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In the United States of America, same-sex marriage is not legally permitted. However, a campaign to eliminate or evade the prohibition has been taking shape since the 1990s. The state of Vermont provides same-sex civil unions which are designed to be similar to marriage. Massachusetts' Supreme Court issued a ruling demanding that the legislature pass a law authorizing same-sex marriages, and the mayor of San Francisco has ordered the issue of marriage licenses in direct violation of the laws of California.
Various groups have battled over the legal issue since the late 20th century. A nationwide poll by Pew Research in July 2003 found opposition to same-sex marriage at 53 percent of respondents, while 38 percent said that they backed them, [1] while an October 2003 poll by the same group found opposition had risen to 59 percent and support fallen to 32 percent. Opposition continues to be centered among the conservative religious community.
On the other hand, a Massachusetts poll conducted in October 2003 found that 64 percent of voters in the state would agree, and only 34 percent would disagree with a court ruling by the Supreme Judicial Court of Massachusetts if the court ruled that couples of the same sex have a constitutional right to marry [1]. It also found that 59 percent of Massachusetts voters said same-sex couples should have the right to enter into civil marriage, while 35 percent disagreed.
On February 10, 2004, a majority of Americans in one poll (2 to 1 margin) responded that they did not want laws in their states that would legalize same-sex marriages. However in the same poll 49% of respondents stated that they were opposed to the idea of a constitutional amendment outlawing same-sex marriage (42% were in favor). The poll was taken after the Massachusetts Supreme Judicial Court ruling. [1]
There are also many groups actively fighting for and against legal recognition of same-sex marriage, proponents including traditional LGBT groups such as HRC, Lambda Legal and NGLTF, as well as groups that have been created around this single issue, such as Marriage Equality and Freedom to Marry.
Also, in the United States, proponents of equal marriage rights for same-sex couples observe that there are over 1,049 federal rights and benefits, as well as numerous state and private benefits (family memberships, discounts, etc) denied same-sex couples by excluding them from participating in marriage. A legal denial of federal rights or benefits, they say, directly contradicts the 14th Amendment of the US Constitution which provides for equal protection and substantive due process under the law. Meaning that rights conferred to one group cannot be denied to another.
In the 2003 case before the Supreme Court titled Lawrence v. Texas, the court held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. Many proponents of same-sex marriage believe that this ruling paves the way for a subsequent decision invalidating state laws prohibiting same-sex marriage. This raises the possibility of a challenge to the Defense of Marriage Act (DOMA) under the equal protection clause of the Fourteenth Amendment.
Also in 2003, lesbian comedian Rosie O'Donnell's court case with ex-colleagues raised another new issue when O'Donnell's life partner, Kelli, was forced to testify against O'Donnell. Under United States law, spouses cannot be forced to testify against each other; but because same-sex couples are not allowed to marry, they are denied this courtroom right.
Vermont is the only U.S. state to offer same-sex couples all of the state-level rights and benefits of heterosexual couples. Vermont does not use the word marriage, but calls such unions civil unions. Civil unions do not, however, provide the federal-level rights, benefits and protections that come with a civil marriage license. The history of the civil union law in Vermont is given in the civil union article.
California's domestic partnership law provides similar benefits, but again stops short of full same-sex marriage.
There are also bills in both chambers of the New York State legislature that would extend marriage rights to same-sex couples. These bills were introduced in early 2003 and are currently still in committee.
In 1996, the federal Defense of Marriage Act (DOMA) was passed. This bill defines marriage as a "legal union between one man and one woman", refuses federal recognition to same-sex marriages, and allows U.S. states to not recognize same-sex marriages performed in other U.S. states (although no state currently offers same-sex marriage as an option) or other countries. Since then, various states have passed a law or changed their constitution to assert that they do not recognize same-sex unions, nor will they recognize such unions legally recognized in other states. These laws are sometimes referred to as "Mini-DOMAs".
Some opponents of same-sex marriage, fearing that such laws might be invalidated by the courts because of the "full faith and credit" clause of the United States Constitution, have proposed a Federal Marriage Amendment to the constitution that would prevent the federal government or any state from providing a marriage or the legal incidents thereof to a same-sex couple, whether through the legislature or the courts.
Polls in the last few years have indicated roughly a 50-50 split on the issue, with some polls leaning toward a slight majority favoring an amendment. Since polls usually have a plus or minus 4% error margin, it's hard to call this a mandate. President George W. Bush announced his support for such an amendment on February 24, 2004.
A December 2003 national CBS/New York Times poll indicated 55 percent national support for this amendment [1]. However, the validity of this study and the accuracy of the reporting of its results by The New York Times has been questioned [1].
In 1975, Clela Rorex, county clerk of Boulder County, Colorado, allowed six same-sex couples to wed, after receiving an advisory opinion from the district attorney's office indicating that the state's laws did not explicitly prohibit it. [1]
The 2003 interim legalization of same-sex marriages in three Canadian provinces, and likely pending legalization of same sex-marriages across all of Canada (see: same-sex marriage in Canada) has raised questions about US law, due to Canada's proximity to the US and the fact that Canada has no citizenship or residency requirement to receive a marriage certificate (unlike the Netherlands and Belgium). Canada and the US have a history of respecting marriages contracted in either country.
A number of American couples immediately headed or planned to head to Ontario in order to get married. A coalition of American national gay rights groups has issued a statement asking couples to contact them before attempting legal challenges, so that they might be coordinated as part of the same-sex marriage movement in the United States.
On November 18 2003, Massachusetts' Supreme Judicial Court ruled 4 to 3 in Goodridge et al. v. Department of Public Health that the state's ban on same-sex marriage is unconstitutional and gave the state Legislature 180 days to change the law. The court found that Massachusetts may not "deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry" because of a clause in the state's constitution that forbids "the creation of second-class citizens." On February 4, 2004, the court reiterated that only equal treatment in both rights and terminology is required. This means that either marriage must be allowed for gay couples (as opposed to civil unions), which would satisfy the state constitution, or all couples must have civil unions, with no state recognition of marriages. The ruling will go into effect on May 18 2004, six months after it was issued. A constitutional amendment overturning the Supreme Court's decision, if passed, would have to be approved by two successive sessions of the legislature and face a popular vote, and thus could not not go into effect before 2006.
On February 12, 2004, recently-elected Mayor Gavin Newsom and other city officials began issuing marriage licenses in San Francisco, California. Lesbian activists Phyllis Lyon and Del Martin were the first same sex couple to be married. The event was intended to undercut a legal challenge planned by a conservative group, Campaign for California Families. About 3,200 same-sex couples had been issued marriage licenses, as of February 24.
Liberal city officials claim that the marriages are legally binding, although they contravene California state law. The mayor took the action because he believes the laws broke constitutional provisions for equal protection. However, conservative legislators and groups quickly reacted, and an injunction to prevent more marriages was expected to be issued soon. The legal validity of the marriages will also be tested in the courts. [1] [1] [1] Additionally, the California state agency that records marriages states that altered forms, including any marriage licenses issued to same-sex couples, will not be registered. [1]
On February 20, 2004, Victoria Dunlap, county clerk of Sandoval County, New Mexico, announced that she would begin issuing same-sex marriage licenses because New Mexico marriage law does not mention gender.[1] The first same-sex marriages in Sandoval County were performed later the same day. By the end of the day, however, New Mexico state attorney general Patricia Madrid issued an opinion stating that the licenses were "invalid under state law," and the Sandoval County clerk's office stopped issuing them. In the interim, 26 such licenses had been issued.
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