June 18, 2013
Within the next two weeks, the United States Supreme Court will publish two opinions, United States v. Windsor and Hollingsworth v. Perry, and potentially change the look of marriage throughout the country. The Court’s decision may clarify an issue that the country has debated for years. States have differed in how they address same-sex marriage: some have passed outright bans, others grant some civil rights for same-sex couples, and some permit marriage through legislation. Adding to national confusion is the Defense of Marriage Act, which defines marriage as between one man and one woman and declares that states do not need to recognize same-sex marriages solemnized out-of-state. To understand the scope and importance of the pending Supreme Court opinions, it is important to first review the current status of same-sex marriage throughout the country.
A majority of states have blocked same-sex marriage through legislation. Thirty states currently ban same-sex marriage through constitutional amendments. Alaska’s amendment is the oldest, passed by the legislature in 1998 (stating simply, “To be valid or recognized in this State, a marriage may exist only between one man and one woman”). Only two states followed suit from 2000 to 2002: Nebraska and Nevada.
The year 2004, however, saw an influx of restrictive constitutional amendments, with 13 amendments approved that year:
Over the next four years, 13 more states followed the trend:
|Idaho||South Carolina||South Dakota||Tennessee|
Most recently, North Carolina joined the group in 2012.
Many states with restrictive constitutional provisions have also passed statutes limiting marriage to one man and one woman, including
|Missouri||Montana||North Carolina||North Dakota|
Finally, there are six states which ban same-sex marriage by statute, but not by constitutional amendment:
On the other end of the spectrum, ten states allow same-sex couples some spousal rights.
Five states permit domestic partnerships:
|California||District of Columbia||Nevada|
Five states allow civil unions:
A number of states have passed legislation allowing same-sex marriage.
In 2009, Connecticut and Vermont started the movement with simple legislation expanding the definition of marriage. The District of Columbia, Maine, New Hampshire, New York, and Washington soon followed suit. Most recently, Delaware, Maryland, Minnesota, and Rhode Island passed legislation allowing same-sex marriage in 2013.
Two states do not have any legislation addressing same-sex marriage: New Jersey and New Mexico.
A chronological trend is apparent for same-sex marriage legislation in the United States: in recent years, permissive legislation has outnumbered restrictive measures. A review of state statutes and constitutional amendments shows a heavy push for restrictive legislation in the 1990s, with another large wave from 2004–2006. Indeed, only five states have passed restrictive legislation after 2006: Arizona, California, Florida, North Carolina, and Kansas. In contrast, all states with legislation permitting same-sex marriage passed the statutes as recently as 2009 or later. Moreover, 8 of 10 states granting benefits to same-sex couples through domestic partnerships or civil unions have done so after 2006.
Although recent years may show a changing tide, the United States is far from a consensus on this issue. The guidance provided by the Supreme Court in the coming weeks may provide the clarification needed to resolve the issue and create a unified legislative landscape throughout the country.