-sex marriages of other states, and the rights and privileges of marriage must be extended to same-sex married couples. Obergefell effectively eliminates all legal distinctions between heterosexual and same-sex marriages at the state and federal levels nationwide.

Marriage laws have changed dramatically. If you have a question about same-sex marriage laws in your state, ask a family law attorney for help. A good lawyer can give you information about the current state of the law and any legal protections you may want to consider. Start today and find an experienced family law attorney in your area.

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