Same Sex Marriage

By Susan Buckner, J.D. | Legally reviewed by Aisha Success, Esq. | Last reviewed July 01, 2023

Laws about same-sex marriage have a brief history in the United States. The first challenge came in 1971. And in 2015, a Supreme Court decision legalized gay marriage nationwide. The years between saw an entrenched cultural and legislative battle over the legalization of a basic human right.

This section discusses several topics, including:

The history of gay marriage
The Defense of Marriage Act
State laws and court decisions about the legalization of gay marriage

Marriage Equality and Same-Sex Marriage

It is difficult to remember now, but a short time ago, interracial marriage was prohibited in states across the South. Loving v. Virginia, decided in 1967, finally acknowledged that preventing white people and people of color from marrying was unconstitutional under the Equal Protection and Due Process clauses of the 14th Amendment of the Constitution.

No-fault divorce, which allows either party in a marriage to dissolve the union without proof of wrongdoing, is also a new concept. California was the first state to introduce it in 1970. Before that, married couples had to prove that one (and only one) of the spouses had been abusive or adulterous before they could divorce.

Marriage equality is thus a recent arrival to the courts. In this atmosphere, same-sex couples faced cultural bias and legal challenges when trying to get the same rights as opposite-sex couples.

First Challenge to Same-Sex Marriage Bans

In 1970, two gay University of Minnesota students filed suit after the court denied their request for a marriage license. The sole basis for the denial was that the applicants were a gay couple. At the time, there were no laws preventing gay marriage.

This case, Baker v. Nelson, used the same legal theories as the earlier case Griswold v. Connecticut. Griswold based its claims on a right to privacy between two adults in their own home. Using the same theory, the plaintiffs claimed the state had violated their civil rights under the following constitutional amendments:

The lower court and the Minnesota Supreme Court rejected their claim. Both courts refused to hear the case, asked no questions of either side, and issued a summary judgment.

In 1972, the U.S. Supreme Court issued a summary dismissal of the case, setting a precedent for the next 43 years. Because of the way the Court decided Baker, it became binding precedent. No same-sex marriage case could be considered unless it presented a different issue than the Baker case.

State Conflicts Over Same-Sex Marriage

What Baker meant for the states was a matter of definition. Marriage is a state law issue. So, the battle over same-sex marriage rights played out in state courts and legislatures. Many of the laws banning or legalizing gay marriage came through state ballot initiatives. Baker allowed states to “define marriage as they [saw] fit."

Massachusetts was the first state to legalize same-sex marriage in 2003. Although legislators attempted to change "marriage" to "civil unions," Massachusetts began issuing same-sex marriage licenses in May 2004.

The same year, San Francisco Mayor Gavin Newsom ordered the county clerk to begin issuing same-sex marriage licenses. The California Supreme Court issued a temporary stay. Then-Governor Arnold Schwarzenegger vetoed a bill codifying equal access to marriage in California.

In May 2008, the California Supreme Court ruled same-sex marriage bans unconstitutional. Proposition 8, a ballot initiative banning same-sex marriage, passed after extensive lobbying. Proposition 8 went through many court challenges and appeals before the U.S. Supreme Court declared it unconstitutional. Same-sex marriage is now legal in California.

Other states gradually enacted their own laws allowing same-sex marriage. A few followed Massachusetts and California. For instance, New Hampshire and the District of Columbia made same-sex marriage legal as early as 2010. Oregon, Colorado, and Idaho lingered until 2014. Thirteen states, including Michigan, Kentucky, and the Dakotas, still have not legalized it, although Obergefell v. Hodges has made their resistance a moot point for now.

Civil Union vs. Marriage: Why Does it Matter?

One compromise offered in the early days of the same-sex marriage debate was the civil union. Opponents of same-sex marriage suggested that gay and lesbian couples could have a civil union, and marriage could remain the province of traditional couples. This alternative was not accepted for several reasons.

A civil union is a legal relationship like a domestic partnership. Some states offer them for both same-sex and opposite-sex couples who prefer not to have formal marriages. A civil union provides some of the same protections as marriage, such as health care, the right to make legal decisions for the partner, and inheritance rights.

Civil unions are only state partnerships. They are not "portable," that is, they are not recognized between states. They do not allow the partners to share federal benefits and, in some cases, may not allow partners to get federal pensions or retirement benefits.

Also, the recognition of same-sex marriage is important for LGBTQ rights. Having same-sex relationships acknowledged as equal to other types of marriages is essential for gay rights because it validates the couples' place in society. Marriage is an important part of our culture, and gay couples and lesbian couples want their marriages to be equally important.

The Defense of Marriage Act

In 1996, under pressure from a Republican Congress, President Bill Clinton signed the so-called Defense of Marriage Act, or DOMA. This Act limited the definition to “one man and one woman" under federal law. DOMA did not prevent states from creating their own definitions of marriage. It did allow states to refuse same-sex marriage licenses granted by other states. DOMA also prevented same-sex couples from getting their partners' federal government benefits.

There were two main provisions of DOMA:

Section 2 said that: “No State ... shall be required to give effect to any ... relationship between persons of the same sex that is treated as a marriage under the laws of such other State." In other words, other states could give such consideration if they chose, but they were not required to do so.
Section 3 said that: “In determining the meaning of any Act of Congress ... the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." At the federal level, a man was a husband, and a woman was a wife, and marriage was between a man and a woman as husband and wife, period. No provision was made for same-sex partners in any federal legislation going forward.

The backlash against DOMA was immediate. President Clinton did what he could to distance himself from the Act. Many people filed lawsuits against the Act on behalf of existing federal employees with same-sex partners. Some of these included:

Golinski v. Office of Personnel Management. Filed in federal court by a judicial employee seeking health benefits for her same-sex partner. The judge dismissed the suit but invited her to amend her complaint to challenge the unconstitutionality of Section 3. Golinski did so, and her case became part of the suite of cases challenging DOMA.
Gill v. Office of Personnel Management. This case, filed by the GLBTQ Legal Advocates & Defenders (GLAD), challenged DOMA's definition of “marriage" as “between a man and a woman." Judge Joseph Tauro heard the case, along with Golinski and Massachusetts. The Supreme Court denied certiorari in favor of U.S. v. Windsor.
Massachusetts v. United States Department of Health and Human Services. Filed by Massachusetts AG Martha Coakley, this case charged the entire Act as unconstitutional and further with "codifying an animus towards gay and lesbian people."

These cases were the basis of the Obama administration's decision to cease defending DOMA lawsuits. The Supreme Court rejected all three of these cases when it granted certiorari to U.S. v. Windsor. Their petitions were denied, and the cases were dismissed when Windsor found Section 3 unconstitutional.

United States v. Windsor

In 2007, Edith Windsor and her long-time partner Thea Spyer were legally married in Toronto, Canada. They returned to their home in New York, where state law recognized them as a married couple. Spyer died in 2009, leaving a large estate to Windsor. Windsor filed for a federal estate tax exemption as a surviving spouse, but Section 3 of DOMA prohibited her claim.

Windsor sued the federal government in district court. President Obama's Department of Justice declined to defend Section 3, so a Congressional agency, the Bipartisan Legal Advisory Group (BLAG) intervened. The district court held that Section 3 of DOMA was unconstitutional.

BLAG appealed on grounds of standing and that Windsor's marriage was not recognized in New York or by the federal government at the time of the suit. The New York appellate court was the first federal court of appeals to hold that laws addressing sexual orientation must be reviewed under a "heightened scrutiny" standard. This ruling had implications for same-sex marriages and other gay, lesbian, and transgender legal issues, which ensured the case would see a Supreme Court review.

The Supreme Court granted certiorari in December 2012 on the question of whether DOMA violates same-sex partners' Fifth Amendment right to equal protection.

The Supreme Court also asked for briefs on two additional questions:

Whether the Second Circuit had decided the case too soon, depriving the court of a "real dispute"
Whether BLAG had standing to bring suit in place of the Department of Justice

In a 5-4 majority decision, the Supreme Court ruled to overturn Section 3 of DOMA, agreeing with the lower courts that Section 3 did violate equal protection for same-sex couples. Justice Anthony Kennedy, writing for the majority, said that:

“DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency ... The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment."

After Windsor

Following the Supreme Court ruling in Windsor, BLAG ceased its defenses of federal statutes preventing same-sex couples from claiming veterans' spousal benefits (McLaughlin v. Panetta) and other cases. The Obama administration issued a referendum instructing other government agencies to extend privileges and benefits to same-sex and LGBTQ couples in other cases, including:

Social Security death benefits
Medicare and Medicaid coverage
Marriages of same-sex couples are recognized in all states for federal tax purposes
Same-sex spouses can qualify for green cards
Justice Department employees in same-sex marriages are entitled to the same rights and benefits as different-sex marriages

The ruling affected state equal-protection cases in New Jersey (Lewis v. Harris) and federal cases that had been relying upon the Baker decision in Texas, Oklahoma, and Louisiana. The Ninth Circuit suggests that Windsor creates a new level of scrutiny in standard of review for cases dealing with sexual orientation. This theory has not yet been tested.

The Final Ruling: Obergefell v. Hodges

In 2015, a U.S. Supreme Court decision found that same-sex marriage is a fundamental right. In Obergefell v. Hodges, the court held that the Equal Protection Clause of the 14th Amendment protects same-sex marriage. In the majority opinion, Justice Anthony Kennedy stated: "Decisions about marriage are among the most intimate that an individual can make. This is true for all persons, whatever their sexual orientation."

The Supreme Court ruling in Obergefell invalidated Section 2 of DOMA, rendering the Act unenforceable. Gay and lesbian couples had the same marriage rights as different-sex couples under federal law.

In December 2022, Sen. Dianne Feinstein (D-Calif.) and Rep. Jerrold Nadler (D-N.Y.) reintroduced the Respect for Marriage Act, which they first presented in 2009. President Joe Biden signed it, repealing DOMA on December 13, 2022.

State Constitutions

Today, only Nevada has taken the final step of guaranteeing same-sex marriage in its state constitution. California has a referendum pending, which would enshrine the same protections in its constitution. The initiative will reach the voters in the next election.

Other states still cling to outdated state constitutions with bans on same-sex marriage and old-fashioned definitions of married couples. Despite the ruling in Obergefell, there are no constitutional protections for same-sex marriage at the federal level.

Laws that impact LGBT couples and individuals are changing daily. Couples and families should keep up to date on their state's status and urge their lawmakers to vote for legislation that benefits same-sex and different-sex couples equally.

Click on a link below to learn more about same-sex marriage and changes in federal and state laws.

Learn About Same-Sex Marriage

Same-Sex Marriage, Civil Unions, and Domestic Partnerships

Read about the different domestic arrangements available to same-sex couples. Each has its own legal consequences and could have a deep impact on your life for years to come.

Same-Sex Marriage Pros and Cons

This article explains how entering marriage can help or hurt your chances of adopting and raising children, your tax status, or your ability to own and keep property in your name.

A Historical Introduction

What are the arguments in the same-sex marriage debate, and how did we get to where we are today? This article will give you the background information you need to follow today's news.

The Defense of Marriage Act

DOMA passed in 1996 to deny all benefits and recognition to same-sex couples. But in 2013, the Supreme Court ruled it unconstitutional under the equal protection clause in U.S. v. Windsor.