Same Sex Marriage

Historically, marriage was typically depicted as a union between a man and a woman. As mentioned in the earlier subchapter on formal marriage, the original view of marriage was a basis for reproduction - to provide a stable setting for childrearing. Given this mandate, historically there was no reason to extend marriage to same sex couples.

Thus, until recently, the rule had been that a state may prohibit same sex marriages because marriage is a civil relationship between a man and a woman; same sex marriages are outside the definition. As such, a ban on same-sex marriages did not constitute gender discrimination. See, e.g., Singer v. Hara, 522 P.2d 1187 (Wash. 1974).

Full Faith and Credit Clause

The topic of same-sex marriage was complicated further by the Full Faith and Credit Clause of the U.S. Constitution. In theory, if Massachusetts (for example) recognized same-sex marriage and the couple moved to say, Kentucky, the new state has a constitutional obligation to also honor that relationship. This is the same recognition extended to either formal or common law married couples who move. Notwithstanding the Full Faith and Credit Clause of the U.S. Constitution; if recognizing same-sex marriage would violate the strong "public policy" of the state, it need not recognize the out of state marriage. This idea was further formalized by the enactment of the Federal Defense of Marriage Act (DOMA).

Defense of Marriage Act (“DOMA”)

In response to the unprecedented 1993 ruling by the Hawaii Supreme Court (See, e.g., Baehr v. Lewin, 74 Haw. 530 (1993)), and the failure of the Hawaii Legislature in 1996 to pass a proposed State Constitutional Amendment to overrule that Court, the U.S. Congress, concerned that the entire country, including the Federal government, could find itself in a situation where it would be forced to recognize same-sex “marriages,” enacted the Defense of Marriage Act (“DOMA”).

The Defense of Marriage Act had two sections, one addressing federalism issues pursuant to Art. IV, Sec. 1, the Full Faith and Credit Clause; the other clarifying the intent of Federal law. The section enacted pursuant to Congress's "effects" power under Art. IV, Sec. 1, the Full Faith and Credit clause, reaffirms the power of the States to make their own decisions about marriage:

.... No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession or tribe, respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state, territory, possession or tribe, or a right or claim arising from such relationship. 

Pub. L. 104-99 sec. 2, 100 Stat. 2419 (Sep. 21, 1996) codified at 28 U.S.C. § 1738C.

Originally, The Federal law section stated that under Federal law, a legally recognized marriage requires a man and woman. Specifically, it read:

.... In determining the meaning of any Act of Congress, or for any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, 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. 

Pub. L. 104-199, sec. 1, 100 Stat. 2419 (Sep. 21 1996).

However, in a historic decision, on June 26, 2013, the United States Supreme Court struck down this section of the Federal Defense of Marriage Act (DOMA). The Supreme Court found that by defining marriage as a "legal union between one man and one woman as husband and wife" it violated the Equal Protection Clause of the United States Constitution thereby making it unconstitutional. See United States v. Windsor, 133 S.Ct. 2675 (2013).

While this case's discussion of DOMA is mainly obsolete in light of the Obergefell decision (see below), this decision remains important because of its discussion of the "Full Faith and Credit" clause and the extent to which state policy can be overridden by that clause.

Same Sex Marriage Gains Recognition and Legality

Hawaii was the first state to recognize same sex marriage. Under Hawaii's Constitution, "no person shall be denied equal protection of the laws or the enjoyment of civil rights based on religion, sex, ancestry or race." This is a more expansive guarantee than contained in the Federal Constitution. Given this higher level of protection, any statute that seemingly discriminates on the basis of sex must pass a strict scrutiny test (the highest of the three levels of scrutiny for statutes under the Constitution). As such, a Hawaii statute banning same-sex marriages is presumed unconstitutional unless the state can show the sex-based classification is justified by a "compelling state interest" and the statute is "narrowly tailored" to avoid unnecessary abridgement of the applicant couple's constitutional rights. See  Baehr v. Lewin, 74 Haw. 530 (1993).

Through the 2000's and into the 2010's, more and more states began to recognize same sex marriage. In 2003, the Massachusetts Supreme Court ruled that the state Constitutional guarantee of equal protection required the state to allow same sex couples of marry. See Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003).

Partially in response, on election day in 2004, eleven states (including Presidential election "swing" states Michigan and Ohio) passed state Constitutional Amendments banning same sex marriage. A similar state constitutional amendment was passed in California in 2008, but this was subsequently overturned by decision of the Ninth Circuit Court of Appeals. See Perry v. Brown, 671 F. 3d 1052 (9th Cir. 2012).

In spite of these setbacks, the trend towards recognition of same sex marriage picked up steam. As of early 2015, almost three quarters of U.S. states allowed same sex marriage. In only Texas, Louisiana, Arkansas, Mississippi, Alabama, Georgia, Tennessee, Kentucky, Ohio, Michigan, North Dakota, South Dakota and Nebraska were same sex marriages still banned.

Finally, on June 26, 2015, the US Supreme Court decided Obergefell v. Hodges, 135 S. Ct. 2584 (2015), in which the Court found that denying marriage licensed to same sex couples violated but the due process and equal protection clauses of the United States Constitution. The Court's 5-4 decision, written by Justice Anthony Kennedy, rules that marriage was a fundamental right for a variety of reasons, including the right to autonomy, the importance of marriage to committed couples, the effect on the raising of children that marriage has and the fact that marriage is a "keystone" of social order. Because marriage is a fundamental right, the government needs a compelling reason to deny it to some people. The Court found that no compelling reason exists to deny marriage licenses to same sex couples. All four dissenting Justices filed their own separate dissents, all arguing that the majority had interpreted the due process clause of the Constitution too broadly.

On the other hand, a marriage between a male and a postoperative transsexual, who surgically changed his external sexual anatomy from male to female, has been upheld even when same sex marriages were banned.

EXAMPLE: Ella, formerly Elton, wishes to obtain a marriage license to marry Daniel. Ella will not be denied a marriage license because she underwent a successful sex change operation prior to marriage. Public policy will not prevent this marriage from being valid. The court stated: "If such sex reassignment surgery is successful and the postoperative transsexual is, by virtue of medical treatment, thereby possessed of the full capacity to function sexually as a male or female, as the case may be, we perceive no legal barrier, cognizable social taboo, or reason grounded in public policy to prevent that person's identification at least for purposes of marriage to the sex finally indicated." See M.T. v. J.T., 355 A.2d 204 (N.J. 1976).