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Gay Marriage Laws

Learn about gay marriage laws, gay marriage amendments and other legal issues affecting gay and lesbian couples.

1. Court vs. Legislature in Gay Marriage Debate 

Most of the action taken in the gay marriage debate has been through court cases mounted by gay couples who demand the right to marry or to have their foreign marriage recognized in their home country. An important aspect of couples bringing cases to court is that these cases challenge courts, and the governments that support them, to justify their stands on gay marriage through the law. If courts and governments cannot establish that an argument against gay marriage is justified legally, they can be sued for discrimination.

The winning of a court case does not guarantee that gay marriage will be made legal in that area. Court decisions are separate from governmental legislation, which is what controls marriage law. A court decision can be used to pressure a government to pass legislation in the usual course of events. However, in most cases where the gay couple has won, that decision has been overturned during an extensive appeal process.

The cases against existing marriage laws are important as they are slowly building up legal precedent. The legal system in most countries operates on precedent – if a judge has said or decided something before, it can be used to argue that another judge should also do so. Gay rights groups and gay-friendly judges are aware of this, as a recent finding in New York shows.

New York Supreme Court Judge Doris Ling-Cohen found that 'moral disapproval of same-sex couples or of individual homosexuals is not a legitimate state purpose or a rational reason for depriving plaintiffs of their right to choose their spouse.' She also noted that the frequently-used 'marriage is for procreation' argument falls down because the law does not ban women past child-bearing age from marrying.

As the cases world wide slowly build up, couples fighting for gay marriage may soon have their chance to exchange vows and gay wedding rings.


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2. Case Samples of Gay Marriage Law Tests

In 2008, Massachusetts became the first state in the United States to allow for same sex marriage. Besides the truly feel-good emotion that husbands and wives enjoy in same sex marriage, there are very practical aspects to the equality same sex couples have under the law.

Same sex spouses can now authorize emergency medical treatment for one another. Property can be inherited without excruciating amounts of documentation to explain relationships that frequently underwent challenges from blood relatives. Also, as a recognized family unit, same sex married couples gain by eligibility for less-expensive health insurance.

Hardcore conservatives still oppose the legality of sex same marriage, staunchly supporting the view that marriage can only be between a man and a woman. However, over the past four years, most of the state's residents now take same sex marriage as the norm. The state even allows out-of-state couples to marry in Massachusetts. The acceptance of same sex marriage in Massachusetts is proven by the true story of a kindergarten student whose teacher was recently married. The little girl noticed the new wedding band and asked her teacher, “Did you marry a boy or a girl?”

Two studies conducted five years after the law went into effect strongly suggest that same sex marriage had a beneficial impact on the state financially. Despite this The Massachusetts Family Institute commissioned a poll at about the time the two studies’ results were published. The Institute claims that 44 percent of Massachusetts voters opposed same sex marriage and 43 percent were in favor of it.

Overall, the Massachusetts experience appears to be successful.


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3. Freedom of Religion

As some states across the country debate whether or not to legalize gay marriage, many people question what impact the legalization of gay marriage will have on religious freedom. It is well known that many religious institutions and organizations oppose gay marriage and would not perform these ceremonies in their church – but how far can their opposition go?

According to the Pew Forum on Religion and Public Life, proponents of gay marriage claim that while religious institutions have the right to refuse to marry gay couples they cannot discriminate gay couples in other mediums. For instance, if a religious institution runs an adoption agency, they should not be allowed to refuse a child to a homosexual couple hoping to raise a child strictly based on their sexuality. However, many supporters feel that because of religious freedom, clergy members do have the right to create their own criteria for marriage ceremonies that are performed in their particular institutions and also have the right to preach about their own marriage beliefs.

When it comes to the legalization of gay marriage, the states have to ensure that antidiscrimination laws are clear, but also that freedom of religion is preserved. It is a thin line to cross, but ultimately, everyone should still have the right to practice the religion they choose – no matter what their age, race, gender or sexuality. It is an issue that should remain at the forefront of debates as legislators across the country consider the legalization of gay marriage.

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4. Legal Parallels to the Gay Marriage Issue

Activists often compare the struggle for gay rights to the civil rights movement. The two movements certainly have their differences, but they share a basic struggle for equality. Just as the civil rights movement began with a battle to end de jure segregation, or segregation ordained by the law, the lesbian, gay, bisexual, and transgender (LGBT) community continues to fight discriminatory laws.

Both groups also have learned the importance of patience. African-American slaves may have been set free by the Emancipation Proclamation, but their United States continued to stifle their legal rights for another hundred years. Likewise, the LGBT community's progress has been slow.

The gay rights movement recently found momentum as a result of the recent repeal of Don't Ask Don't Tell (DADT). This law forced gays serving in the military to hide their sexual orientation. Those even suspected of being gay could be immediately discharged. Members of the LGBT community hope that the repeal of DADT will start the ball rolling on gay rights, just as the integration of the military spurred a huge turnaround for the civil rights effort during the post-war years.

The next big legal hurdle for the gay community is same-sex marriage. In recent years, states such as Connecticut and New York have opened up marriage to same-sex couples. However, statistics from the National Conference of State Legislatures reveals that during the same period, other states pushed through amendments defining marriage as the union of one man and one woman. The fight for marriage equality is no cake walk, but with work, gay rights activists may soon enjoy the equality they've been working so hard to obtain.


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5. The Defense of Marriage Act

In 1996, President Bill Clinton signed the Defense of Marriage Act (DOMA) into law. The legislation was a response to demands from gay and lesbian activists for the legalization of same-sex marriage. This was an election year and the Republican candidates loudly proclaimed that marriage referred only to a union between a man and a woman. Incumbents worried that non-support of the DOMA would end their political careers.

The DOMA codifies the federal government’s denial of same-sex marriages in regards to federal laws and programs. It allows the federal government to override any state laws permitting same-sex marriages. This means that a federal employee’s spouse in a same-sex marriage is denied the benefits that a spouse in a heterosexual marriage would receive, including insurance coverage, Social Security survivor’s benefits and coverage under the Family and Medical Leave law.

On April 4, 2012, the first challenge to the constitutionality of DOMA was heard in the U.S. 1st Circuit Court of Appeals in Boston. A faction of U.S. House of Representatives Republicans appealed the July 2010 decisions by Judge Joseph L. Tauro in U.S. District Court upholding the plaintiffs’ contention in two separate cases that DOMA is unconstitutional because it treats some married couples differently than others. The House members were forced to appeal the decision as a result of the decision by President Barack Obama’s administration to stop defending DOMA in appeals cases.

Gay rights activists hope that more challenges will take DOMA to the U.S. Supreme Court for a ruling on its constitutionality.

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6. Gay Marriage Amendment

While the United States federal government does not currently recognize same-sex marriage, individual states have addressed the issue through legislation. In 2004, Massachusetts approved gay marriage, becoming the first state to grant marriage licenses to same-sex couples.

Since then, Iowa, Connecticut, New Hampshire, New York, Vermont, Washington D.C. and Massachusetts have also legalized same-sex marriage. The Suquamish Indian tribes of Oregon and Washington have also given approval. Currently, the states of Washington and Maryland have pending legislation approving same-sex marriage, but final approval could be delayed pending a voter referendum.

In June 2008, California approved gay marriage, but in November 2008, voters repealed the action with the passage of Proposition 8 that prohibits same-sex marriages. As of 2012, laws for same-sex marriage has been set through state legislatures, rather than with a public vote.

The movement for same-sex marriage rights began in the U.S. in the 1970s as a political issue. The Hawaii Supreme Court decided in 1993 through Baehr v Lewin that a ban could be in violation of their state's constitution, thus prompting the federal government to pass the Defense of Marriage Act, opening the door for individual state legislation.

The support of same-sex marriage has grown considerably in recent years, with polls showing a vast majority of Americans supporting it. According to ProCon.org, as of February 2012, 10 countries outside the U.S. have also legalized same-sex marriage, including the Netherlands, Belgium, Canada, Spain, South Africa, Norway, Sweden, Argentina, Iceland, and Portugal. Currently, gay couples are also allowed to marry in parts of Mexico and Brazil.


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