885 Centre Street, Newton, MA 02458

E-mail the Executive Board at:

lambdaexecboard[at]listserv[dot]bc[dot]edu

- American Bar Association

- American Civil Liberties Union

- Association of American Law Schools

- Black Stripe

- Boston Queer Asian Pacific Alliance

- Community United Against Violence

- Deaf Queer Resource Center

- Fenway Community Health Center

- Gay & Lesbian Advocates & Defenders

- Gender Public Advocacy Coalition

- Human Rights Campaign

- International Association of Lesbian & Gay Judges

- International Gay & Lesbian Human Rights Comm.

- International Lesbian & Gay Association

- Lambda Legal Defense & Education Fund

- Massachusetts Chapter of Gender Education & Advocacy

- Massachusetts Lesbian & Gay Bar Association

- National Center for Lesbian Rights

- National Gay & Lesbian Task Force

- National Latina/o LGBT Organization

- National Lesbian & Gay Law Association

- Servicemembers Legal Defense Network

THE HISTORY:

Legal 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 state’s 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. Alaska voters quickly overrode the case by passing a constitutional amendment to the state constitution. In response to the Baehr decision, Congress in 1996 passed and President Clinton signed into law, the federal DOMA. The federal DOMA does not prohibit same-sex marriage. It only says that a state is not required to recognize same-sex marriages from other states and limits, for federal purposes, the definition of marriage to opposite-sex couples.

THE VERMONT CHALLENGE:

In 2001, the Vermont Supreme Court ruled that the state’s 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 Court’s ruling in Goodridge v. Department of Public Health. Prior to the decision’s 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 United States began issuing marriage licenses after the Goodridge decision was handed down in November, 2003. The courts have put a stop to this but litigation is pending in courts around the country to overturn the DOMA laws.

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.

Connecticut followed in April, 2005 by limiting "marriage" to opposite-sex couples but allowed civil unions.

The following table summarizes state marriage and civil union laws throughout the fifty states as of April, 2005.

Same-Sex Marriage	Civil Unions	No Explicit Prohibition	Statutory Ban on Same-Sex Marriage	State Constitutional Ban on Same-Sex Marriage
Massachusetts	Connecticut Vermont	New Jersey New Mexico New York Rhode Island	Alabama Arizona California Colorado Delaware Florida Idaho Illinois Indiana Iowa Kansas Maine Maryland Minnesota New Hampshire North Carolina Pennsylvania South Carolina South Dakota Tennessee Texas Virginia Washington West Virginia Wisconsin (by common law) Wyoming	Alaska Hawaii Missouri Mississippi Montana Nebraska Nevada Oregon
				State Constitutional Ban on Same-Sex Marriage & Civil Unions
				Arkansas Georgia Kentucky Louisiana Michigan North Dakota Ohio Oklahoma Utah

RESOURCES

CASES:

Baehr v. Levin (Hawaii Supreme Court).

Baker v. Nelson (Minnesota Supreme Court).

Goodridge v. Department of Public Health (Mass. Supreme Judicial Court).

Jones v. Hallahan (Kentucky Court of Appeals).

Singer v. Hara (Washington Court of Appeals).

Baker v. State (Vermont Supreme Court decision).

VERMONT CIVIL UNIONS LAW

FEDERAL LAWS:

Proposed Federal Amendment

Defense of Marriage Act

WEB-SITES:

Gay & Lesbian Advocates and Defenders

Human Rights Campaign