Same-sex marriage

The recognition of civil unions between same-sex couples by the Vermont state legislature in 2000 helped spark a cultural and political debate on the issue of same-sex marriage in the United States that would draw interest throughout the world. The decision was the first of many state laws either explicitly enshrining or banning the practice, which culminated in a landmark Supreme Court decision in 2015 that legalized same-sex marriage nationwide. That tension remained both domestically and internationally during the first few decades of the twenty-first century, as several dozen countries would legally recognize same-sex marriage and more than twice as many would reject it.

Background

Marriage is an ancient cultural practice in virtually every society and has been enshrined in legal systems worldwide. Though usually rooted in personal relationships with an expectation of sexual activity, historically the practice took a wide variety of forms and definitions among different peoples. This included examples of marriage between individuals of the same sex or gender dating back to antiquity. Historians have found evidence of gay marriages in ancient Rome and Greece, for example. Numerous euphemistic phrases have been used to describe such same-sex relationships; some of the more popular expressions were “female husbands,” “Boston marriages,” “bachelor marriages,” and “fictive marriages.”

However, over time the practice came to be commonly restricted to the union of one male and one female in Western society and many other cultures, largely due to the influence of religious beliefs. Still, the often blurry nature of marriage as an institution with overlapping personal, religious, and legal meanings meant that the intersection with sex and gender remained complex.

Attention to the issue of same-sex marriage increased in the late twentieth century as the LGBTQ rights movement gained visibility and momentum. While marriage between people of the same sex was generally not considered legal in most countries, many same-sex couples lived in informal marriages and some sought legal recognition.

Same-Sex Marriage in the United States

In 1971 activists Michael McConnell and Jack Backer obtained what is considered the first valid state marriage license granted to a same-sex couple in the United States, though they subsequently faced many challenges to the legality of their union. Efforts to win legal status for same-sex relationships increased in the 1980s and '90s, stirred in part by the legal struggles of many gay and lesbian couples amid the AIDS epidemic. However, public sentiment remained against same-sex marriage.

In 1993 the Supreme Court of Hawaii ruled that barring same-sex couples from legal marriage could contradict the state's constitution, and in 1996 a trial judge in the same case held that same-sex couples could marry in the state, though the decision was stayed. However, this set off a wave of backlash, with many conservative politicians throughout the US introducing state legislation to explicitly ban same-sex marriage and block legal recognition of such unions from other states.

The Defense of Marriage Act (DOMA, 1996) took similar action at the federal level, limiting the legal definition of marriage to the union of one man and one woman and allowing states to refuse to recognize same-sex marriages validly performed in other states where it was legal. Thus, married same-sex couples were prevented from receiving any federal benefits provided to opposite-sex married couples. Hawaii's acceptance of same-sex marriage was also overturned by voters approving an amendment to the state constitution in 1998.

As public support shifted in favor of same-sex marriage, state and federal laws and court decisions began to reflect these changing attitudes. In December 1999, the Vermont Supreme Court ruled in Baker v. Vermont that same-sex couples were entitled to the same marital rights, privileges, and benefits granted to opposite-sex couples. The ruling made Vermont the first US state to grant official recognition and equal rights to unions of gay and lesbian couples. The following year, civil unions were made legal in Vermont. A semantic distinction was made between “marriage” and “civil union,” with the text of the law defining marriage as “a union between a man and a woman” and designating civil unions as a specifically nonreligious alternative that would grant same-sex couples “all the same benefits, protections and responsibilities under law” as opposite-sex couples. However, the federal government did not recognize civil unions, and other states were not obliged to do so either.

Following a similar court decision in the 2003 case Goodridge v. Department of Public Health, Massachusetts became the first state to officially legalize same-sex marriage in May 2004. While proponents of same-sex marriage hoped that the legislation in Massachusetts would spark a nationwide trend in support of marriage rights, it initially gave rise to significant and vocal opposition nationwide. More than three thousand gay and lesbian couples sought marriage licenses in San Francisco, California, in the spring of 2004. By that March, however, the Supreme Court of California halted the issuance of marriage licenses to same-sex couples, pending the result of a proposed constitutional amendment to ban same-sex marriage across the country. Despite the support of then president George W. Bush, the proposed amendment was blocked by the US Senate in July 2004 and by the US House of Representatives later that year.

Opposition to same-sex marriage nonetheless prospered at the state level. Between 1998 and 2012, thirty-one states passed their own constitutional amendments banning same-sex marriage. Other state legislatures, including Connecticut, New Jersey, and New Hampshire, opted to pass laws legalizing civil unions rather than same-sex marriage.

Meanwhile, more states also took action toward marriage equality. In 2009 Vermont became the first US state to legalize same-sex marriage through legislation rather than a court ruling. Other states soon followed: New Hampshire and the District of Columbia later in 2009, New York in 2011, Maine, Maryland, and Washington State in 2012, and Delaware, Hawaii, Illinois, Minnesota, and Rhode Island. Court rulings had the same effect in Iowa in 2009 and California, New Jersey, and New Mexico in 2013. Guam legalized same-sex marriage in June 2015, becoming the last US state or territory to do so individually.

In its 2013 decision in United States v. Windsor, the US Supreme Court struck down the section 3 of DOMA, which defined marriage as a union specifically between a man and a woman. This was a significant legal victory for same-sex couples because it meant that those who were legally married in their home states could not be denied federal benefits provided to married couples. It was also symbolically significant, as it granted federal recognition to same-sex marriages without requiring the same from states where it was not authorized.

Windsor led to many other legal challenges to state bans on same-sex marriage, and an increasing number of states legalized the practice to some degree. Some thirty states enacted constitutional amendments banning same-sex marriage. The increasing patchwork of state legislation and legal precedent in various federal appeals courts, combined with the challenges presented by the full faith and credit clause, meant that the Supreme Court would eventually need to weigh in.

The most comprehensive victory for same-sex marriage rights came on June 26, 2015, with the US Supreme Court's decision in Obergefell v. Hodges. This petition combined four cases, each involving a statute that allegedly denied same-sex married couples the same rights as opposite-sex married couples. In a 5–4 decision, Justice Anthony Kennedy wrote on behalf of the court that permitting opposite-sex marriage while prohibiting same-sex marriage violated the Fourteenth Amendment's guarantee of equal protection under the law. He noted that the Supreme Court had previously described marriage as a “fundamental right” and that it was therefore appropriate for any couple to be allowed to marry, regardless of the sex of the two parties.

Despite the groundbreaking Supreme Court ruling that made same-sex marriage legal throughout the United States, some conservatives continued to oppose marriage equality while some liberal activists pushed to protect same-sex marriage even should Obergefell v. Hodges be overturned. In the 2020 general election Nevada became the first state to constitutionally protect same-sex marriage, as voters approved an amendment removing a narrow definition of marriage.

Amid ongoing efforts to push back against Obergefell, some later Supreme Court cases called into question the constitutionally protected right to same-sex marriage. In June 2022 the court's 5–4 decision in Dobbs v. Jackson Women's Health Organization, which overturned the constitutional right to privacy established in the landmark abortion case Roe v. Wade (1972), was widely seen as a threat to other precedents, including Obergefell. In response, pro–marriage equality activists supported the passage of the Respect for Marriage Act (2022), which formally repealed DOMA and mandated nationwide recognition of same-sex marriages performed in a state where the practice was legal under state law. In October 2022 the US Department of Veterans Affairs also announced it would provide survivor benefits to the spouses of LGBTQ+ veterans who were not legally allowed to marry before Obergefell.

As with the Dobbs decision, many viewed the Supreme Court's ruling in 303 Creative v. Elenis (2023) as opening the door to potential legal challenges to Obergefell. In the latter case, the court ruled that creative professionals could in some instances refuse to offer services that express views contrary to their own deeply held convictions. While the ruling did not impact the legality of same-sex marriage directly, critics suggested that it could increase discrimination and undermine the precedent of marriage equality.

Same-Sex Marriage in Other Countries

The Netherlands passed a bill legalizing same-sex marriage in 2000, the first country to do so on a national level. The ruling did not apply to the Dutch Caribbean islands of Aruba, Curaçao, and Sint Maarten, although marriages performed in the Netherlands were legally recognized in those territories. Belgium made same-sex marriage legal in 2003; Canada and Spain in 2005; South Africa in 2006; Norway in 2008; Sweden in 2009; Argentina, Iceland, and Portugal in 2010; Denmark in 2012; Brazil, England, France, New Zealand, Uruguay, and Wales in 2013; and Luxembourg and Scotland in 2014. Ireland legalized same-sex marriage by referendum in May 2015, becoming the first country to do so by popular vote. Greenland, an autonomous Danish territory not subject to Denmark's earlier law, also approved same-sex marriage in 2015. That year Finland's president signed a law legalizing the practice, which went into effect in 2017. In 2016 Colombia legalized same-sex marriage by a 6–3 Constitutional Court vote. Germany, Malta, and Australia all legalized the practice in 2017. Taiwan became the first Asian country to do so in 2019, and that same year Australia, Ecuador, and Northern Ireland followed suit.

According to Our World in Data, by then, thirty-seven countries legally recognized same-sex marriages, another five recognized only same-sex marriages performed abroad, and twelve authorized civil unions or domestic partnerships that gave same-sex couples limited rights. However, seventy-nine countries had explicitly banned same sex-marriages.

The trend of legalization continued into the 2020s. In 2020 Costa Rica became the first Central American country to legalize same-sex marriage, after the nation's highest court had found the ban on such marriages unconstitutional in 2018 and set a deadline for the ban to expire without legislative action. The practice also became legal in Chile and Switzerland in 2021, Slovenia, Cuba, and all of Mexico in 2022, Andorra and Nepal in 2023, and Greece and Thailand in 2024; Estonia also passed legislation legalizing same-sex marriage in 2023, taking effect in 2024. Also in 2024, a South Korean court deemed same-sex relationships an “economic cohabitation tantamount to” different-sex legal and common-law marriage, although it rejected the argument that a same-sex couple were married under common law.

Religious Views on Same-Sex Marriage

Prominent denominations, including the Episcopal Church and Anglican Communion, United Methodist Church, Evangelical Lutheran Church in America, and the Presbyterian Church (USA), have faced schism over the issue of accepting and even blessing same-sex marriages. Meanwhile, Eastern Orthodox Christians, Southern Baptists, Latter-day Saints, other conservative Christian sects, and Orthodox Jews, as well as many Muslims, Hindus, and Buddhists have continued to reject same-sex marriage. In late 2023, the Roman Catholic Church, one of the world's largest religious institutions, made headlines when Pope Francis controversially granted discretion to priests over when and whether to bless same-sex couples, though they still could not perform marriage ceremonies for same-sex couples.

Bibliography

Alonzo, Amy. “Nevada Becomes First State to Constitutionally Protect Same-Sex Marriage.” USA Today, 8 Nov. 2020, www.usatoday.com/story/news/nation/2020/11/05/nevada-first-state-constitutionally-protect-same-sex-marriage/6183655002/. Accessed 22 May 2024.

Archibold, Randal C., and Paulina Villegas. “With Little Fanfare, Mexico Supreme Court Legalizes Same-Sex Marriage.” The New York Times, 14 June 2015, https://www.nytimes.com/2015/06/15/world/americas/with-little-fanfare-mexican-supreme-court-effectively-legalizes-same-sex-marriage.html. Accessed 11 Sept. 2024.

Associated Press. “Thailand’s Senate Overwhelmingly Approves a Bill to Legalize Same-Sex Marriage.” NPR, 18 June 2024, www.npr.org/2024/06/18/nx-s1-5010446/thailand-same-sex-marriage. Accessed 11 Sept. 2024.‌

Barrett, Claer. “Law Change Led to 1,400 Gay Marriages in England and Wales.” Financial Times, 21 Aug. 2014, https://www.ft.com/content/ceec1500-2916-11e4-9d5d-00144feabdc0. Accessed 11 Sept. 2024.

Belluck, Pam. “Same-Sex Marriage: The Overview; Marriage by Gays Gains Victory in Massachusetts.” The New York Times, 19 Nov. 2003, https://www.nytimes.com/2003/11/19/us/same-sex-marriage-overview-marriage-gays-gains-big-victory-massachusetts.html. Accessed 11 Sept. 2024.

Breuninger, Kevin. “House Passes Same-Sex Marriage Protections in Response to Roe Ruling, with Murky Senate Path Ahead.” CNBC, 19 July 2022, www.cnbc.com/2022/07/19/house-votes-on-same-sex-marriage-bill-after-supreme-court-roe-ruling.html. Accessed 22 May 2024.

Choe Sang-Hun. “Same-Sex Couples in South Korea Win Landmark Rights Ruling.” The New York Times, 18 July 2024, www.nytimes.com/2024/07/18/world/asia/south-korea-same-sex-rights-ruling.html.‌

Cooper, Alex. “Respect for Marriage Act Heads to Biden's Desk after House Vote.” Yahoo! News, 8 Dec. 2022, news.yahoo.com/respect-marriage-act-heads-biden-171055576.html. Accessed 22 May 2024.

Dabhoiwala, Faramerz. “The Secret History of Same-Sex Marriage.” The Guardian, 23 Jan. 2015, www.theguardian.com/books/2015/jan/23/-sp-secret-history-same-sex-marriage. Accessed 22 May 2024.

Herre, Bastian, and Pablo Arriagada. “LGBT+ Rights Have Become More Protected in Dozens of Countries, but Are Not Recognized across Most of the World.” Our World in Data, 24 June 2024, ourworldindata.org/progress-lgbt-rights. Accessed 30 Aug. 2024.‌

“How Legal Tide Turned on Same-Sex Marriage in the US.” BBC News, 26 June 2015, https://www.bbc.com/news/world-us-canada-21943292. Accessed 11 Sept. 2024.

“The Journey to Marriage Equality in the United States.” Human Rights Campaign, www.hrc.org/our-work/stories/the-journey-to-marriage-equality-in-the-united-states. Accessed 22 May 2024.

Klarman, Michael J. “How Same-Sex Marriage Came to Be.” Harvard Magazine, Mar.-Apr. 2013, www.harvardmagazine.com/2013/03/how-same-sex-marriage-came-to-be. Accessed 22 May 2024.

Krauss, Clifford. “Gay Marriage Is Extended Nationwide in Canada.” The New York Times, 29 June 2005, https://www.nytimes.com/2005/06/29/world/americas/gay-marriage-is-extended-nationwide-in-canada.html. Accessed 11 Sept. 2024.

Levy, Ariel. “The Perfect Wife: How Edith Windsor Fell in Love, Got Married, and Won a Landmark Case for Gay Marriage.” The New Yorker, 23 Sept. 2013, https://www.newyorker.com/magazine/2013/09/30/the-perfect-wife. Accessed 11 Sept. 2024.

Liptak, Adam. “Supreme Court Ruling Makes Same-Sex Marriage a Right Nationwide.” The New York Times, 26 June 2015, https://www.nytimes.com/2015/06/27/us/supreme-court-same-sex-marriage.html. Accessed 11 Sept. 2024.

Raut, Swechhya. “Nepal: Same-Sex Couples Face Hurdles on Road to Recognition.” Dw.com, Deutsche Welle, 10 July 2024, www.dw.com/en/nepal-same-sex-couples-face-hurdles-on-road-to-recognition/a-69620274. Accessed 11 Sept. 2024.

Rozzelle, Josephine, et al. “Same-Sex Marriage Legalization by Country.” US News & World Report, 27 June 2023, www.usnews.com/news/best-countries/articles/countries-where-same-sex-marriage-is-legal. Accessed 22 May 2024.

“Same-Sex Marriage around the World.” Pew Research Center, 28 June 2024, www.pewforum.org/fact-sheet/gay-marriage-around-the-world/. Accessed 11 Sept. 2024.

“VA Closes Gap in Survivor Benefits for LGBTQ+ Veterans and Survivors.” US Department of Veterans Affairs, 13 Oct. 2022, news.va.gov/109836/va-closes-gap-survivor-benefits-lgbtq-survivors/. Accessed 22 May 2024.

Wills, Matthew. “The Long History of Same-Sex Marriage.” JSTOR Daily, 2 June 2022, daily.jstor.org/the-long-history-of-same-sex-marriage/. Accessed 22 May 2024.

Winterhalter, Elizabeth. “The ‘Deviant’ African Genders That Colonialism Condemned.” JSTOR Daily, 29 Apr. 2021, daily.jstor.org/the-deviant-african-genders-that-colonialism-condemned/. Accessed 30 Aug. 2024.