The Legalities Shaping Same-Sex Marriage


The issue of marriage has long been debated. For centuries, religion and tradition have constantly tried to control who gets married and to whom. Western society has always assumed that marriage should be between one man and one woman; in our ever-progressing society, however, our understanding of the love associated with the bond of marriage has also grown.

As the people of the world continue to change and broaden their perspectives, the boundaries of love have been extended to focus not only on love between a man and a woman, but also between many couples and people of the same sex. Despite the increasing number of loving same-sex relationships, much of society is still quite traditional in its views of this new concept. The issue of "same-sex marriage" is debated in countries all over the world today because of its significance in people’s personal lives, in religion, and within the law.

Overview of Same-Sex Marriage U.S.

In the United States, the modern definition of the family is continually becoming more inclusive of the array of diverse familial structures that are emerging, including households with single mothers, single fathers, and grandparents as the primary caretaker of their grandchildren.

However, some people still believe that lesbian and gay couples today are incapable of having a family. Same-sex couples have fought to attain societal recognition of their varied family structures.

The fight for same-sex marriage began in the early 1970s, when lesbian and gay couples began applying for marriage licenses and taking other steps to legally bind their relationship. Yet the majority of these efforts were rejected both socially and in court.

Although there were still groups seeking to make marriage available to gays and lesbians in American society, by the mid-1980s, the emphasis for the opportunity to marry changed to seeking "domestic partnership." With the start of the 21st century, the movement for marriage equality for same-sex partners was renewed.

In the last few years, couples all over the Unites States applied for marriage licenses and proceeded to sue their states when their requests were denied. Some people decided to hold their own private ceremonies sanctioned by their friends, families and spiritual communities. However, theses private ceremonies lacked legal benefit and are not recognized by the state.

On June 26, 2015, the ruling on Obergefell v. Hodges struck down the Defense of Marriage Act (DOMA), making it mandatory for all 50 states to recognize same-sex marriages as valid.4 This was heralded as a major win in the LGBTQ+ community and in the broader context of the US.

Today, officials in all states are required to issue marriage licenses to same-sex couples, regardless of their personal or religious beliefs. Though this is the case, in many states (such as Kentucky) there has been a struggle to enforce the new ruling because of the religious and/or anti-gay sentiments of some of the state officials. 


Same-Sex Marriage Before June 2015

Before the Supreme Court struck down DOMA, same-sex marriage licenses could be legally issued in 37 of the 50 states.4 In the remaining 13 states, couples had to be of the opposite sex in order to form legally recognized marriage. This created huge inconsistencies across state lines; for instance, a gay or lesbian couple could be legally wed in California, but their rights were no longer recognized once they crossed the Arizona border.

In 2004, the state of Massachusetts became the first in the U.S. to grant same-sex couples the right to marry.4 This controversial piece of legislation was considered a milestone victory for people seeking a same-sex marriage and encouraged other states to follow suit.

Even though some states did not allow same-sex marriages, many companies, such as Exon Mobile and Walmart adopted policies accepting same-sex relationships. Such policies permitted fair housing regulations, and granted traditional marital benefits such as insurance coverage to same-sex partners.

Some cities even created a "domestic partnership" category for both gay and heterosexual couples who lived together unmarried. Such laws provided some of the same legal rights for these couples as for married couples, such as health insurance coverage for the partner, and family leave to care for the partner.

Defense of Marriage Act (DOMA)

To most historians, the United States is known as a socially progressive world power, but its views of same-sex marriage have been slow to change. Similar democratic nations such as France and the United Kingdom were much quicker to legally recognize gay marriage.

In 1996, U.S. President Bill Clinton signed the "Defense of Marriage Act" (DOMA) into law.4 This law served as a way to clarify that marriage is to only be between one man and one woman. However, it preserved the power of the states to create their own laws on same-sex marriage. Under DOMA, benefits provided to heterosexual couples were off limits to same-sex couples. Not only that, the new law also proved to be problematic for legally wedded gay and lesbian couples.1

One such example is New York residents Edith Windsor and Thea Spyer, who in 2007 were legally married in Ontario, Canada. Sadly, Spyer passed away in 2009 and left her estate to her wife, Edith. However, when Windsor attempted to claim the federal estate tax exemption for surviving spouses, she was barred. According to DOMA the term, “spouse” can only be applied to member of a marriage between and male and a female. Consequently, Windsor was obligated to pay for over $360,000 in estate taxes. However, Windsor was able to fight the law all the way to the Supreme Court. Finally, on June 26, 2013, the Supreme Court declared in the case of United States v. Windsor that Section 3 of the Defense of Marriage Act is unconstitutional, allowing same-sex couples to share federal benefits as a heterosexual couple.10

A Supreme Court judge of the majority opinion Justice Kennedy stated that “by seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.” This essentially meant that DOMA deprived citizens of their inalienable rights and violated the constitution.8

Historical Parallels

Having marriage defined as the union of one man and woman discriminates against same-sex couples, keeping them from receiving the same financial and economic benefits as heterosexual couples. Many LGBTQ members and allies have compared this struggle to the interracial marriage laws of the 1960s, when public opinion strongly disapproved of interracial marriage.

Only after the Supreme Court struck down anti-interracial marriage laws did public opinion begin to change. Although interracial marriage was not gender-based, it was still a discrimination against a group of people based on their identity. In the Victorian era issues arose when people married outside of their social class. The 1960s interracial marriages prompted controversy. In the last fifteen years, the controversy of same-sex marriage has been heavily debated. However, history has taught us that as times change, so do laws.

Proposition 8

Since the 1970s, gay rights were one of the top controversial issues discussed in U.S. politics. One major concern of the movement was the legalization or nullification of same-sex marriage. California, commonly seen by the American public as one of the nation's most progressive states, has repeatedly been in the spotlight for controversy regarding same-sex marriage. Unlike many other states, California’s constitution never specified a marriage as between one male and one female. In 2000, state senators attempted to change the language of the constitution through a ballot initiative.

Proposition 22 deemed that marriage was the union between one man and one woman. In the presidential election of 2000, the proposition was successfully ratified with a majority vote of 61.4%. Those open to legalizing same sex-marriage stated that Proposition 22 violated the California State Constitution, which reads that "any law that discriminates on the basis of sexual orientation will from this point on be constitutionally suspect in California in the same way as the laws that discriminate by race or gender."

However, in May 2008, the California State Supreme Court ruled to legalize marriage between two people of the same sex, thereby repealing Proposition 22. Opponents of same-sex marriage quickly drew up a proposition for the November 2008 ballot, Proposition 8.9

The proposition would change the language of the California State Constitution on the issue of marriage, making the clause much more specific and less open to interpretation. It would redefine the institution of marriage by re-writing the California Constitution to read that only marriage between a man and a woman is valid and recognized in California.2

A "yes" vote on Proposition 8 meant keeping marriage exclusively between heterosexual couples, whereas a vote of "no" affirmed homosexual rights to legally marry alongside heterosexual couples.

Proposition 8 passed on November 4, 2008 with 52.3% of voters supporting the measure, effectively banning same-sex marriage in California.9 The 18,000 same-sex marriages that occurred before the passing of Proposition 8 remained legitimate.

Multiple lawsuits were filed soon afterwards based on the debated constitutionality of the proposition. On May 25, 2009, in the case of Strauss v. Horton, the California Supreme Court ruled that Proposition 8 was constitutional. The courts stated that same-sex marriage was not a matter of equal protection under the law since civil unions offer same-sex couples the same rights as married couples.2

Following the California State Supreme Court decision to overturn "the people's vote" against same-sex marriage, there was a public uproar from voters who felt affronted. Advocates of the proposition argued that it would "restore the definition of marriage" to the traditional union of one man and one woman.2

Those in favor of same-sex marriage fought against the claims of anti-gay advocates, arguing that the United States of America was founded on the principle that all people are created equally. By enacting Proposition 8, same-sex couples are denied a freedom that other citizens benefit from. These advocates also draw upon California's constitutional clause on equal protection under the law for all, regardless of race or gender.

The underlying argument for those opposing the ratification of Proposition 8 was that all groups, no matter their sexual orientation, should be seen equally under the same laws and that no group in the U.S. should be denied the fundamental rights that are stated in both the state and national constitutions.2

The Turning Tide

On August 4, 2010, Chief California district judge Vaughn Walker struck down Proposition 8, deeming the piece of legislation unconstitutional. In Walker’s 136-page decision, he stated that “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.”2

Proponents of Proposition 8 were unable to justify why gay and lesbian couples should be denied the right to marry. Thus, Walker ruled that the ban on marriage had no legal basis and unfairly targeted gay and lesbian couples. Prop 8 supporters were outraged and argued that Walker’s sexual orientation (who was openly gay) was a conflict of interest.

Unfortunately, a separate hearing attached a stay order to his ruling, meaning that same-sex marriage would not resume in California during the appeal to the Ninth Circuit of Appeals (a federal court with appellate jurisdiction over district courts). In case that the higher courts would overturn his rule, Walker did not want more gay marriages to take place.

As expected, supporters of the marriage ban successfully appealed to the Ninth Circuit. On February 7, 2012, the Ninth Circuit upheld district judge Walker’s decision. Ninth Circuit Judge Reinhardt believed that “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California.”9

Reinhardt stated that Prop 8’s sole purpose was to discriminate against Californian gay and lesbian couples.9 Furthermore, the judge preserved the stay order preventing same-sex marriage from resuming in California while proponents appealed to the Supreme Court. On December 7, 2012, the U.S. Supreme court agreed to hear the arguments for and against Proposition 8.

Finally, on June 26, 2013, the Supreme Court ruled against Proposition 8, allowing same-sex marriage to resume in California.9 In a split 5-4 vote, the Justices stated that in the case of Hollingsworth V. Perry, traditional marriage supporters had no legal standing or constitutional authority to defend the law in federal courts.9 This essentially meant that because proponents of Proposition 8 were not affected by the decision of whether gay couples could legally be wed, they did not have ground to decide the matter.

Obergefell v. Hodges

Although the overturn of Proposition 8 was seen as a huge victory for LGBT advocates in California, LGBT groups in other states were left dissatisfied. Many people in other states wished for the same rights granted to those in California. In the next two years, people all over the country sued for the right to marry and for the right for their marriages to be recognized by the states.

By October 2014, four of the thirteen federal appellate courts (the 10th, 4th, 7th, and 9th) had made decisions upholding the freedom to marry.4 This changed in November 2014 when the Sixth Circuit reversed six pro- same-sex marriage lower court rulings. Members of the movement were shocked, vowing to bring the decision to the Supreme Court.

In January of 2015, the US Supreme Court decided to review these cases (shortened to Obergefell v. Hodges for ease of speech) to determine whether the ruling by the Sixth Circuit was constitutional.4 In April of 2015, huge crowds gathered in Washington DC to show their support for same-sex marriage as the US Supreme Court heard arguments on the freedom to marry in Kentucky, Tennessee, Ohio, and Michigan.

According to a Williams Institute poll (released in April 2015), there is a correlation between the legal freedom to marry and the increase of support for same-sex couples to marry.4 That is, more people begin to support gay marriage as bans upon it are lifted by states all over the country. This statistic boded extremely well for supporters of same-sex marriage eagerly awaiting the ruling by the Supreme Court.

Finally, on June 26, 2015, the United States Supreme Court passed down its decision to rule in favor of the right to marry, officially striking down DOMA and the marriage bans in the remaining 13 states.6 The landmark decision was greeted by crowds outside the Supreme Court celebrating the long-awaited decision, a sentiment which was echoed all over the country.

The ruling of the Supreme Court was decided by a 5-4 vote, with justices Sotomayor, Kagan, Ginsburg, Breyer, and Kennedy in the majority, and justices Roberts, Scalia, Alito, and Thomas dissenting.7 In the majority opinion, Justice Kennedy wrote:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”7

Around the Globe

Currently, same-sex marriage is legal in 23 countries. These countries include: Argentina, Australia, Belgium, Brazil, Canada, Denmark, United Kingdom, Finland, France, Greenland, Iceland, Ireland, Luxembourg, the Netherlands, New Zealand, Norway, Portugal, Scotland, South Africa, Spain, Sweden, the United States, and Uruguay.5 Some states in Mexico have approved same-sex marriage. Slovenians are currently waiting for their president’s signature on a same-sex marriage bill by Parliament.3 In Colombia, same-sex couples will soon be able to register (albeit through a complicated process) their unions in court.3



1. Benedetti, Ana. "DOMA Ruling Helps Undocumented Immigrants As Immigration Benefits Are Extended To Same-Sex Couples." The Huffington Post., 02 July 2013. Web. 10 Oct. 2013.

2. Dolan, Maura, and Jessica Garrison. "Prop. 8 Supporters, Opponents Await Supreme Court Decision." Los Angeles Times. Los Angeles Times, 29 Nov. 2012. Web. 09 Oct. 2013.

3. "Gay Marriage Around the World." Pew Research Centers Religion Public Life Project RSS. Pew Research Center, 25 June 2015. Web. 18 Oct. 2015.

4. "History and Timeline of the Freedom to Marry in the United States." Freedom to Marry. Freedom to Marry, 26 June 2015. Web. 18 Oct. 2015.

5. "International." Freedom to Marry. Freedom to Marry, 26 June 2015. Web. 18 Oct. 2015.

6. Liptak, Adam. "Supreme Court Ruling Makes Same-Sex Marriage a Right Nationwide." The New York Times. The New York Times, 26 June 2015. Web. 18 Oct. 2015.

7. Obergefell v. Hodges, No. 14-556, slip op. at 28 (U.S. June 26, 2015)

8. Reilly, Ryan J. "Supreme Court DOMA Decision Rules Federal Same-Sex Marriage Ban Unconstitutional." The Huffington Post., 26 June 2013. Web. 10 Oct. 2013.

9. Sacks, Mike. "Supreme Court Rules On Prop 8, Lets Gay Marriage Resume In California." The Huffington Post., 26 June 2013. Web. 09 Oct. 2013.

10. Savage, David G. "Gay Marriage Ruling: Supreme Court Finds DOMA Unconstitutional." Los Angeles Times. Los Angeles Times, 26 June 2013. Web. 10 Oct. 2013.

Last Updated 18 October 2015.