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.

2. Case Samples of Gay Marriage Law Tests

Gay and lesbian couples have been testing gay marriage laws world wide for several decades, but it is only now that there appears to be some progress.

In Goodridge et al v. Department of Public Health, a gay rights group in Connecticut fought the Department of Public Health, which supervises the registration of all marriages, and Dorothy C. Bean, the town registrar of vital statistics in Madison, who denied the couple in question marriage licenses. Connecticut's highest court ruled that denying marriage to gay and lesbian couples is against the equality and liberty guarantees of the state Constitution. The Connecticut state government ignored the ruling, so the group had to go back to court.

Cote-Whitacre et al v. Department of Public Health and Johnstone et al v. Reilly fought the denial of marriage to gay and lesbian non-residents in Massachusetts, which groups considered further discrimination against same-sex couples. Thirteen city and town clerks challenged Massachusetts' denial of marriage licenses to non-residents. On March 30, 2006

Supreme Judicial Court

determined that if the law in a couple's home state does not specifically ban same-sex couples marrying, then the issue will go to the state Superior Court.

Court cases are being mounted all the time in countries around the world. Couples who are interested in pursuing the issue legally should contact gay rights groups and research the tactics used in other cases in their country.

3. Freedom of Religion

Gay marriage rights do not affect religion at all. Freedom of religion is guaranteed in most countries. The topic occupies the First Amendment in America's Constitution. In order to guarantee this assurance, countries separate religious matters from the state, meaning that no religion can control a country's law. This is an essential separation as it goes some way to ensure that laws aren't passed with the doctrine of a particular religion in mind.

Although marriage is a religious as well as a legal tradition, the struggle for gay marriage rights is a wholly legal one. What most groups struggle for is in fact for gay couples to access the same benefits and privileges that married heterosexual couples have; this is not necessarily a struggle for marriage, but culture at present still has a prejudice towards marriage as a sign of commitment, so instead of gay couples fighting for the legal rights and then for the social privileges it is a simpler affair to address the discrimination in denying homosexual marriage.

Gay marriage rights will not impugn any individual or organization's freedom of religion. Churches will not be obligated to perform gay marriage ceremonies or welcome gay members, although doing so may have an appearance of discrimination that the churches may feel uncomfortable about.

4. Legal Parallels to the Gay Marriage Issue

The right to marry is one of the things cited as 'essential to the orderly pursuit of happiness by a free people,' a comment which was part of a judicial decision allowing interracial marriage in America in 1967. The struggle for gay marriage rights has parallels to many other struggles for civil rights by non-empowered or minority groups. For hundreds of years, women had no legal rights to property or the vote, and had to struggle for many years before winning either; mixed-race couples were banned from marrying, a struggle that was won only relatively recently; African-American children were not allowed to study in the same schools as white children until a famous bus ride; Australian Aborigines were not allowed to vote until 1970, when their decades-old tent embassy outside the Australian Parliament had an effect.

In most cases where an non-empowered or minority group demanded equal rights to those in power, the same arguments are brought up against it: it is 'unnatural,' 'immoral,' 'irreligious,' bound to destroy society, affects the rights of others and is just a plain bad idea. These arguments have been brought up at different times by all groups against legalizing gay marriage, in an attempt to rationalize a discriminatory point of view. History shows us that these arguments will eventually be overcome.

5. The Defense of Marriage Act

The Defense of Marriage Act was signed into law in 1996, defining for federal purposes that marriage is only applicable to couples comprised of one man and one woman. It is a law that was designed to prevent same sex marriage, but in an odd way the act supports gay marriage.

Some gay rights activists have interpreted the introduction of the law as an action taken out of fear by conservative politicians that same sex marriage may soon be accepted. The law's existence acknowledges that gay marriage exists and that gay marriage may soon be legalized by many individual states. In taking a pre-emptive measure like the Defense of Marriage Act, conservative groups have given the debate a nation-wide platform.

Under the act, the lawful marriages of same-sex couples are excluded from the protection of at least 1,049 federal laws and programs in areas ranging from tax to social security survivor rights to pension protections. Nothing about the act prevents a business or most other people from respecting same sex marriages.

6. Gay Marriage Amendment

The gay marriage amendments brought up in governments around the world are actually proposed amendments to existing marriage laws, specifically defining marriage as an act that can include one man and one woman only. These amendments have been introduced by conservative groups as a measure against gay rights groups using the lack of a definition to prove that judges denying gay couples marriage licenses are discriminatory.

Most countries have introduced gay marriage amendments to existing legislation as a pre-emptive measure against gay marriage, but a side affect of proposing such a measure is it ignites local debate on the issue, sometimes resulting in unexpected outcomes for conservative groups. In the Massachusetts anti-gay marriage amendment proposals were defeated in 1999, 2001, and 2002, before gay marriage was legalized in 2005.

Another form of gay marriage amendment is through a state or country's constitution. In America, this move is a very serious one, as the American Constitution is the foundation for legislation for the whole country. Amending the constitution would essentially close the issue, nullifying state laws and creating a far more difficult obstacle for gay rights groups to overcome.