Same-Sex Marriage in the United States

© Springer Science+Business Media Dordrecht 2015
Macarena Sáez (ed.)Same Sex Couples – Comparative Insights on Marriage and CohabitationIus Gentium: Comparative Perspectives on Law and Justice4210.1007/978-94-017-9774-0_4

4. Same-Sex Marriage in the United States

Macarena Sáez 

Washington College of Law, American University, Massachusetts Ave. N.W. 4801, Washington, DC, 20016, USA



Macarena Sáez


This Chapter gives a brief analysis of the status of same-sex marriage in the United States prior to the US Supreme Court decisions of 2013 and the status of litigation and political reforms triggered in part by these court decisions. It shows that marriage is a central institution in the country’s rationale of family law in ways that separate it from other western countries that have allowed same-sex marriage.

Same-sex marriageDignityAutonomyEqualityFamily law

4.1 The Value of Marriage

The link between marriage and the family has historical roots. Since Aristotle, political science has linked family and nation building. In his Politics I, Aristotle referred to the family (oikos) as the first relationship to arise between man and woman. He thought that when several families unite aiming at fulfilling not only their daily needs, “the first society to be formed is the village.”1 The Politics follows by saying that “the most natural form of the village appears to be that of a colony from the family…”2 and then states that “When several villages are united in a single complete community, large enough to be nearly or quite self-sufficing, the state comes to existence…”3 they form a village and then a polis. Cicero also made the connection between marriage and government: “[T]he first bond of union is that between husband and wife; the next, that between parents and children; then we find one home, with everything in common. And this is the foundation of civil government, the nursery, as it were, of the state.”4

The English historian Peter Laslett states that “the intellectual tradition of patriarchalism” that placed the family “at the centre of all social institutions” was widespread among sixteen and seventeen century European thinkers.5 For these thinkers the relationship between family and the political state was obvious and the analogies recurrent.6 The war against Mormon polygamy was partly based on a discourse of monogamy as essential to the construction of the United States.7 Nancy Cott argues that the founding fathers had “a political theory of marriage.”8 Influenced by Montesquieu, the founders would have “tied the institution of Christian-modeled monogamy to the kind of polity they envisioned.”9 This thinking propelled the analogy between the two forms of consensual union –marriage and government—into the republican nation’s self-understanding and identity.10

Marriage is linked to family as citizenship has been linked to the state. Cohabitation outside of marriage has been to family what illegal immigration has been to the state. In different periods, countries have been forced to redefine citizenship or include as citizens individuals that originally were not welcomed as such. The same has happened with families; countries have been forced by reality to recognize as family members individuals that were unwelcomed in the acceptable family structure. Recognition of family members outside the realm of marriage has been slow and within a limited scope. In the United States many social welfare benefits are attached to marriage.11 Marriage is still today the equivalent to voting rights for citizenship. Married individuals have access to benefits and special treatment within family law, social welfare policy, immigration law, torts, tax law, among others. Ceteris paribus, unmarried individuals who function as families may not have access to those benefits and special treatment. Unmarried families are to married families what illegal aliens are to citizens. Sometimes states decide to grant limited benefits to illegal aliens or even grant them a window of opportunity to legalize their status, become legal residents and, eventually, citizens.12 Sometimes states decide to grant certain benefits to unmarried couples, and in rare opportunities, grant a group of them full and equal access to marriage. Most of the time, however, states fall short of doing that and create differentiated status, just as citizens and foreign immigrants under a visa or permit may be able to reside in a country and enjoy limited benefits. By the beginning of the 21st century, several states granted same-sex couples limited rights and, in some cases a broad array of rights through registered partnership arrangements.13

The link between marriage and citizenship is not a metaphor. Marriage is treated as an essential gateway to citizenship. Thus, marriage can pave the way to citizenship in a manner that no other relationship between two individuals not connected by blood or adoption can. This may be the strongest signal of differentiation between families that start through marriage and families that start through cohabitation. In 2010, 82,449 individuals obtained legal permanent resident status as spouses of U.S. citizens coming from abroad.14 This is the largest category of new arrivals, followed by parents of U.S. citizens.15 Immigration policies can say a great deal about the types of families a country value and the associations it excludes. Through immigration law, countries can limit those associations that reject.16

The United States has traditionally protected marriage, and in the era of same-sex couples’ recognition, it is still protecting the married family.17 What is changing is the composition of the married couple, but not the composition of the legal family. Despite uncontestable statistics showing that marriage is on decline,18 U.S. courts still value the married family more than any other type of family association. This emphasis on marriage distances the United States from most countries where marriage equality has gained ground. Brazil, Portugal, Mexico, South Africa, Spain, and Canada are only a few of the countries that have accepted same-sex marriage while, at the same time, providing more rights to unmarried families or at least basing their decisions on arguments that reinforce the legal recognition of social constructions of the family.

In the United States, marriage is still treated as the main gateway to family formation, deserving constitutional protection.19 Before recognition of a right to family, comes the recognition of a right to marry. This right is presented to the community as an individual right, but one that makes a community function as such.20 Statistics, however, show that an increasing number of families are formed outside the realm of marriage.21 Many of them repeat the pattern of a sexual family that has replaced the marriage certificate for an informal agreement that resembles marriage in all aspects of familial life, but in the formality of marriage itself. Proof of marriage is, however, simpler than proof of companionship. It only requires applicants to show the actual marriage certificate. Regardless of whether a married couple hates each other, actually supports each other, or does not speak to each other, a marriage certificate will be enough to treat that couple as a family. Despite its procedural benefits, focusing on the formality of marriage as the paramount evidence of family ties is problematic.

In the case of immigration, for example, using a marriage certificate as proof of family tie may allow the entrance of people who did not really have family ties with the sponsor,22 and it may leave out real families with individuals who support and care for each other.23

4.2 A Dialogue Between Politics and Rights

The United States is experiencing a transitioning period on marriage regulation. Same-sex marriage has become a common topic for scholarly discussions,24 a cause for litigation in many states,25 and a source of legislation reform in many others.26 On June 26, 2013 the Supreme Court issued its first two decisions on same-sex marriage. Hollingsworth v. Perry (Perry) 27 and United States v. Windsor (Windsor). 28 In Perry the Supreme Court did not advance any substantive opinions on whether same-sex marriage was constitutionally protected, allowed or prohibited. It did, however, have the effect of allowing same-sex marriage in California.29 The Windsor case was not about legalizing same-sex marriage but about challenging the restriction of marriage as a union between a man and a woman for federal purposes. In this decision the Supreme Court could have refrained from providing arguments in favor or against same-sex marriage. It chose, however, to advance arguments that, while working well in the narrow field of restricting the power of the federal government to define marriage for federal purposes, also paved the way for broader challenges to the constitutionality of same-sex marriage in general.

Perry and Windsor were not about making same-sex marriage available in each of the United States. Both decisions, however, have changed the landscape of same-sex marriage. For the first time in history same-sex marriage is perceived by many as an actual possibility in the foreseeable future of the United States. These decisions were the first but certainly will not be the last on same-sex marriage that the Supreme Court will issue.30 On October 6, 2014, the Supreme Court denied review of five cases, which left as final decisions striking down bans to same-sex marriages in Indiana, Wisconsin, Utah, Oklahoma, and Virginia.31 This decision also opened the door for other states to open same-sex marriage as well.

An important component of the debate on same-sex marriage relates to the proper forum to address marriage and family. Whether same-sex marriage is a matter of rights or of politics defines the proper forum to address the issue. Some courts have denied same-sex marriage not because the institution would be bad for society but because the majorities should decide on this issue. In the United States we find decisions that gave the legislature the role of deciding on same-sex marriage, and courts that considered the issue a matter of rights that was outside the scope of the majorities.32

Over the last century, western societies including the United States, have slowly accepted that citizens cannot use their political power to discriminate on the basis of race. Western societies have also accepted, albeit at an even slower pace, that political majorities cannot discriminate on the basis of gender. The same-sex marriage debate shows that sexual orientation is gradually becoming a protected category such as gender and race. As Justice Jackson stated more than 60 years ago:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.33

Not all courts agree that same-sex marriage is one of those “certain subjects” that must be withdrawn from the “vicissitudes of political controversy.” The same-sex marriage debate, therefore, opens a broader debate about the role of courts in deciding issues related to same-sex marriage. If what is at stake is a modification of the concept of marriage, and marriage is an essential democratic concept, then it is a political issue subject to political definitions. The political branches of each nation shape immigration policies. Citizens vote for representatives who will enact statutes that will have an impact on who can be admitted into the country. Congress, as representing the desires of the majority, passes statutes on budget, housing, health, national security, among many other areas. This power, however, is limited by fundamental rights as set in the Constitution of a country/state and international conventions subscribed by a state. Constitutions and international law thus limit the political power of citizens. Once a particular issue is defined as protected or affecting fundamental rights, that issue no longer belongs to the political realm.

In the United States, once the Supreme Court declared racial segregation unconstitutional, it shielded it from the majority’s views.34 Once it decided that marriage was a fundamental right, it reduced the space for political intervention on such right. These decisions provoked political disagreement35 but once claims of substantive due process or equal treatment were set, opposing groups had to accept that they would no longer decide to build a society where children would be divided by race in schools, or that marriage would be limited to people of the same race. These are no longer political decisions because they touch on fundamental rights.

4.2.1 From Courts to Political Processes and Vice Versa

Marriage equality activists have used different strategies to achieve same-sex marriage. For advocates, however, there is no question that marriage equality is a matter of rights. Challenges to marriage statutes, however, have not always triggered a positive outcome because of the position by some courts that same-sex marriage is a matter for legislatures to decide. For example, the New York Court of Appeals stated in 2006 that “the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature.”36 This decision triggered a political process that ended, after much back and forth between the New York State Assembly and the Senate, with the Marriage Equality Act that recognized same-sex marriage and became effective on July 24, 2011.37

Courts, at other times, have recognized that marriage entails rights and benefits that non-married couples may also deserve. These courts have considered, however, that it is the role of legislatures to determine the specific institution or method of distribution of those rights. A decision by the Supreme Court of New Jersey illustrates this rationale:

To comply with this constitutional mandate, the Legislature must either amend the marriage statutes to include same-sex couples or create a parallel statutory structure, which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples. We will not presume that a separate statutory scheme, which uses a title other than marriage, contravenes equal protection principles, so long as the rights and benefits of civil marriage are made equally available to same-sex couples. The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process.38

The New Jersey court gave the legislature six months to enact legislation giving some sort of recognition to same-sex couples. The court did not mandate the legislature to recognize same-sex marriage. It gave the political branch the option of either expanding marriage or creating a different institution that would grant equal benefits and rights to same-sex couples outside the scope of marriage. The legislature took the second option enacting on December of 2006 a Civil Union Act.39 The Bill stated:

It is the intent of the Legislature to comply with the constitutional mandate set forth by the New Jersey Supreme Court in the recent landmark decision of Lewis v. Harris, 188 N.J. 415, (October 25, 2006) wherein the Court held that the equal protection guarantee of Article I, paragraph 1 of the State Constitution was violated by denying rights and benefits to committed same-sex couples which were statutorily given to their heterosexual counterparts. The Court stated that the ‘State can fulfill that constitutional requirement in one of two ways. It can either amend the marriage statutes to include same-sex couples or enact a parallel statutory structure by another name, in which same-sex couples would not only enjoy the rights and benefits, but also bear the burdens and obligations of civil marriage.’…

The Legislature has chosen to establish civil unions by amending the current marriage statute to include same-sex couples.40

New Jersey provided same-sex couples the same rights and obligations afforded to married heterosexual couples but it refused to grant them access to the brand marriage. As shown below, New Jersey’s system did not last that long. After Windsor another decision declared New Jersey’s dual system unconstitutional.41

Hawaii was the first of these “dialogues” going wrong in the United States. In 1993 the Hawaii Supreme Court rejected the claim that the Hawaii constitution provided a fundamental right to same-sex marriage.42 It considered, however, that requiring marriage to be between a man and a woman constituted sex discrimination and remanded the case to a state court to determine whether the state could prove that it had a “compelling” state interest that would overcome such sex discrimination.43 Later, a trial court ruled that the state marriage law was unconstitutional but before a final decision was issued on appeal, Hawaii citizens, through a referendum, amended Hawaii’s constitution, giving the legislature the power to reserve marriage to opposite-sex couples.44 As this Chapter will show later, Windsor contributed—and it still does—to a shift towards same-sex marriage in several states, including Hawaii.

Same-sex marriage creates, therefore, a sort of “dialogue” between courts and legislatures. Outside the United States, the case of South Africa45 and Colombia illustrate the connections and disconnections these dialogues can produce.46

4.2.2 California: From a Mayor’s Decision to a Court’s Decision

The “dialogue” between courts and legislatures comes in part as a reaction of either a court or a legislature to what the other branch has stated. California’s process to same-sex marriage illustrates very well this action-reaction “dialogue” between courts and political processes because it involved not only courts and legislature, but also the citizens of California.

On February 12 of 2004, the Mayor of San Francisco authorized officials of the city and county of San Francisco to issue marriage licenses. In a period of a month, around 4,000 marriage licenses were issued. The weddings stopped on March 11, 2004 when the California Supreme Court issued an interim stay directing officials to stop issuing marriage licenses.47 On August of the same year, the Supreme Court stated that “local executive officials lacked authority to issue marriage licenses to, solemnize marriages of, or register certificates of marriage for same-sex couples.”48 It also stated that “marriages conducted between same-sex couples in violation of the applicable statutes [were] void and of no legal effect.”49

Parallel to the debates on same-sex marriage, California had afforded same-sex couples the same rights and benefits enjoyed by married opposite-sex couples, through a civil partnership regime. In other words, the debate on same-sex marriage was not about legal recognition of same-sex couples, or about accessing benefits or rights afforded to married couples. It was about accessing marriage and its branding:

Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a ‘marriage’ whereas the union of a same-sex couple is officially designated a ‘domestic partnership.’50

The Supreme Court concluded that California’s Constitution guaranteed “the same substantive constitutional rights as opposite-sex couples to choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.”51

After this decision state voters passed a ballot initiative known as Proposition 8 (Prop 8), amending the State Constitution to define marriage as a union between a man and a woman. The proponents of the ballot were not only against same-sex marriage, but against courts being the right forum to decide on the issue. In the voter‘s guide informing citizens on the ballot, proponents of Prop 8 stated that

CALIFORNIANS HAVE NEVER VOTED FOR SAME-SEX MARRIAGE. If gay activists want to legalize gay marriage, they should put it on the ballot. Instead, they have gone behind the backs of voters and convinced four activist judges in San Francisco to redefine marriage for the rest of society. That is the wrong approach.52

Proposition 8 prevailed with the support of 52 % of the votes. Advocates of same-sex marriage challenged the constitutional amendment. The opinion of California’s Attorney General was that the amendment was unconstitutional because it took away a fundamental right that had already been granted to a minority group.53 The “dialogue” between courts and political processes continued with the Supreme Court of California deciding whether the amendment was constitutional or not. In Strauss v. Horton it decided that, precisely because same-sex couples already enjoyed similar rights and benefits afforded to married opposite-sex couples, the amendment was narrow enough to be constitutional.54 The court, however, maintained as valid all marriages celebrated before its decision.55

This back and forth between judicial and political processes, as it is well documented by now, did not end there. Two couples filed suit in federal court and started the litigation that ended in 2013 with the first of the two U.S. Supreme Court decisions issued the same day.56 California’s Attorney General decided not to defend Proposition 8. That left the challenge with plaintiffs and no official defendants. The official proponents of Prop 8 decided to act as defendants, which let the issue of legal standing open. At the end, the U.S. Supreme Court decided Perry on procedural grounds, declaring a lack of standing of a private party to defend the constitutionality of a statute when state officials had chosen not to defend it.57 Defendants of Prop 8 before the U.S. Supreme Court repeated in their brief the argument they had used to justify Proposition 8 in the first place, regarding the right forum to decide issues on same-sex marriage:

Our Constitution does not mandate the traditional gendered definition of marriage, but neither does our Constitution condemn it. This Court, accordingly, should allow the public debate regarding marriage to continue through the democratic process, both in California and throughout the Nation.58

Whether courts or political actors have the final word on same-sex marriage is not yet defined. It is, however, clear, that the practical effects of Perry, and the substantive reasons provided by the U.S. Supreme Court in Windsor have moved same-sex marriage closer to substantive due process or equal protection issues and further away from political processes subject to majoritarian decisions.

4.3 Windsor: The Game Changer

In 1996 the U.S. Congress passed the Defense of Marriage Act (DOMA). Section 3 of the DOMA stated that for federal purposes:

In determining the meaning of any Act of Congress, or of 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.59

Since 2008 the State of New York recognized same-sex marriages legally performed outside the State. Edith Windsor and Thea Spyer lived in New York and married in Ontario, Canada, in 2007. Thea Spyer died in 2009 leaving her entire estate to Edith Windsor. Although her marriage was recognized by the State of New York, Section 3 of DOMA barred her from claiming the federal estate tax exemption for surviving spouses. Edith Windsor brought a refund suit arguing that DOMA violated her equal protection rights. Similarly to the Attorney General of California in the Perry case, the United States Attorney General notified the Speaker of the House of Representatives that the Department of Justice would no longer defend Section 3’s constitutionality.60 A Bipartisan Legal Advisory Group (BLAG) of the House of Representatives voted to intervene in the case defending the constitutionality of Section 3 of DOMA. The District Court permitted the intervention and found Section 3 unconstitutional, ordering the Treasury to refund Ms. Windsor’s tax payments. The Court of Appeal for the Second Circuit affirmed the decision but the United States still did not enforce the judgment. The U.S. Supreme Court granted certiorari.

The decision in Windsor

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