Same-Sex Marriage: The Question Gripping the Nation



Before 2011, only five states allowed gay marriage: Massachusetts, Iowa, Vermont, New Hampshire, and Connecticut — although same-sex marriages were briefly performed for several months in 2008. When the California Supreme Court knocked down Proposition 22 in May 2008, the way was paved for same-sex marriage to become legal in the state the following month. But by November, same-sex marriage was once again illegal thanks to the passage of Proposition 8 — legislation that proclaimed: “only marriage between a man and a woman is valid or recognized in California.” Same-sex marriage would remain illegal in the state until 2013, when the United States Supreme Court ruled on an appeal of Hollingsworth v. Perry — a lawsuit filed by two same-sex couples following the passage of the 2008 ban. Proposition 8 was overturned as a result of the decision.

Now, same-sex marriages are allowed in 17 states plus the District of Columbia — the result of a string of new laws passed by state legislatures, approved by voters, or demand by a state court. As one would expect, public opinion has changed significantly over the past few years; a Washington Post/ABC News poll conducted in March of last year showed 58 percent of Americans believe same-sex marriage should be legal, an increase from 37 percent in September 2003. When the Supreme Court struck down a key part of the Defense of Marriage Act in the summer of 2013, a new legal basis was established for addressing same-sex marriages.

In ruling a key part of the 1996 unconstitutional, the court made it illegal for gay couples married in states where it is legal to not receive the same federal health, tax, Social Security, and other benefits that heterosexual couples receive. That ruling gave new momentum to the political shift in gay marriage legality that was taking place at the state level — a shift that is still underway.

A total of 33 states — which mainly fall in the middle and south of the country — still limit marriage to opposite-sex couples. But recent rulings by federal judges in six states have invalidated laws that banned same-sex marriage or laws that prohibited the recognition of gay marriages performed in other states.

Texas — a bastion of modern social conservatism, where a 2005 constitutional amendment banning same-sex unions passed with 76 percent of the vote — saw the most recent ruling, after the ban was challenged in court by two same-sex couples. On Wednesday, U.S. District Judge Orlando L. Garcia, who was appointed by former President Bill Clinton, declared the state’s ban on same-sex marriage to be “state-imposed” inequality. “After careful consideration, and applying the law as it must, this Court holds that Texas’ prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process,” wrote Garcia in a February 26 ruling. “Texas’ current marriage laws deny homosexual couples the right to marry, and in doing so, demean their dignity for no legitimate reason. Accordingly, the Court finds these laws are unconstitutional and hereby grants a preliminary injunction enjoining Defendants from enforcing Texas’ ban on same-sex marriage.”

Of course, couples will not be able to marry immediately. Garcia’s ruling has been stayed, pending an appeal, as have rulings in several states. The state’s Attorney General Greg Abbott, a Republican who is running for governor of Texas, stated Wednesday that he would appeal the court’s decision in the 5th Circuit appellate court in New Orleans. “The U.S. Supreme Court has ruled over and over again that states have the authority to define and regulate marriage,” he said. “The Texas Constitution defines marriage as between one man and one woman.”

But the reasons behind Garcia’s decision echoed rulings made in other federal courts and what can be described as the growing national sentiment.

In Kentucky, U.S. District Judge John G. Heyburn II wrote in a February 12 ruling that, “In the end, the Court concludes that Kentucky’s denial of recognition for valid same-sex marriages violates the United States Constitution’s guarantee of equal protection under the law, even under the most deferential standard of review. Accordingly, Kentucky’s statutes and constitutional amendment that mandate this denial are unconstitutional.” However, this ruling was limited as the judge only decided the state must recognize same-sex marriages performed in other states.

U.S. District Judge Arenda Wright Allen said in a February 13 ruling that the “court is compelled to conclude that Virginia’s Marriage Laws unconstitutionally deny Virginia’s gay and lesbian citizens the fundamental freedom to choose to marry. Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country’s cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family.” Virginia, a state with a conservative reputation, has become the first state of the old Confederacy to allow same-sex marriage, although the judge stayed her decision pending an appeal to the U.S. Court of Appeals for the 4th circuit in Richmond.

Regarding marriage equality in Oklahoma, U.S. District Judge Terence Kern wrote in a January 14 decision that, “Equal protection is at the very heart of our legal system and central to our consent to be governed. It is not a scarce commodity to be meted out begrudgingly or in short portions. Therefore, the majority view in Oklahoma must give way to individual constitutional rights.”

Utah — a conservative state that is strongly Mormon — was poised to become the 18th state to legalize gay marriage when District Court Judge Robert J. Shelby wrote on December 20: “The court hereby declares that Amendment 3 is unconstitutional because it denies the Plaintiffs their rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution.” While about 1,000 couples married following the ruling, the state objected and the U.S. Supreme Court granted a stay of Shelby’s decision, pending an appeal.

By comparison, the ruling made in Ohio is quite narrow. “The Court’s ruling today is a limited one, and states simply that under the Constitution of the United States, Ohio must recognize valid out-of-state marriages between same-sex couples on Ohio death certificates, just as Ohio recognizes all other out-of-state marriages,” U.S. District Judge Timothy S. Black ruled on December 23. “Ohio law, as applied to these Plaintiffs, violates the United States Constitution’s guarantee of equal protection: that ‘No State shall make or enforce any law which shall … deny to any person within its jurisdiction equal protection of the laws.’”

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