Same-Sex Marriage in the United States

Sáez, Macarena

doi:10.1007/978-94-017-9774-0_4

Macarena Sáez⁴

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 42))

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Abstract

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.

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Notes

1.
Aristotle “The Politics of Aristotle, trans. into English with introduction, marginal analysis, essays, notes and indices by B. Jowett. Oxford, Clarendon Press, 1885. 2 vols, Book 1, 3.
2.
Ibid.
3.
Ibid.
4.
Cicero, De Oficiis, Book I, 57 (Walter Miller trans., 1913).
5.
Robert Filmer, Patriarcha and Other Political Works, Introduction by Peter Laslett 24 (2009).
6.
Ibid., p. 27.
7.
Nancy Cott, Public Vows: A History of Marriage and the Nation, 10, (2002); Sara Barringer Gordon, The Mormon question: polygamy and constitutional conflict in nineteenth-century America 222 (2002).
8.
Id. at 9.
9.
Id. at 10.
10.
Ibid.
11.
The Personal Responsibility and Work Opportunity Reform Act (PRWORA) Pub. L. No 104–193 includes several provisions to promote marriage.
12.
Undocumented immigration is a serious issue in the United States. “Estimates based on the March Supplement of the U.S. Census Bureau’s Current Population Survey (CPS) indicate that the unauthorized resident alien population rose from 3.2 million in 1986 to 12.4 million in 2007, before leveling off at 11.1 million in 2011.” Ruth Ellen Wasem, U.S. Immigration Policy: Chart Book of Key Trends, Congressional Research Service, Report for Congress R42988, March 7, 2013. Among the several problems that undocumented immigration creates, what to do with children who came to the U.S. at young age with undocumented parents and have lived most of their lives here is highly controversial. A possible solution has been the passing of the DREAM Act (acronym for Development, Relief, and Education for Alien Minors) but several forms of this bill have been in Congress since 2001. On June 15, 2012 President Barak Obama’s administration issued a memorandum known as the Deferred Action for Childhood Arrivals (DACA). “Individuals who demonstrate that they meet the guidelines below may request consideration of deferred action for childhood arrivals (DACA) for a period of 2 years, subject to renewal for a period of 2 years, and may be eligible for employment authorization.” U.S. Citizens and Immigration Services, Consideration of Deferred Action for Childhood Arrivals Process, Frequently Asked Questions List at http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions#what is DACA. For information on the DREAM Act see Mariela Olivares, Renewing the Dream: Dream Act Redux and Immigration Reform, 16 Harv. Latino L. Rev. 79, (2013).
13.
Benefits in these systems vary greatly. For example, in Lewis v. Harris the Supreme Court of New Jersey decided that same-sex couples had a right to enjoy the same rights and benefits of different-sex couples under civil marriage in New Jersey. See Lewis v. Harris, 188 N.J. 415, 908 A.2d 196 (2006). The New Jersey Legislature enacted the Civil Union Act creating a parallel system of civil unions for same-sex couples. Same-sex couples in civil unions were entitled to all of the rights, benefits, and responsibilities of marriage. See N.J.S.A. 37:1–33. A more limited system was enacted in Wisconsin, where in 2009 the Wisconsin legislature created a domestic partnership for same-sex couples that would allow them to access to limited benefits such as the right to make decisions on behalf of the ill partner, visit partners in hospitals, insurance benefits, among others. See, Wisconsin Legislative Reference Bureau, Domestic Partnership, Budget Brief 09–2, September 2009.
14.
Office Of Immigration Statistics, 2010 Yearbook Of Immigration Statistics 19 tbl. 6, (2011).
15.
Ibid.
16.
For an account on the restrictions imposed by US immigration laws on interracial marriages between a white American citizen and a non-white foreigner until the 1960s, see Rose Cuison Villazor, The Other Loving: Uncovering the Federal Government’s Racial Regulation on Marriage, 86 NYU L. Rev. 1361–1439 (2011).
17.
In the United States marriage is a fundamental right within the right to privacy protected by the 14^th and 5^th amendments of the U.S. Constitution. Although several decisions pointed into this direction, the 1978 U.S. Supreme Court decision Zablocki v. Redhail leaves no doubt that marriage is a fundamental right: “[I]t would make little sense to recognize a right to privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society…” Zablocki v. Redhail, 434 U.S. 374 (1978).
18.
According to the Pew Research Center, in 2011 only 51 % of Americans 18 years and older were married, compared to 72 % in 1960. See Richard Fry, “No Reversal in Decline of Marriage,” Pew Research Social & Demographic Trends, November 20, 2012 at http://www.pewsocialtrends.org/2012/11/20/no-reversal-in-decline-of-marriage/ and D’vera Cohn, Jeffrey S. Passel, Wendy Wang And Gretchen Livingston, “Barely Half of U.S. Adults Are Married – A Record Low,” Pew Research Social & Demographic Trends, December 14, 2011 at http://www.pewsocialtrends.org/2011/12/14/barely-half-of-u-s-adults-are-married-a-record-low/
19.
See Zablocki, supra note 17.
20.
The U.S. Supreme Court has said that “[m]arriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. Loving v. Virginia 388 U.S. 1, 87 S.Ct. 1824 (1967).
21.
See Pew Research Social & Demographic Trends, supra, note 18.
22.
Linda Kelly, Marriage for Sale: The Mail-Order Bride Industry and the Changing Value of Marriage, 5 J. Gender Race & Just. 175 (2001).
23.
Aubry Holland, The Modern Family Unit: Toward A More Inclusive Vision of the Family in Immigration Law, 96 Cal. L. Rev. 1049, 1059 (2008).
24.
Scholarly literature on same-sex marriage was almost nonexistent until the 1980s. A limited search in the United States Library of Congress catalog showed 13 books with the word “same-sex marriage” in the title between 1900 and 1989, 42 between 1990 and 1999 and 450 since the year 2000. The Worldcat database showed 5 entries between 1900 and 1989 that contain “same-sex” in the title, and the word “marriage” as a subject when searching for books in English, excluding juvenile and fiction categories. The same search showed 160 hits from 1990 to 2000, and 974 from 2001 to 2013.
25.
Prior to the decisions from the U.S. Supreme Court Perry and Windsor, same-sex marriage had been gained by court decisions in the states of Massachusetts, Connecticut, Iowa, California, New Mexico, and New Jersey.
26.
New Hampshire, Vermont, New York, Maine, Maryland, Washington, Rhode Island, Delaware, Minnesota, Hawaii, Illinois, and the District of Columbia.
27.
Hollingsworth v. Perry, 133 S. Ct. 2652, 186 L. Ed. 2d 768 (U.S. 2013).
28.
United States v. Windsor, 133 S. Ct. 2675, 2682, 186 L. Ed. 2d 808 (2013).
29.
The U.S. Supreme Court decided that the official sponsors of the California ballot initiative “Proposition 8” did not have standing to challenge the decision of the District Court that had declared Proposition 8 unconstitutional. Proposition 8 had limited marriage to the union of one man and one woman. Perry made the District Court decision final, allowing same-sex marriage in California.
30.
The Supreme Court decided in January of 2015 to hear four new cases on same-sex marriage in 2015.
31.
Baskin v. Bogan (7th Cir. Sep. 4, 2014); Kitchen v. Herbert, 755 F.3d 1193, 1201 (10th Cir. 2014); Bishop v. Smith, 760 F.3d 1070, 1074 (10th Cir. 2014); Bostic v. Schaefer, 760 F.3d 352, 368 (4th Cir. 2014); Wolf v. Walker, 986 F. Supp. 2d 982, 988 (W.D. Wis. 2014), judgment entered (June 13, 2014), aff’d sub nom. Baskin v. Bogan, 14–2386, 2014 WL 4359059 (7th Cir. Sept. 4, 2014).
32.
Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 948 (Mass. 2003), Kerrigan v. Comm’r of Pub. Health, 289 Conn. 135, 156–57, 957 A.2d 407, 420–21 (2008), Varnum v. Brien, 763 N.W.2d 862, 882 (Iowa 2009), and Griego v. Oliver, 2014-NMSC-003, 316 P.3d 865.
33.
W.Va. State Bd. Of Educ. v. Barnette, 319 US 624, 638.
34.
Brown v. Board of Education, 347 U.S. 483 (1954).
35.
For an account of the immediate backlash of Brown v. Board of Education see Waldo E. Martin Jr., Brown v. Board of Education: A Brief History with Documents 199–222 (1998); For examples of opposition to Loving v. Virginia see Peggy Pascoe, What comes naturally: Miscegenation law and the making of race in America 287 (2009).
36.
Hernandez v. Robles, 7 N.Y.3d 338, 356, 855 N.E.2d 1, 5 (2006).
37.
Assem. 8354, 2011 Leg., 234th Reg. Sess. (N.Y. 2011), in Bill Jacket, L. 2011 c. 95.
38.
Lewis v. Harris, supra note 13, 200 (2006).
39.
N.J. Stat. Ann. § 37:1–28 (West).
40.
Ibid.
41.
Garden State Equality et al. v. Dow et al., 434 N.J.Super. 163 (2013). See below Sect. 4.2.2.
42.
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).
43.
Ibid.
44.
“The legislature shall have the power to reserve marriage to opposite-sex couples.” Haw. Const. art. 1, § 23 (ratified Nov. 3, 1998).
45.
In Minister of Home Affairs and Another v. Fourie and another the South African Constitutional Court mandated the legislature to provide a scheme of protection to same-sex couples similar to the one already afforded to opposite-sex couples. The result was the Civil Union Act of 2006, which allows same-sex marriage, as well as opposite sex marriage, with the same rights and protections afforded to individuals of opposite sex marrying under the Marriage Act of 1961. Minister of Home Affairs and Another v. Fourie and another [CC] [Constitutional Court] (CCT 60/04) [2005] ZACC 19; 2006 (3) BCRL 355(CC); 2006(1) SA524(CC) (1 December 2005) (S. Afr.). See Civil Union Act, 2006, Government Gazzette, Republic of South Africa, Vol. 497 Cape Town 17 November 2006.
46.
For a thorough account of Colombia’s situation with same-sex marriage, see Chap. 5 of this book.
47.
Lockyer v. City & Cnty. of San Francisco, S122923, 2004 WL 473257 (Cal. Mar. 11, 2004).
48.
Lockyer v. City & Cnty. of San Francisco, 33 Cal. 4th 1055, 1069, 95 P.3d 459, 464 (2004).
49.
Ibid.
50.
In re Marriage Cases, 43 Cal. 4th 757, 779–80, 183 P.3d 384, 398 (2008).
51.
Ibid., pp. 433–434.
52.
California, General Election, Tuesday November 8, 2008, Official Voter Information Guide. Arguments in Favor of Proposition 8. Available at http://voterguide.sos.ca.gov/past/2008/general/argu-rebut/argu-rebutt8.htm
53.
Attorney General’s Response to Amicus Curiae Briefs, January 21, 2009, p. 4.
54.
Strauss v. Horton, 46 Cal. 4th 364, 411, 207 P.3d 48, 77 (2009).
55.
Ibid.
56.
For a thorough account on the legal strategies behind California’s same-sex marriage litigation see Scott L. Cummings & Douglas NeJaime, Lawyering for Marriage Equality, 57 UCLA L. Rev. 1235, 1330 (2010).
57.
Perry supra note 27 at 2668.
58.
Brief for Petitioners at 8, Hollingsworth et al. v. Perry 570 US–(2013) (No. 12–144).
59.
Defense of Marriage Act, Section 3.
60.
For an analysis of the Supreme Court reasoning on both Perry and Windsor cases on the issue of standing see Ryan W. Scott, Standing to Appeal and Executive Non-Defense of Federal Law After the Marriage Cases, 89 Ind. L.J. 67 (2014).
61.
Windsor supra, note 28, p. 2691.
62.
Ibid.
63.
Ibid., p. 2692.
64.
Stu Woolman, The Architecture of Dignity, in The Dignity Jurisprudence of the Constitutional Court of South Africa: Cases and Materials 76 (Drucilla Cornell et al. eds., 2013).
65.
Fourie, supra note 45.
66.
Acción de inconstitucionalidad 2/2010, Pleno de la Suprema Corte de Justicia [SCJN] [Supreme Court], Novena Época, 10 de Agosto de 2010, Par. 275 (Mex.)
67.
Ibid.
68.
Neomi Rao, On the Use and Abuse of Dignity in Constitutional Law, 14 Colum. J. Eur. L. 238 (2008); Erin Daly, Human Dignity in the Roberts Court: A Story of Inchoate Institutions, Autonomous Individuals, and the Reluctant Recognition of A Right, 37 Ohio N.U. L. Rev. 381 (2011).
69.
See Goodridge v. Dep’t of Pub. Health, supra note 32, at 312, 313, 337,392, and 395.
70.
“The designation of ‘marriage’ is the status that we recognize. It is the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered into it.” Perry v. Brown, 671 F.3d 1052, 1079 (9th Cir. 2012) vacated and remanded sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652, 186 L. Ed. 2d 768 (U.S. 2013).
71.
Lawrence v. Texas 539 U.S. 571 (2003).
72.
Windsor, supra note 28, p. 2692. Emphasis added.
73.
Ibid., p. 2689. Emphasis added.
74.
Ibid., p. 2692. Emphasis added.
75.
Ibid., p. 2694. Emphasis added.
76.
For an account of the role of the Stonewall riots in the rise of the LGBT movement see David Carter, Stonewall: The Riots that Sparked the Gay Revolution, New York, 2010.
77.
The plaintiff in Bowers v. Hardwick, the case in which the Supreme Court upheld the constitutionality of anti sodomy statutes, was a gay man who was arrested by a police officer who entered into Hardwick’s apartment and found him engaged in consensual oral sex with another male. Bowers v. Hardwick, 478 U.S. 186 (1986). In Lawrence v. Texas the Supreme Court overturned Bowers. The plaintiff was also a gay man who had been arrested by a police officer who entered Lawrence’s bedroom and saw him engaged in consensual oral sex with another man. Lawrence v Texas, supra note 71 at 558.
78.
Time, Edith and Thea: A Love Story, December 20, 2013.
79.
For an accurate account of same-sex marriage litigation in the United States, see Freedom to Marry’s website at www.freedomtomarry.org/litigation
80.
Id.
81.
In New Jersey, Garden State Equality et al. v. Dow et al., supra note 41; in New Mexico, Griego v. Oliver, supra note 32, 865; in Oregon, Geiger v. Kitzhaber, 6:13-CV-01834-MC, 2014 WL 2054264 (D. Or. 2014); in Pennsylvania, Whitewood v. Wolf, 1:13-CV-1861, 2014 WL 2058105 (M.D. Pa. 2014); in Illinois the legislature had already passed a marriage equality statute that had deferred its implementation to June 2014. A court decision ordered the immediate implementation of the statute. Lee v. Orr, Dist. Court, ND, Illinois 2014.
82.
DeBoer v. Snyder, Civil Action No. 12-CV-10285.
83.
DeBoer, Id.
84.
Ibid.
85.
Chris Jenkins, Ban on Same-sex Unions Added to Virginia Constitution, The Washington Post, Nov. 8, 2006.
86.
Bostic v. Rainey, Case 2:13-cv-00395-AWA-LRL.
87.
State of Hawaii, Office of the Attorney General, October 14, 2013, Op. No 13–1.
88.
Hawaii State Legislature, Senate Bill 1 (SB1).
Available at http://www.capitol.hawaii.gov/splsession2013b/SB1_HD1_.pdf
89.
Goodridge, supra note 7, 965.
90.
Ibid; In re Marriage Cases supra note 50, 813.

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Sáez, M. (2015). Same-Sex Marriage in the United States. In: Sáez, M. (eds) Same Sex Couples - Comparative Insights on Marriage and Cohabitation. Ius Gentium: Comparative Perspectives on Law and Justice, vol 42. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-9774-0_4

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