Can parties of the same sex marry?

In the vast majority of states, parties of the same sex are legally forbidden to marry each other. Many states have a specific law or constitutional amendment proscribing such marriages. However, same-sex persons can marry in the states of Connecticut, Maine, Massachusetts, New Hampshire, Vermont, and Iowa. As of December 2009, the District of Columbia appeared close to allowing such marriages as well.

Same-sex marriages are still prohibited in most U.S. states, with laws sometimes even written into state constitutions to ban gay marriage (iStock.com).

New York recognizes same-sex marriages from other states but does not allow them to be performed within its borders. Several other states—mainly in the northeastern region of the country—permit civil unions between persons of the same sex. In November 2008, Connecticut passed a law allowing civil unions between members of the same sex. In 2009, the Iowa Supreme Court legalized gay marriage. In April 2009, Vermont passed a law legalizing gay marriage. In May 2009, the Maine legislature passed a law allowing gay marriages. In June 2009, the New Hampshire legislature also passed a law allowing such marriages.

The California Supreme Court also legalized gay marriage in 2008, but then the state constitution was amended to prohibit such marriages.

LegalSpeak: Iowa Supreme Court in Varnum v. Brien (2009)

So, today, this court again faces an important issue that hinges on our definition of equal protection. This issue comes to us with the same importance as our landmark cases of the past. The same-sex-marriage debate waged in this case is part of a strong national dialogue centered on a fundamental, deep-seated, traditional institution that has excluded, by state action, a particular class of Iowans. This class of people asks a simple and direct question: How can a state premised on the constitutional principle of equal protection justify exclusion of a class of Iowans from civil marriage? ...

Therefore, with respect to the subject and purposes of Iowa's marriage laws, we find that the plaintiffs are similarly situated compared to heterosexual persons. Plaintiffs are in committed and loving relationships, many raising families, just like heterosexual couples. Moreover, official recognition of their status provides an institutional basis for defining their fundamental relational rights and responsibilities, just as it does for heterosexual couples. Society benefits, for example, from providing same-sex couples a stable framework within which to raise their children and the power to make health care and end-of-life decisions for loved ones, just as it does when that framework is provided for opposite-sex couples.

In short, for purposes of Iowa's marriage laws, which are designed to bring a sense of order to the legal relationships of committed couples and their families in myriad ways, plaintiffs are similarly situated in every important respect, but for their sexual orientation. As indicated above, this distinction cannot defeat the application of equal protection analysis through the application of the similarly situated concept because, under this circular approach, all distinctions would evade equal protection review. Therefore, with respect to the government's purpose of "providing an institutional basis for defining the fundamental relational rights and responsibilities of persons," same-sex couples are similarly situated to opposite-sex couples.

LegalSpeak: California Supreme Court in In Re Marriage Cases (2008)

Further, entry into a formal, officially recognized family relationship provides an individual with the opportunity to become a part of one's partner's family, providing a wider and often critical network of economic and emotional security.... The opportunity of a couple to establish an officially recognized family of their own not only grants access to an extended family but also permits the couple to join the broader family social structure that is a significant feature of community life. Moreover, the opportunity to publicly and officially express one's love for and long-term commitment to another person by establishing a family together with that person also is an important element of self-expression that can give special meaning to one's life. Finally, of course, the ability to have children and raise them with a loved one who can share the joys and challenges of that endeavor is without doubt a most valuable component of ones liberty and personal autonomy..

In light of the fundamental nature of the substantive rights embodied in the right to marry—and their central importance to an individual's opportunity to live a happy, meaningful, and satisfying life as a full member of society the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation.

 
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