The History of State by State Moves to Ban and/or Legalize Same-Sex Marriage

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A History of State Bans and Legalization

History of Bans

So when did the states begin actively either banning or allowing same-sex marriage by defining marriage in a sense that excludes same-sex couples?  Well, the effort to ban same-sex marriage did not actually begin in Alaska or Hawaii.  In 1998, Alaska and Hawaii became the first states to amend their state Constitutions to ban same-sex marriage.  However, nearly several decades prior, states began banning same-sex marriage by way of a state law/statute, a bill passed by the state legislature and signed into law by the Governor.  The first state to do so was Maryland in the 1970's. By the mid 1990's nearly every state in the U.S. had a statutory ban on same-sex marriage.  Amending the State Constitution creates a ban that is a bit more permanent.  A state law can be overturned by the state's own court system as a violation of the state's constitution.  Therefore, to prevent that, some states, such as Alaska and Hawaii, began changing the state constitution by adding amendments that defined marriage as between only one man and one woman and prohibiting state recognition of same-sex marriages done in other states.  Since the ban is written into the state constitution it is automatically "constitutional".  What you are seeing today is the federal court system assessing whether or not the same-sex marriage bans, whether banned by state law or state constitution, violate the United State Constitution, which is supreme over state laws and state constitutions.  Alaska's amendment was just recently ruled as a violation of the U.S. Constitution (October 2014.  For an understanding of national supremacy on this issue see the previous post "Will the Supreme Court Take on Same-Sex Marriage...?".  Other states followed Alaska and Hawaii in amending their state constitutions.  By 2012, well over half of the states banned same-sex marriage in this manner.  This includes Georgia. In voting on a ballot measure in Georgia in the 2004 General Election, 76% of Georgia voters indicated their consent to amending the state constitution, a process requiring voter approval, "so as to provide that this state shall recognize as marriage only the union of man and woman".  Georgia's Constitution as a result of this 2004 ballot measure, now states that:

(a) This state shall recognize as marriage only the union of man and woman. Marriages between persons of the same sex are prohibited in this state. 

(b) No union between persons of the same sex shall be recognized by this state as entitled to the benefits of marriage. This state shall not give effect to any public act, record, or judicial proceeding of any other state or jurisdiction respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state or jurisdiction. 

History of Legalization of Same-Sex Marriage

Beginning 2003, some state supreme courts begin legalizing same-sex marriage by overturning state statutory bans.  

2003: Massachusetts, begins issuing licenses in 2004

2006: New Jersey

2008: California, Connecticut

2009: Iowa

Beginning in 2009, some state legislatures and governors passed and signed bills into state law that legalized same-sex marriages and allowed for state recognition of same-sex marriages done elsewhere.

2009: Vermont, New Hampshire, D.C. (by mayor)

2011: New York

After 2011, more states see voters approving same-sex marriage through the referendum process, similar to how some states, including Georgia as mentioned above, banned same-sex marriage.  Opponents of same-sex marriage in these states that had state laws overturned or had new state laws passed to allow for same-sex marriage sought to join other states in making bans more permanent by advocating for state constitutional amendments that would ban same-sex marriage.  This is the process that played out in California in 2008.  In 2008, after a California state court overturned that state's law banning same-sex marriage, same-sex marriage opponents put the now infamous Proposition 8, similar to that of Georgia's in 2004, on the ballot allowing California voters to approve an amendment banning same-sex marriage in the California state constitution.  California voters supporting the proposed amendment accounted for about 52% of the vote which was a victory for the opponents of same-sex marriage.  Supporters of same-sex marriage in California then took a suit to the federal district court and have since won that suit, as has happened in so many other states in recent years.  California now allows same-sex marriage. 

As of today and partially as a result of the recent federal court rulings overturning state bans, 27 states now allow same-sex marriage.  This number has increased substantially in just a few years.  In 2013, only 13 states allowed same-sex marriage; and just last summer, only 19 allowed it.  The increase to 27 in such a short amount of time has been a substantial victory for the LGBT community despite their possible dismay at the Supreme Court's refusal to take up the issue which would have set the standard for all 50 states.  The National Conference of State Legislatures offers an updated map of which states allow same-sex marriage and which states do not:

However, use web links by CNN (CNN interactive same-sex marriage status) and the National Conference of State Legislatures (NCSL Defining Marriage) to stay up to date on which states allow same-sex marriage and which states do not allow it since this issue is developing rapidly.  The CNN interactive indicates the path for legalization in that state, for example, recent court rulings, although the map does not yet include the change in Alaska.  For more information on this topic, look out for an upcoming post on public opinion concerning same-sex marriage and broader questions concerning homosexuality in public opinion.

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The State by State March of Same-Sex Marriage Continues: Why Did the U.S. Supreme Court Deny Hearing Same-Sex Marriage?

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We are beginning the week with yet another lower federal court ruling concerning same-sex marriage recognition and licensing by a state.  This time it was a federal court in Alaska that overturned that state's legal ban of same-sex marriage first adopted, along with Hawaii, in 1998.  This week in October, a federal district court in Alaska ruled the state's constitutional denial of same-sex marriage licenses and recognition a violation of the due process and equal protection clauses of the U.S. Constitution.  The 14th Amendment of the U.S. Constitution contains these clauses that are directed towards the states and goes as follows:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Why did the U.S. Supreme Court Deny Hearing Same-Sex Marriage?

All of the federal court rulings of the last year have been from the lower federal courts, the U.S. District courts and the U.S. Courts of Appeal.  Why, though, did the Supreme Court announce last week that it would NOT hear any of these cases from the lower U.S. appellate courts?  The answer is simple.  One factor in the court's decision to take up a case or issue is whether or not there are conflicting rulings at the lower level that would necessitate clarification and the handing down of a clear national standard by the Supreme Court.  In the case of lower federal court decisions on state bans of same-sex marriage, there appears to be no need for clarification from the highest court because the rulings of the lower courts do not conflict.  As of this week, 23 federal district courts, the lowest level of federal courts, have heard same-sex marriage suits.  Of those 22, including Alaska as of this week, have overturned the bans as unconstitutional denials of the 14th Amendment guarantees listed above.  Some of those cases have been appealed to the U.S. Court of Appeals in various circuits and in every circuit court ruling we have had thus far, the court has upheld the rulings of the lower courts that the bans are indeed unconstitutional.  Therefore, there appears to be a great deal of consistency in the rulings of the federal courts as to whether or not the state bans, whether banning by state law or state constitution, are violations of the U.S. Constitution.  The overwhelming answer has been "yes".  When there is consistency there may be little need for the Supreme Court to step in.

What Happens Now?

Since the U.S. Supreme Court declined to hear appeals concerning state bans from the lower circuit courts, we are left with the status quo, which means the justices have left the matter of same-sex marriage to be determined by the states, or as we are seeing, by the lower federal courts to determine the constitutionality of state same-sex marriage bans. As of this week, the trend lines are looking pretty good for advocates of same-sex marriage rights.  Therefore, I cannot imagine that the Supreme Court will take up a same-sex marriage suit in the near future unless we start seeing U.S. appellate courts of various circuits issuing different rulings than we have seen thus far.  For more information, including graphics on the federal court system and the legal progression of same-sex marriage suits, see the previous post "Will the Supreme Court Take on Same-Sex Marriage...?".

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