The Marriage Equality Struggle: A Selective Chonology

Tomorrow I am leading a discussion at the NYLS Justice Action Center Colloquium on marriage equality and the law.  I prepared the following selective chronology as a handout for the participants, and thought I would share it on-line.



[Note: This chronology is selective]


Before 1993:  All attempts to litigate for same-sex marriage ended in defeat, including summary affirmance by U.S. Supreme Court holding that the issue of same-sex marriage does not present a substantial federal constitutional question in Baker v. Nelson, 409 U.S. 810 (1972).


Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (state ban on same-sex marriage may violate state Equal Rights Amendment banning sex discrimination; remand for trial)


Romer v. Evans, 517 U.S. 620 (1996) (Colorado constitutional provision denying protection against discrimination to “homosexuals” violated 14th Amendment Equal Protection Clause)


Defense of Marriage Act (1996) (No state is required to give “full faith and credit” to same-sex marriages contracted in other states; federal definition of marriage consists solely of union between and man and a woman; federal definition of spouses requires spouses of different sex)


Baehr v. Miike, 1996 WL 694235 (Haw. Cir. Ct., 1st Cir. 1996)(Hawaii’s prohibition against same-sex marriages violates the state constitution’s equal protection clause; state subsequently amended constitution to provide that only legislature can determine whether same-sex couples can marry and this ruling never goes into effect)


Baker v. State of Vermont, 744 A.2d 864 (Vt. 1999) (State constitution’s Equal Benefits Clause requires that same-sex couples receive the same rights and benefits that different-sex couples receive under state law – State enacts Civil Union Law in 2000).


California Proposition 22 (2000) – Initiative statute providing that only the union of one man and one woman would be valid or recognized as a marriage in California


Lawrence v. Texas, 539 U.S. 558 (U.S. 2003) (Texas Homosexual Conduct Law violates due process rights of intimate association of gay people).


California Domestic Partnership Statute amended in 2003 to provide all state law rights and benefits of marriage to registered same-sex domestic partners, effective 1/1/2005


Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. Sup.Ct. 2003) (State ban on same-sex marriage violates state constitution; decision implemented May 17, 2004 – first legal same-sex marriages performed in the United States)


San Francisco – Mayor Gavin Newsom directs city clerk to issue marriage licenses to same-sex couples; subsequent marriages invalidated by California Supreme Court in Lockyer v. City and County of San Francisco, 95 P.3d 459 (Cal. 2004)


Hernandez v. Robles, 7 N.Y.2d 338 (N.Y. 2006) (Ban on same-sex marriage did not violate New York State constitution’s due process or equal protection requirements)


Lewis v. Harris, 188 N.J. 415 (N.J. 2006) (same-sex couples entitled to same rights and benefits as different-sex couples under state constitution, but not right to marry; legislature responded by passing Civil Union Act)


Martinez v. County of Monroe, 850 N.Y.S.2d 740 (4th Dept.), interlocutory appeal denied, 10 N.Y.3d 856 (2008) (under N.Y. marriage recognition doctrine, same-sex marriage contracted in Canada would be recognized in New York as not against public policy).


In re Marriage Cases, 43 Cal.4th 757 (Cal. 2008) (Ban on same-sex marriage violated state constitutional equal protection and due process; sexual orientation is a suspect classification; right of same-sex couples to marry is a fundamental right)


Kerrigan v Commissioner of Public Health, 289 Conn. 135 (2008) (Ban on same-sex marriage violates Connecticut Constitution’s equal protection and due process requirements; subsequently codified by legislature)


California Proposition 8, November 2008 – Only a union of one man and one woman is valid or recognized as a marriage in California by initiative constitutional amendment


Strauss v. Horton, 46 Cal.4th 364 (Cal. 2009) (Proposition 8 was validly enacted to deny label of marriage to same-sex couples, but otherwise does not overrule In re Marriage Cases)


Varnum v Brien, 763 N.W.2d 862 (Iowa 2009) (Ban on same-sex marriage violates Iowa Constitution’s equal protection and due process requirements – first unanimous decision in favor of same-sex marriage)


Vermont, New Hampshire, District of Columbia adopt statutes authorizing same-sex marriage (2009)


Perry v Schwarzenegger, 704 F.Supp.2d 921 (N.D.Cal. 2010) (District court rules Proposition 8 violates 14th Amendment due process and equal protection requirements; decision stayed pending appeal)


New York enacts marriage equality (2011).


Washington, Maine and Maryland enact marriage equality (2012).


Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, 682 F.3d 1 (1st Cir. 2012) (Section 3 of DOMA violates the 5th Amendment’s equal protection requirement)


Windsor v. United States, 699 F.3d 169 (2nd Cir. 2012) (Section 3 of DOMA violates the 5th Amendment’s equal protection requirement)


Perry v. Brown, 671 F.3d 1052 (9th Cir.), rehearing en banc denied, 681 F.3d 1065 (2012) (Proposition 8 violates 14th Amendment by withdrawing right to marriage without rational basis).


Rhode Island, Delaware, Minnesota enact marriage equality (2013).


Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (Proposition 8 proponents lacked Article III standing to appeal district court’s decision in Perry v. Schwarzenegger; 9th Circuit decision vacated and appeal dismissed; subsequently, California government resumed allowing same-sex couples to marry)


United States v. Windsor, 133 S.Ct. 2675 (2013) (Section 3 of DOMA violates the 5th Amendment by failing to provide “equal liberty” to same-sex couples).


Obergefell v. Kasich, 2013 WL 3814262 (S.D. Ohio, W. Div. 2013) (Ohio’s refusal to recognize same-sex marriage contracted in Maryland violates 14th Amendment equal protection requirement)


Cooper-Harris v. United States, 2013 WL 4607436 (C.D. Cal. 2013) (Veterans Benefits statute premising marriage recognition on place of domicile rather than place of celebration violates 5th Amendment equal protection requirement; Department of Veterans Affairs responded by announcing it would adopt place of celebration rule to determine whether a veteran was married)


Garden State Equality v. Dow, 2013 WL 5687193 (N.J. 2013) (denying stay pending appeal of trial court’s Order that same-sex couples be allowed to marry in New Jersey beginning October 21, 2013, upon finding that Civil Union Act fails to provide equal rights and benefits for same-sex couples as required under N.J. Constitution as construed in Lewis v. Harris; state withdrew appeal of trial court decision)


As of October 21, 2013: Approximately 1/3 of U.S. population lives in jurisdictions that authorize marriages for same-sex couples


2013: Responding to Windsor, federal government begins to recognize same-sex marriages performed under state law for various federal purposes, including taxation, federal worker benefits, military benefits, veterans benefits, immigration, Family & Medical Leave Act, federal employee benefits regulatory statute


2013: More than thirty new marriage equality or marriage recognition lawsuits were filed in the wake of Windsor and Hollingsworth, and pending second-parent adoption cases in North Carolina and Michigan were expanded to become marriage equality cases; marriage equality initiative process begun in Oregon and Ohio to repeal/replace marriage amendments


2013: Special session of Hawaii legislature called to vote on marriage equality bill; similar bills pending in Illinois and New Jersey may receive votes before the end of 2013


2014: 9th Circuit to hear oral argument in Nevada marriage equality case, Sevcik v. Sandoval, 911 F.Supp.2d 996 (D.Nev. 2012) (holding ban on same-sex marriage did not violate the 14th Amendment).


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