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challenges began in the 1970's with cases like Baker v. Nelson, Jones v. Hallahan, and Singer v. Hara.
These challenges readily failed. The next serious legal challenge came in
1993 when the Hawaii Supreme Court, in Baehr v. Levin,
held that a state ban on same-sex marriage violated the equal protection
clause of the stateís constitution if the state could not show a compelling
state interest. The state was unable to show a compelling interest after the
case was remanded to the trial court level. The trial judge declared the ban
unconstitutional and ordered the state to issue licenses. The order was
stayed pending appeal. During the appeals process, Hawaii voters approved a
state constitutional amendment in 1998, banning same-sex marriage. The Hawaii
Supreme Court dismissed Baehr
as moot. In 1994, a similar case arose in Alaska,
in which a judge held that the ban was unconstitutional on state grounds.
THE VERMONT CHALLENGE:
†††† In 2001, the Vermont Supreme Court ruled that the stateís ban on same-sex marriage violated its state constitution. Rather than order government officials to issue marriage licenses, the court gave the Vermont legislature an opportunity to issue a remedy. The legislature responded by enacting a civil unions statute, giving same-sex couples the same benefits as married couples under state law, but not federal law. The Vermont Supreme Court held that the civil union statute was sufficient for state constitutional requirements. The statute does not require individuals to be residents of Vermont in order to enter into a civil union.
THE MASSACHUSETTS CHALLENGE:
†††† Effective May 17, 2004, same-sex couples in Massachusetts were permitted to marry pursuant to the Supreme Judicial Courtís ruling in Goodridge v. Department of Public Health. Prior to the decisionís effective date, the Massachusetts Senate and House met in a constitutional convention to consider overruling the Goodridge decision with an amendment to the state constitution. An amendment passed, 105-92 permitting civil unions for same-sex couples, but not civil marriage. Before the amendment is effective however, the Senate and House must convene again in the 2005 legislative session and approve the amendment by a majority vote. The amendment must then be ratified by the voters on the following state-wide ballot. The earliest an anti-marriage amendment could be voted upon is 2006.
†††† In an effort to prevent same-sex marriages, Massachusetts Governor Mitt Romney invoked a seldom-used 1913 law barring out-of-state couples from receiving marriage licenses. The 1913 law was originally intended to restrict interracial marriages.
THE GOODRIDGE BACKLASH
†††† In order to circumvent the courts from invalidating the state or federal DOMA laws under the federal constitution, Congress† considered a federal constitutional amendment to limit civil marriage to opposite-sex couples. In 2004, the U.S. Senate debated the amendment but could not move forward on a vote.† The House of Representatives failed to pass the amendment by the required two-thirds vote.
Several city and town clerks around the
†††† The backlash against the Goodridge decision was more successful however, when voters in eleven states passed constitutional amendments banning same-sex marriage on ballot measures in the November, 2004 elections.
†††† The following table summarizes state marriage and civil union laws throughout the fifty states as of April, 2005.
Baehr v. Levin (
Baker v. Nelson (
Goodridge v. Department of
Public Health (
Jones v. Hallahan (
Singer v. Hara (
Baker v. State (