Marriage is typically depicted as a union between a man and a woman. As mentioned in the earlier section on formal marriage, the original view of marriage was a basis for reproduction—to provide a stable setting for child rearing. Given this mandate, there was no reason to extend marriage to same sex couples.

Example: Jack and John wish to get married. They know they will not have children, but wish to adopt a child as a “married couple.” They go to the clerk’s office and are denied a marriage license. They sue, asserting their fundamental right to marry is being infringed upon. The court will deny their marriage license because marriage is defined as between a woman and a man, and here both are men. The court held there was no violation of the Equal Protection Clause because homosexuals have no fundamental right to marriage; there is no invidious sex discrimination is this situation. See, e.g., Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971); see also Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973) (two women denied a marriage license).

It is difficult to talk about the subject of same-sex marriage without making reference to the U.S. Constitution. In particular, as discussed in the introductory chapter, states have a right to regulate marriage. Yet, the Equal Protection Clause of the U.S. Constitution has been used to strike down various state laws that discriminated on the basis of sexual orientation. See, e.g., Lawrence v. Texas, 123 S. Ct. 2472 (2003) (striking down ban on homosexual relations).

A state may prohibit same sex marriages because marriage is a civil relationship between a man and a woman; same sex marriages are outside the definition. As such, a ban on same-sex marriages does not constitute gender discrimination. See, e.g., Singer v. Hara, 522 P.2d 1187 (Wash. 1974).

Despite this traditional view of marriage, changes have been made in some jurisdictions to legalize marriage between members of the same sex.

Hawaii Recognizes Same-sex Marriage

Hawaii was in the forefront of this movement. Under Hawaii’s Constitution, “no person shall be denied equal protection of the laws or the enjoyment of civil rights based on religion, sex, ancestry or race.” This is a more expansive guarantee than contained in the Federal Constitution. Given this higher level of protection, any statute that seemingly discriminates on the basis of sex must pass a strict scrutiny test (the highest of the three levels of scrutiny for statutes under the Constitution). As such, a Hawaii statute banning same-sex marriages is presumed unconstitutional unless the state can show the sex-based classification is justified by a “compelling state interest” and the statute is “narrowly tailored” to avoid unnecessary abridgement of the applicant couple’s constitutional rights. See Baehr v. Lewin 852 P.2d 44 (Haw. 1993).

At the time of writing this courseware, the city of San Francisco is issuing marriage licenses and performing marriage ceremonies for same-sex couples. Even the officials responsible for this action are uncertain as to the long-term validity of this action. In addition, it is unclear whether these marriages would be considered valid outside the city of San Francisco (i.e., in other cities in California). Certainly, in those states that have enacted statutes barring these types of marriages they would be invalid. Furthermore, the Supreme Court of Massachusetts has also upheld the right to same-sex marriage. Yet, that decision is under attack by the legislature; therefore, its status is also in a state of flux. As an alternative, some jurisdictions, such as Vermont, offer a compromise—civil unions. However, these unions do not rise to the same level or status as marriage.

Full Faith and Credit Clause

The topic of same-sex marriage is complicated further by the full faith and credit clause of the U.S. Constitution. In theory, if Hawaii or Massachusetts recognizes same-sex marriage and the couple moves to another state, the new state has a constitutional obligation to also honor that relationship. This is the same recognition extended to either formal or common law married couples who move.

Some jurisdictions have retaliated against progressive judicial decisions allowing same-sex marriage on par with traditional heterosexual marriage, by enacting legislation to explicitly ban same-sex marriage.

Defense of Marriage Act (“DOMA”)

In response to the unprecedented 1993 ruling by the Hawaii Supreme Court (See, e.g., Baehr v. Lewin 852 P.2d 44 (Haw. 1993)), and the failure of the Hawaii Legislature in 1996 to pass a proposed State Constitutional Amendment to overrule that Court, the U.S. Congress, concerned that the entire country, including the Federal government, could find itself in a situation where it would be forced to recognize same-sex “marriages,” enacted the Defense of Marriage Act (“DOMA”).

The Defense(s) of Marriage Act has two sections, one addressing federalism issues pursuant to Art. IV, Sec. 1, the Full Faith and Credit Clause; the other clarifying the intent of Federal law. The section enacted pursuant to Congress’s “effects” power under Art. IV, Sec. 1, the Full Faith and Credit clause, reaffirms the power of the States to make their own decisions about marriage:

.... No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession or tribe, respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state, territory, possession or tribe, or a right or claim arising from such relationship. Pub. L. 104-99 sec. 2, 100 Stat. 2419 (Sep. 21, 1996) codified at 28 U.S.C. § 1738C (1997).

The Federal law section states that under Federal law, a legally recognized marriage requires a man and woman. This is something Congress had assumed, but had never needed to clarify:

.... In determining the meaning of any Act of Congress, or for any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. Pub. L. 104-199, sec. 1, 100 Stat. 2419 (Sep. 21 1996).

About half the states have enacted their own legislation to specifically deny legal recognition to same sex marriages solemnized in other states. In addition, states can rely on the DOMA, which provides that no state shall be required to give any public act, record, judicial proceeding of any other state respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state. Under DOMA, marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex.

On the other hand, a marriage between a male and a postoperative transsexual, who surgically changed his external sexual anatomy from male to female, has been upheld.

Example: Ella, formerly Elton, wishes to obtain a marriage license to marry Daniel. Ella will not be denied a marriage license because she underwent a successful sex change operation prior to marriage. Public policy will not prevent this marriage from being valid. The court stated: “If such sex reassignment surgery is successful and the postoperative transsexual is, by virtue of medical treatment, thereby possessed of the full capacity to function sexually as a male or female, as the case may be, we perceive no legal barrier, cognizable social taboo, or reason grounded in public policy to prevent that person’s identification at least for purposes of marriage to the sex finally indicated.” See M.T. v. J.T., 355 A.2d 204 (N.J. 1976).