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Same-Sex Marriage  
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Same-sex couples have been fighting for the freedom to marry since the dawn of the modern lesbian and gay civil rights movement. This struggle is important to the movement because of the myriad of rights and responsibilities married couples enjoy and because of the special status marriage has in America.

A 1996 General Accounting Office study found that federal statutes and regulations confer 1,096 rights and benefits to married couples. It has been estimated that state laws confer approximately 300 additional rights and responsibilities on spouses. Many of these rights and responsibilities (such as the right to sue for wrongful death, the right to family medical leave, and the spousal privilege against testifying in court) cannot be obtained through private contract; rather, they are available only through the state's grant of a marriage license.

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But marriage is more than just a bundle of rights. It is a unique institution seen by many as the building block of society. The United States Supreme Court has said that marriage is "fundamental to our very existence and survival" and that the "freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness" (Loving v. Virginia [1967]).

Committed same-sex couples seek the right to marry for the happiness, the sense of worth, and the social respect that comes with marriage. With marriage the community will mature, in the words of Professor William Eskridge, "from sexual liberty to civilized commitment."

Early Cases

The first same-sex marriage case was filed in Minnesota in May of 1970, a mere nine months after the Stonewall riots, by Jack Baker and Michael McConnell. Baker and McConnell relied on the United States Supreme Court 1967 decision in Loving v. Virginia, which struck down Virginia's ban on interracial marriage, but the Minnesota Supreme Court distinguished Loving, concluding "in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely on race and one based upon the fundamental difference in sex" (Baker v. Nelson [1971]).

The court refused to consider Baker and McConnell's equal protection claim, holding instead that "[t]he institution of marriage as a union of man and woman . . . is as old as the book of Genesis." Baker and McConnell appealed the decision to the United States Supreme Court, which summarily dismissed the appeal for "lack of a substantial federal question."

Two other post-Stonewall same-sex marriage cases, filed in Kentucky by a lesbian couple (Jones v. Hallahan [1973]) and in Washington State by a gay male couple (Singer v. Hara [1974]), met the same fate as Baker.

In all of these early same-sex marriage cases the courts were content to rest their decisions on the circular argument that the couples' equal protection rights were not violated because the definition of marriage excluded them from coverage. As the Kentucky court put it, "the relationship proposed by the applicants does not authorize the issuance of a marriage license because what they propose is not a marriage." The Washington court followed a similar reasoning: "Appellants were not denied a marriage license because of their sex; rather, they were denied a marriage license because of the nature of marriage itself."

The Hawaii and Alaska Cases

These early, resounding defeats, coming in quick succession, quieted the drive for marriage equality for almost twenty years. While the lesbian and gay civil rights movement focused its energies and achieved many legal victories in the twenty-five years after Stonewall on issues such as the repeal of laws, protection from workplace discrimination, and hate crimes, little was said about same-sex marriage. That changed in a heartbeat with the Hawaii Supreme Court's landmark decision in Baehr v. Lewin in 1993, a case brought by six same-sex couples seeking the right to marry.

The court reviewed the Minnesota, Kentucky, and Washington same-sex marriage cases, cases that had held sway for a generation, and forcefully rejected them, calling their reasoning an "exercise in tortured and conclusory sophistry." The court held that denying same-sex couples marriage licenses would violate Hawaii's Equal Rights Amendment unless the state could show a compelling interest justifying the exclusion. The court remanded the case to the trial court for a hearing to allow the state to present evidence satisfying the compelling interest standard.

The trial court took testimony from eight witnesses expert in the fields of sociology, psychiatry, and gender development. In a 1996 decision the trial court concluded that "same-sex couples can, and do, have successful, loving and committed relationships," and "[g]ay and lesbian parents and same-sex couples can be as fit and loving parents, as non-gay men and women and different-sex couples." The court held the state had not met its burden under the compelling interest standard, but stayed enforcement of its decision pending appeal to the Hawaii Supreme Court.

The Hawaii Supreme Court sat on the appeal for over two years, which gave the legislature time to pass a proposed constitutional amendment reserving marriage to opposite-sex couples. The people of Hawaii overwhelmingly ratified the amendment in November 1998. In December 1999, the Hawaii Supreme Court unceremoniously dismissed the Baehr case due to the new amendment. In the end, no marriage licenses were ever issued in Hawaii, and the struggle moved on to other states.

A court victory in Alaska was also squelched by voters at the polls. In February 1998, a trial court in Anchorage ruled in favor of two gay men who brought suit seeking a marriage license. The court based its decision on equal protection grounds, as the Hawaii court had, but in a judicial first, the Alaska court also held that denying plaintiffs a marriage license violated their right to privacy. The court held that the right to privacy, enshrined in Alaska's Constitution, included the right "to choose one's life partner."

As in Hawaii, the court ordered the state to show a compelling reason for intruding on this right. The state never had to meet this challenge, however, since the Alaska legislature rushed through a proposed amendment to the constitution limiting marriage to opposite-sex couples. The amendment was ratified by the people of Alaska on the same day as the Hawaii amendment.

Vermont Civil Union

The first lasting victory in the struggle for marriage rights and responsibilities came in December 1999, with the Vermont Supreme Court's decision in Baker v. State.

Two lesbian couples and one gay couple sued for marriage licenses, basing their claim on the Common Benefits Clause of the Vermont Constitution, a clause which states in part that "government is . . . instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons who are only a part of that community . . . ." The court saw this clause as expressing the founders' belief in "inclusion," and said that "at its core the Common Benefits Clause expressed a vision of government that afforded every Vermonter its benefit and protection and provided no Vermonter particular advantage."

The court unanimously declared the marriage laws unconstitutional since they advantaged opposite-sex couples and denied same-sex couples a host of benefits and protections. In ringing terms the court concluded, "The extension of the Common Benefits Clause to acknowledge plaintiffs as Vermonters who seek nothing more, nor less, than legal protection and security for their avowed commitment to an intimate and lasting human relationship is simply, when all is said and done, a recognition of our common humanity."

Alas, the court was nowhere near as forceful in its choice of remedy. One justice would have ordered the state to issue the plaintiffs marriage licenses immediately. However, the majority stopped short of this since it felt that a "sudden change in the marriage laws . . . might have disruptive and unforeseen consequences," although it did not elaborate on what these consequences might be. The court instead directed the legislature to craft a constitutionally permissible solution.

In a rancorous and extremely high profile debate, the Vermont legislature eventually passed the civil union law, which took effect on July 1, 2000. The civil union law entitled same-sex couples to "all the same benefits, protections and responsibilities" offered to opposite-sex couples who marry (Vt. Stat. Ann. tit. 15, § 1204(a)).

The registration process for civil union was the same as for marriage, and those seeking to dissolve a civil union must use the family court and follow the same law governing the dissolution of marriage, "including annulment, separation and divorce, child custody and support, and property division and maintenance" (Vt. Stat. Ann. tit. 15, § 1204(b)). Following passage of the civil union law the plaintiffs in Baker moved to withdraw their suit, and in December 2000, the Vermont Supreme Court dismissed the case.

[In April 2009, the Vermont legislature passed a bill providing for marriage equality, in effect repealing the civil union law. After September 1, 2009, when the new marriage law went into effect, civil unions were no longer offered in Vermont, though civil unions already performed will continue to be recognized.]


Same-sex marriage advocates finally achieved their breakthrough with the historic decision of the Massachusetts Supreme Judicial Court in Goodridge v. Dep't of Public Health (2003). In that case seven same-sex couples brought suit seeking the right to marry under the Massachusetts Constitution. The court found for the plaintiffs. It concluded, "a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community's most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law."

The court's opinion is filled with affirming language about the worth of same-sex relationships and the importance of marriage. The court rejected the argument that allowing same-sex marriage would somehow "trivialize or destroy the institution of marriage." To that it said, "the plaintiffs seek only to be married, not to undermine the institution of civil marriage. They do not want marriage abolished. . . . Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race."

Unlike Baker, which was unanimous, the plaintiffs prevailed in Goodridge by a slim 4-3 majority. Justice Sosman in dissent argued "[the Legislature can rationally view the state of the scientific study as unsettled on the critical question it now faces: are families headed by same-sex parents equally successful in rearing children from infancy to adulthood as families headed by parents of opposite sexes?" Justice Cordy added, "the Legislature could conclude that redefining the institution of marriage to permit same-sex couples to marry would impair the State's interest in promoting and supporting heterosexual marriage as the social institution that it has determined best normalizes, stabilizes, and links the acts of procreation and child rearing."

The court gave the legislature 180 days "to take such action as it may deem appropriate" but offered no further guidance. The decision was imbued with a tone suggesting that only marriage will constitutionally suffice, but many legislators saw in the vagueness of the court's ruling the possibility that civil union might pass constitutional muster. However, on February 3, 2004, in response to the legislature's request for an advisory opinion, the court ruled that only marriage, and not civil union, would satisfy Goodridge. The four-judge majority remarked that "The history of our nation has demonstrated that separate is seldom, if ever, equal." (For briefs making the argument in favor of marriage, see

The legislature convened on February 11, 2004 to consider several constitutional amendments to override Goodridge. The votes were close, but none of the amendments passed. In two days of lengthy and dramatic testimony, dozens and dozens of legislators spoke eloquently and passionately in favor of same-sex marriage.

On March 11, 2004, the legislature reconvened. After spirited debate and in a spirit of compromise, it approved a proposed constitutional amendment that would ban gay marriage but institute civil unions.

Notwithstanding the legislature's approval of the proposed constitutional amendment, however, it had no authority to prevent the court-ordered issuance of marriage licenses to same-sex couples. On May 17, 2004, for the first time in American history, gay and lesbian couples obtained fully legal marriage licenses. In towns across Massachusetts, in city halls and in temples and churches, overjoyed gay men and lesbians, often accompanied by their children and family and friends, entered into legal matrimony.

Republican Governor Mitt Romney invoked a 1913 law to prohibit out-of-state same-sex couples from marrying in Massachusetts. That law, originally intended to bar out-of-state interracial couples from marrying in Massachusetts, was challenged, but in 2006 it was upheld by the Supreme Judicial Court, at least when applied to couples from states that outlaw same-sex marriage. Under that ruling, couples from Rhode Island were permitted to be married in Massachusetts.

According to the Massachusetts Constitution, amendments to the constitution must be ratified by two consecutive legislatures before they can be put to a vote in the ensuing general election. The proposed amendment banning same-sex marriage and instituting civil union was, thus, taken up again by the legislature in September 2005. This time, the amendment failed by a lopsided vote of 157 against and only 39 in favor.

Many moderate lawmakers who voted in favor of the proposed amendment the first time said that the reality of same-sex marriage in the state had changed their minds. One lawmaker, representing this sentiment, said that between the votes, "we saw . . . how important marriage really is. We saw couples who had been together longer than some of us had been alive finally be able to receive the same benefits that other couples had always received and taken for granted."

Opponents of same-sex marriage in Massachusetts quickly initiated a new drive to amend the constitution under a different amendment procedure. Backers of a proposed amendment that would ban same-sex marriage (without adding a civil union substitute) gathered more than the 66,000 signatures needed to reopen the question. Under this procedure, the proposed amendment needed the support of only 50 lawmakers in two successive sessions in order for it to appear on the ballot in 2008. Some conservative lawmakers who had voted for the compromise civil union amendment the first time voted against it in the second session because they favored the new, more restictive amendment. Governor Mitt Romney, who supported the initial compromise amendment, switched his support to the new amendment.

After various legislative maneuvers, the amendment received 62 votes in January 2007, thus making it eligible for a state-wide referendum if it received more than 50 votes in the next legislative session.

However, on June 14, 2007, when the constitutional convention reconvened, the amendment was swiftly voted down on a vote of 45 to 151, handing a great victory to the gay and lesbian community. The success was due to strong support from the new Democratic leadership, including Governor Deval Patrick. The rejection of the amendment meant that a referendum on same-sex marriage in Massachusetts could not be held before 2012, but by 2012 same-sex marriage in Massachusetts was supported by a large majority of citizens and was regarded as settled law.

In late July 2008, the Massachusetts legislature repealed the 1913 law that Governor Romney had invoked to prohibit out-of-state couples from marrying in Massachusetts. The overwhelming vote in favor of the repeal reflected both a new easiness with same-sex marriage in the state and a desire to reap economic benefits from having out-of-state couples wed in the state, particularly in light of New York's 2008 decision to recognize same-sex marriages performed in other jurisdictions.

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Couples celebrate their relationships and demonstrate in favor of same-sex marriage at a mass wedding ceremony held at San Diego Pride in 2005. Photograph by Angela Brinskele.
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