History of State Same-Sex Marriage Laws: A Look Back

From its early beginnings, both proponents and opponents of same-sex marriage have asserted controversial arguments concerning the definition, application, and legality of marriage and domestic partnerships as it applies to transgender and gay couples.

Beginning in 2003, when lawmakers in Massachusetts became the first state to legalize same-sex marriage, legislatures in many states faced the same challenge. Twelve years later, the high court ruling in Obergefell v. Hodges required all states to recognize the equal protection of marriage laws, regardless of sexual orientation.

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 article looks back at state same-sex marriage laws from different state legislatures prior to the 2015 Supreme Court ruling that legalized it nationwide. It also discusses several other topics, including:

• The legal history of same-sex marriage
• Federal laws and legislature, including the Defense of Marriage Act and the Respect For Marriage Act
• State laws and court decisions about the legalization of gay marriage
• Key legal differences between marriage and civil unions

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.

Marriage Equality in the Courts

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.

Opposition to Same-Sex Marriage Laws

The primary opposition to same-sex marriage laws has come from conservative religious groups. These groups cite traditional Judeo-Christian, Islamic, and other religious texts.

Their arguments regarding procreation, sexual acts, and traditional family units and values were refuted in the Obergefell case. The Supreme Court ruling did not support these notions. 

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.

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.

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 United States v. Windsor found Section 3 unconstitutional.

United States v. Windsor reached the Supreme Court. 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.

The next section details United States v. Windsor and its impact on further legislation on same-sex marriage.

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 Barack 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.

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. 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.

The RFMA requires all states to recognize same-sex and interracial marriages and protects religious freedom.

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 same-sex couples want their marriages to be equally important.

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:

• First Amendment
• Eighth Amendment
• Ninth Amendment
• Fourteenth Amendment

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 same-sex 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.

State Constitutions and Same-Sex Marriage

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 LGBTQ 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.

History of Same-Sex Marriage Laws by State

See below for the history of same-sex marriage laws for 35 states, prior to the 2015 Supreme Court decision legalizing same-sex marriage.

Alaska

In October 2014, the U.S. District Court for the District of Alaska legalized same-sex marriage with its decision in the case of Hamby v. Parnell.

Arizona

The U.S. District Court for the District of Arizona legalized same-sex marriage in October 2014 through decisions in two cases: Connolly v. Jeanes and Majors v. Horne. Before these cases, the state had prohibited same-sex marriage via statute (since 1996) and an amendment to the Arizona Constitution (2008).

California

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 (DOMA).

In 2013, the U.S. Supreme Court affirmed the decision in Hollingsworth et al. v. Perry and overturned Proposition 8 (banning same-sex marriage) by ruling that the appellants lacked standing to appeal the case. Soon after the Court's ruling, California courts began issuing marriage licenses to same-sex couples.

Colorado

On July 9, 2014, a Colorado district court ruled on the consolidated cases of Brinkman v. Long and McDaniel-Miccio v. Hickenlooper. It held that the state's ban on same-sex marriage violated equal protection and due process under the Fourteenth Amendment to the U.S. Constitution.

Connecticut

Connecticut legalized the marriage of same-sex couples on November 12, 2008. Connecticut became the third state (after California and Massachusetts) to authorize same-sex couples to marry. The Connecticut Supreme Court held in Kerrigan v. Commissioner of Public Health that the Connecticut State Constitution doesn't permit the state to exclude same-sex couples from civil marriage.

Delaware

When Governor Jack Markell signed HB 75 into law on May 7, 2013, Delaware became the latest colonial state to allow same-sex marriage. Like Rhode Island, Delaware also made civil unions a thing of the past.

Florida

In Brenner v. Scott, a Florida district court ruled that the state's law and constitutional ban on same-sex marriage was unconstitutional. The ruling was issued on August 21, 2014, but it became effective on January 6, 2015.

Hawaii

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 2013, Governor Neil Abercrombie signed Senate Bill 1 and granted same-sex couples the legal right to wed.

Idaho

Latta v. Otter, decided by an Idaho district court and affirmed by the Ninth Circuit, prevented the state from enforcing its ban on same-sex marriage, thus, legalizing it in October 2014.

Illinois

Illinois Governor Pat Quinn signed Senate Bill 10 in 2013, legalizing same-sex marriage in the state. The law took effect on June 1, 2014.

Indiana

In Baskin v. Bogan, a federal district court found for the plaintiffs, who were challenging Indiana's denial of marriage rights to same-sex couples. The U.S. Court of Appeals for the Seventh Circuit upheld the ruling in September 2014. Same-sex marriage was officially legalized in October 2014 when the U.S. Supreme Court denied a writ of certiorari by the defendants.

Iowa

After a flurry of court cases concerning same-sex marriage in the nation, Iowa allowed same-sex unions when the court in Varnum v. Brien ruled that the ban on same-sex marriage under the constitution was a form of unconstitutional sexual orientation discrimination. The law took effect on April 3, 2009.

Maine

The Maine legislature passed a bill legalizing same-sex marriage in 2009, but it was repealed by popular vote later that year. But gay marriage was again made legal in 2012, this time in the general election. It passed by 53 percent, which is the same percentage of voters who rejected it in 2009.

Maryland

A bill legalizing same-sex marriage was passed in 2012 and signed by the governor, with an enactment date of Jan. 1, 2013. But the law was put to a referendum in 2012, known as Question 6 on the general election ballot. It passed with the support of more than 52 percent of Maryland voters.

Massachusetts

Massachusetts became the first state to issue marriage licenses to same-sex couples beginning in 2004. The Supreme Court ruled in Goodrich v. Department of Public Health that the state could not deny civil marriage to two members of the same sex who wished to marry, and that the same laws and procedures that govern traditional marriage also apply to same-sex marriage.

Minnesota

The Minnesota same-sex marriage bill reframes all marriages as "civil marriages," removing gender from the state's definition of eligible partners to a marriage, and allowed marriages on August 1, 2013. The Minnesota House voted 75-59 in favor of same-sex marriage on May 9, 2013. The state Senate voted 37-30 in favor of same-sex marriage on May 13, 2013, and Governor Mark Dayton signed the bill on May 14, 2013.

Montana

In the case of Rolando v. Fox, a federal court ruled in November 2014 that Montana's ban on same-sex marriage was unconstitutional. Although the state appealed the case to the Ninth Circuit Court of Appeals, the U.S. Supreme Court's decision in Obergefell mooted the appeal.

Nevada

Plaintiffs in Sevcik v. Sandoval filed a complaint on behalf of several same-sex couples who had been denied marriage licenses in Nevada. The U.S. District Court for the District of Nevada ruled against the plaintiffs, so they appealed to the Ninth Circuit Court of Appeals in December 2012. On October 7, 2014, the Ninth Circuit ruled in favor of the plaintiffs, effectively legalizing same-sex marriage in Nevada.

New Hampshire

New Hampshire legalized same-sex marriage after Governor John Lynch became only the second Governor to sign a bill (HB 73) that allowed same-sex unions. The new law extending marriage rights to gay and lesbian couples took effect on January 1, 2010.

New Jersey

Same-sex couples in New Jersey became eligible for marriage licenses in 2013, following the New Jersey Supreme Court's refusal to stay a lower court's ruling that denying gay marriage violated New Jersey's constitution. The ruling was in response to the U.S. Supreme Court decision overturning the Defense of Marriage Act (DOMA).

New Mexico

New Mexico's Supreme Court ruled on Dec. 19, 2013, that the statutes prohibiting gays and lesbians from marrying violated both the state and federal constitutions. Since New Mexico's constitution does not expressly define marriage as between a man and a woman, the Court's opinion immediately legalized same-sex marriage in the state.

New York

On June 24, 2011, New York officially enacted the Marriage Equality Act, becoming the sixth state in the United States to legalize same-sex marriages. The legislation passed after several weeks of intense negotiations and fundraising and lobbying efforts on both sides of the issue.

North Carolina

The state has recognized same-sex marriage since October 2014 when a federal court decided in General Synod of the United Church of Christ v. Cooper that North Carolina's denial of marriage rights to same-sex couples was unconstitutional.

Oklahoma

Same-sex couples have been legally permitted to marry in the state since the Tenth Circuit Court of Appeals ordered Oklahoma to recognize same-sex marriage on October 6, 2014 (after the resolution of Bishop v. United States, formerly Bishop v. Oklahoma).

Oregon

Same-sex marriage became legal in Oregon on May 19, 2014, with the federal court decision in Geiger v. Kitzhaber.

Pennsylvania

The decision in the federal case Whitewood v. Wolf - decided on May 20, 2014 - legalized same-sex marriage in Pennsylvania.

Rhode Island

Rhode Island became the sixth and final New England state to approve marriage equality -- and the 10th nationwide (at the time). The Rhode Island legislature passed a bill legalizing same-sex marriage on May 2, 2013; it went into effect on August 1, 2013.

South Carolina

Same-sex marriage has been legal in South Carolina since the federal court decision in Condon v. Haley in November 2014.

Utah

In Kitchen v. Herbert, a federal court found that Utah's same-sex marriage ban was unconstitutional, and the Tenth Circuit Court of Appeals affirmed the decision. However, the decision was stayed, pending petition to the U.S. Supreme Court. When the U.S. Supreme Court denied the petition on October 6, 2014, the Tenth Circuit lifted its stay.

Vermont

In 1999, The Vermont Supreme Court ruled in Baker v. Vermont that same-sex couples are "entitled under Chapter I, Article 7, of the Vermont Constitution to the same benefits and protections afforded by Vermont law to married opposite-sex couples."

However, like other states, the Vermont legislature punted and created "civil unions" equivalent to marriage until 2009, when Vermont became the 5th state to allow same-sex marriage.

Virginia

A district court decided in favor of the plaintiffs (Bostic v. Schaefer) who had challenged Virgina's refusal to sanction same-sex marriages. The Fourth Circuit Court of Appeals upheld the ruling. Same-sex marriage officially became legal on October 6, 2014, when the U.S. Supreme Court denied a writ of certiorari, effectively allowing the circuit court decision to stand.

Washington

On February 8, 2012, the Washington State Senate passed a bill that legalized same-sex marriage. The Senate passed the bill 28-21, with four Republican Senators crossing party lines in the vote. The bill was signed into law by Governor Christine Gregoire but challenged by a petition.

The law was put to a referendum on the 2012 general election ballot as Referendum 74, where it passed with 51.8 percent of the vote.

West Virginia

In McGee v. Cole, the U.S. District Court for the Southern District of West Virginia overturned the state's statutory ban on same-sex marriage on November 7, 2014.

Washington, D.C.

The District of Columbia overwhelmingly passed legislation (by an 11-2 vote) in early December 2009 when it recognized same-sex marriages as a legal union. The law became official in March 2010.

Wyoming

On October 17, 2014, a federal court ruled in Guzzo v. Mead that the state's ban on same-sex marriage was unconstitutional. Same-sex marriage was officially legalized on October 21, 2014, when the state officially declined to appeal the decision.

Get Legal Help With Your Questions About State Same-Sex Marriage Laws

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

They can also answer questions about prenups, how to apply for a marriage certificate, or the legal implications of having children. Contact a family law lawyer in your area to learn your options and how to best protect your rights.