The first legal challenges to the ban on same-sex couples marrying in the US came in the early 1970s, without success: Minnesota Supreme Court ruled in 1971 that a ban on SSM wasn’t unconstitutional, and the U.S. Supreme Court declined to hear a case regarding SSM in 1972, “for want of a substantial federal question.” That denial blocked lower federal courts from addressing the matter of same-sex marriage for decades.
It wasn’t until 1993 that the notion of same-sex marriage was taken seriously by the courts, when a ruling from the Hawaii Supreme Court in Baehr v. Lewin suggested for the first time that refusing to allow same-sex couples to marry might be unconstitutional. The reaction to Hawaii’s ruling, rather than build momentum to allow SSM, instead resulted in a backlash in congress, who pushed through the Defence of Marriage Act, specifically prohibiting the federal government from recognising same-sex marriages.In 1998, two years after DOMA passed, Hawaii voters approved a state constitutional amendment banning SSM. Other states also introduced and passed their own amendments specifically defining marriage as a contract between a man and a woman.
In 2003, the U.S. Supreme Court struck down the last remaining anti-sodomy laws in its ruling on Lawrence v. Texas, making homosexual sex completely legal within the U.S. (previously, “homosexual contact” had been illegal in Texas, Kansas, Oklahoma, and Missouri, and nine other states had less-specific sodomy laws which were also invalidated by the ruling). Just a few months later, Massachusetts made history by becoming the first state to officially sanction same-sex marriage, based on a ruling by the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health.
In February 2004, before the Massachusetts ruling could be enacted, city officials in San Francisco issued marriage licences to 4000 same-sex couples, although they were ultimately stopped by order of the California Supreme Court. These were technically the first same-sex marriage licences granted in the U.S. Clerks in Sandoval County, New Mexico; New Paltz, New York; Multnomah County, Oregon; and Asbury Park, New Jersey, also engaged in civil disobedience by issuing same-sex marriage licences for brief periods at around the same time as they were bring issued in San Francisco, although all were quickly halted by the courts and the licences were declared invalid.
In response, eleven more states — Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon, and Utah — passed constitutional amendments defining marriage as solely between one man and one woman.Kansas and Texas passed similar amendments the following year; and in 2006, Alabama, Colorado, Idaho, South Carolina, South Dakota, Tennessee, Virginia, and Wisconsin adopted similar amendments. The only state in which a proposed amendment failed to win public support was Arizona. Meanwhile, in California, then Governor Arnold Schwarzenegger vetoed two pieces of legislation to legalise SSM.
In May 2008, the Supreme Court of California ruled that the state definition of marriage as opposite-sex only was unconstitutional, legalising SSM in a stroke. In response voters passed Proposition 8, a constitutional amendment defining marriage as only between one man and one woman, that November, preventing any more same-sex marriages from being performed, and throwing 18,000 people’s marriages into legal limbo.
In October 2008, the Connecticut Supreme Court ruled that the state’s civil union statute was discriminatory, and required the state to immediately recognise and perform same-sex marriages. The legislation of Arizona subsequently got the public support it had been lacking to amend the state constitution to ban SSM, and Florida also passed a similar amendment of its own.
Iowa Supreme Court was the next to rule the prohibition on SSM unconstitutional, in 2009, although three of the justices who made that decision were removed from office by the Iowa electorate at their next opportunity. The same year, Vermont, New Hampshire, and the District of Columbia legalised same-sex marriage through legislation, rather than through the judiciary. Also in 2009, Maine GovernorJohn Baldacci signed SSM into law, although the legislation was stayed pending a vote and was ultimately repealed without ever going into effect. Some members of the Democratic Party proposed legislating to repeal DOMA, but the idea didn’t garner enough support to be seriously considered.
As of January 2010, 29 states had constitutional provisions restricting marriage to one man and one woman, while 12 others had statutes that did so. Nineteen states banned any legal recognition of same-sex unions that would be equivalent to civil marriage. Voters had approved 28 out of 30 popular referenda in which states asked voters to adopt a constitutional amendment or initiative defining marriage as the union of a man and a woman. Arizonans voted down one such amendment in 2006, but approved a different amendment to that effect in 2008.
In June 2011, New York legalised same-sex marriage. Washington, Maryland, followed suit in March 2012. Two months later, North Carolina instituted a constitutional amendment banning any kind of legal same-sex union.
With so much back-and-forth between the states, SSM became a hot political topic. The RNC party line was for denying legal recognition to same-sex unions (and marriages, specifically), and asserting each state’s right to amend its constitution to define marriage as a contract between one man and one woman. The DNC adopted a pro-SSM platform, opposed the constitutional amendments at state level, and DOMA at federal.
In November 2012, voters approved the first legislation permitting SSM by popular ballot in three states: Maine, Maryland, and Washington (where SSM was already partially legal). In the same election, Minnesota rejected a constitutional amendment banning SSM, but didn’t go so far as to legalise it.
Meanwhile, a significant federal case was working its way through the courts. United States v. Windsor was heard at the U.S. Supreme Court, and its ruling in June 2013 struck down Section 3 of DOMA, deeming it contravened the Fifth Amendment. The ruling meant that the federal government was required for the first time to recognise legally-performed same-sex marriages, and afford them the same rights as opposite-sex couples at a federal level. (On a personal note, without that ruling, I wouldn’t have been allowed to live in the U.S. as AJ’s wife, even if we were lawfully married.)
On the same day, the SCOTUS also handed down another significant ruling, in Hollingsworth v. Perry, the Californian Prop 8 challenge. The SCOTUS dismissed the case due to lack of standing; that is, harm must be proven by the complainant, and as no anti-SSM campaigner could prove they were in any way harmed by same-sex marriages being performed, they had no lawful right to halt them. This meant that SSMs could resume immediately in California, and protected couples in the states which already allowed SSM from having their marriages invalidated at a later date if political opinion should shift, but didn’t require states to introduce SSM legislation, or overturn states’ constitutional amendments prohibiting SSM.
A New Jersey superior court ruled the same year that same-sex couples had a right to marry, reasoning that per the Windsor ruling, same-sex couples were being denied federal rights if they weren’t permitted to marry. Governor Chris Christie, who’d already vetoed pro-SSM legislation, filed an appeal with the New Jersey Supreme Court, but withdrew the motion after the court failed to stay the lower court’s ruling.
In August 2013, eight counties in New Mexico began issuing same-sex marriage licences, some based on a legal ruling and some of the clerks’ own volition. In December 2013, the New Mexico Supreme Court upheld the licences and ruled that SSM was a statewide constitutional right. Other jurisdictions to legalise SSM in the same year were Rhode Island, Delaware, Minnesota, Hawaii, and Illinois.
In December 2013, a Utah district court judge ruled the state’s SSM ban unconstitutional in his verdict of Kitchen v. Herbert. Salt Lake City and various counties began issuing same-sex marriage licences immediately, while the state petitioned the U.S. Supreme Court for a stay which was granted two weeks later. Four days after the stay was granted, U.S. Attorney General Eric Holder confirmed the federal government would recognise the marriages performed within the window between ruling and stay.
The Oregon constitutional amendment was overturned by a district judge in May 2014, and a motion to have the ruling stayed failed without support of the Governor. A day after the Oregon ruling, Pennsylvania’s ban was also struck down, and the state Governor again declined to intervene. One county clerk tried repeatedly to intervene, until her efforts were vetoed by U.S. Supreme Court Justice Samuel Alito.
In September 2013, Louisiana’s SSM ban was upheld by a district judge, the first to do so, providing an important split in the federal rulings on SSM. (Due to the nature of the U.S. legal system, until the circuit courts are split on a decision, it’s unlikely the SCOTUS will intervene in states’ laws.)
In October 2014, the SCOTUS declined to consider the matter of same-sex marriage as referred to them by the Fourth, Seventh, and Tenth Circuits, which had all ruled that SSM bans were unconstitutional. The states involved were Virginia, Indiana, Wisconsin, Oklahoma, and Utah, and the denial to hear those cases immediately legalised SSM in all of them.
Six other states fell under the banner of those circuits, and their SSM bans were also called into question by the ruling. Colorado Attorney General John Suthers dismissed his appeal of a lower court ruling on the matter and requested the stay in his jurisdiction be lifted, allowing same-sex marriages to proceed. West Virginia Governor Ray Tomblin immediately ordered his state agencies to comply with the federal court ruling. A district judge in North Carolina struck down the state’s ban based on the Fourth Circuit decision. A Wyoming district judge did the same, but stayed his decision until the defendants confirmed they wouldn’t appeal to the Tenth Circuit. The stay was lifted four days later. South Carolina’s ban was also struck down by a district judge and stayed; the ruling came into effect a week later after the U.S. Supreme Court refused to extend it.
Only Kansas refused to comply with the federal ruling and continued to deny marriage rights to same-sex couples. A number of judges interpreted the Tenth Circuit decision to mean they could issue SSM licences, and a Kansas district judge ruled the state’s SSM ban unconstitutional (a ruling the state Attorney General tried to stay, but was denied), but the state continued to contend that the ban was valid everywhere except in the two counties named in the federal lawsuit, and access to marriage for same-sex couples remained patchy at best.
In November 2014, the Sixth Circuit upheld SSM bans in Kentucky, Michigan, Ohio, and Tennessee, providing the split in the circuits necessary for SCOTUS to rule on the matter. SCOTUS accepted the cases in January 2015, and consolidated them into one (Obergefell v. Hodges). The Supreme Court ruled on 26th June 2015, 5-4 in favour of same-sex marriage being constitutional. Each of the dissenting judges wrote their own rebuttal to the decision, and countersigned the others’. The ruling was announced on the twelfth anniversary of the decriminalisation of homosexuality, and the second anniversary of the DOMA and Prop8 rulings. Same-sex marriage is now performed and recognised at state and federal level across the United States.
