The Struggle for Same-Sex Marriage – A Chronology of Landmark Developments

Yesterday I conducted a faculty workshop at New York Law School on the current status of the struggle for marriage equality in the U.S. To prepare for the workshop and to provide a useful handout for the participants, I spent a few hours putting together a chronology of landmark developments, beginning with the Supreme Court’s statement in 1972 in Baker v. Nelson that a constitutional claim for same-sex marriage did not present a “substantial federal question,” and concluding (for now) with a list of the marriage equality cases now pending in the U.S. Courts of Appeals. Along the way, the chronology notes the years in which particular states became marriage equality jurisdictions, and most of the litigation landmarks as well. I am copying the chronology here for the convenience of readers of my blog who are interested in the subject. Just bear in mind that it is current as of today, February 5, 2014. The status of marriage equality is a moving target. I hope to keep this chronology up to date as new developments happen.

CHRONOLOGY of the Marriage Equality struggle in the United States
Art Leonard (February 2014)
1972 – U.S. Supreme Court dismisses appeal in Baker v. Nelson, holding that denial of marriage to a same sex couple does not raise a “substantial federal question”
1986 – U.S. Supreme Court holds in Bowers v. Hardwick that a claim that gay sex comes within the protection of liberty under the due process clause is “facetious”
1993 – Hawaii Supreme Court holds in Baehr v. Lewin that state’s ban on same-sex marriage may violate Equal Rights Amendment of the Hawaii Constitution and remands for trial
1996 – U.S. Supreme Court holds in Romer v. Evans that a state constitutional amendment adopted to deny equal protection of the laws to gay people violates the Equal Protection Clause of the 14th Amendment as having no rational justification
1996 – Federal government reacts to Hawaii marriage case by adopting Defense of Marriage Act, which provides that no state is required to give full faith and credit to same-sex marriages performed in other states and that the federal government will not recognize same-sex marriages for any purpose
1996 – Hawaii Circuit Court in Honolulu rules in Baehr v. Miike that same-sex couples are entitled to marry under the Hawaii Constitution, being the first trial court anywhere in the world to hold that same-sex couples have a right to marry; decision stayed pending appeal; case mooted by enactment of state constitutional amendment withdrawing jurisdiction from the state courts over the issue of same-sex marriage
1999 – Vermont Supreme Court holds in Baker v. State that denial of the rights and benefits of marriage to same-sex couples violates the Vermont Constitution’s Equal Benefits Clause, but leaves remedy up to the legislature; Texas Court of Appeals holds in Littleton v. Prange that the marriage of a post-operative transsexual woman to a man was void ab initio as a same-sex marriage
2000 – Vermont adopts the nation’s first Civil Union Law, providing a legal status for same-sex couples that includes almost all the state law rights accorded to married couples
2003 – U.S. Supreme Court holds in Lawrence v. Texas that gay sex comes within the protection of liberty under the Due Process Clause, expressly overruling Bowers v. Hardwick. Massachusetts Supreme Judicial Court holds in Goodridge v. Department of Public Health that denial of the right to marry to same-sex couples violates the Massachusetts constitution, delaying implementation for six months
2004 – Massachusetts Supreme Judicial Court, responding to a question from the state Senate, holds in Opinions of the Justices to the Senate that Vermont-style civil unions will not satisfy the requirements of the Massachusetts Constitution. May 17: First same-sex marriages performed in the United States in Massachusetts
2004 – Responding to Massachusetts marriage ruling, President George W. Bush calls in State of the Union Message for efforts to protect “the sanctity of marriage” against “activist judges,” prompting San Francisco Mayor Gavin Newsom to direct County Clerk to issue marriage licenses to same-sex couples. California Supreme Court voids resulting marriages, but same-sex marriage lawsuits are filed in numerous jurisdictions, including California, in reaction to these events.
2005 – As final amendment goes into effect, California Domestic Partnership statute is broadened to provide almost all the rights of marriage to same-sex domestic partners. California legislature approves marriage equality law, which the governor vetoes.
2006 – Highest courts in New York and Washington State ruled against state constitutional same-sex marriage claims in Hernandez v. Robles (N.Y.) and Andersen v. King County (Wash.). Highest court in New Jersey rules in Lewis v. Harris that although same-sex couples do not have a constitutional right to marry under the state constitution, they are entitled to the rights and benefits of marriage under state law, leading the state to enact a Civil Union Act.
2007 – Highest court in Maryland rules against state constitutional same-sex marriage claim in Conaway v. Deane.
2008 – California Supreme Court rules in In re Marriage Cases that same-sex couples have a right to marry under the California Constitution; opponents place initiative amendment on ballot to ban validity or recognition of same-sex marriages in California, which is enacted. Connecticut Supreme Court rules in Kerrigan v Comm’r of Public Health that same-sex couples have a state constitutional right to marry
2009 – California Supreme Court rules that Proposition 8 does not violate California Constitution, but that it did not overturn the constitutional requirement that same-sex couples receive from the state identical rights to married couples and that marriages performed prior to Prop 8 enactment were valid
2009 – Iowa Supreme Court rules in Varnum v. Brien that same-sex couples are entitled to marry under Iowa Constitution, in first such ruling to be unanimous. Vermont, New Hampshire, and Connecticut enact statutes authorizing same-sex marriage. District of Columbia Council enacts marriage equality statute that is not vetoed by Congress.
2010 – U.S. District Court in California rules in Perry v. Schwarzenegger that Proposition 8 violated the 14th Amendment by denial of a fundamental right and failure to afford equal protection without a rational basis; ruling stayed pending appeal by the initiative proponents, as state declines to appeal. U.S. District Court in Massachusetts rules in Gill v. Office of Personnel Management that definitional section of DOMA violates the 5th Amendment.
2011 – New York enacts marriage equality law. Obama Administration abandons defense of definitional section of Defense of Marriage Act in pending challenges in New York, Connecticut and Massachusetts
2012 – Washington State and Maryland enact marriage equality laws that are upheld in referenda. Maine becomes first state to enact a marriage equality law through referendum. President Obama is first president to be elected on platform that includes support for marriage equality. 1st and 2nd Circuits hold that definitional section of Defense of Marriage Act violates 5th Amendment. U.S. District Courts in Nevada and Hawaii reject marriage equality claims in Sevcik v. Sandoval (Nev.) and Jackson v. Abercrombie (Hawaii), finding Baker v. Nelson binding.
2013 – U.S. Supreme Court rules in United States v. Windsor that marriage definition in Defense of Marriage Act violates 5th Amendment’s requirement of “equal liberty” and in Hollingsworth v. Perry that initiative proponents did not have standing to appeal district court’s ruling on Proposition 8
2013 – California state government responds to Hollingsworth v. Perry by resuming same-sex marriages; Obama Administration responds to United States v. Windsor by extending recognition to same-sex marriages for federal law purposes using the “place of celebration” rule except for a few rights and benefits that are expressly subject to the “place of domicile rule” under existing statutes or regulations
2013 – Rhode Island, Delaware, Minneso ta, Hawaii and Illinois enact marriage equality laws. New Mexico Supreme Court rules that same-sex couples have a right to marry under the state constitution.
2013 – Responding to widespread belief that United States v. Windsor signals Supreme Court’s eventual receptiveness to marriage equality arguments, proponents of same-sex marriage file lawsuits in several dozen states raising 14th Amendment claims. New Jersey Supreme Court denies stay of Superior Court ruling in Garden State Equality v. Dow holding same-sex couples have state constitutional right to marry
2013 – U.S. District Court in Utah renders first post-Windsor ruling in Kitchen v. Herbert, holding that same-sex couples have a right to marry under the 14th Amendment, adopting much of the reasoning from district court decision in Perry v. Schwarzenegger under due process and equal protection theories. Court opines that U.S. v. Windsor established some level of heightened scrutiny of sexual orientation equal protection claims, and rendered Baker v. Nelson a nullity. District Court and 10th Circuit deny state’s petitions for a stay, and same-sex couples begin marrying in Utah.
2013 – U.S. District Court in Ohio rules in Obergefell v. Wymyslo that Ohio must recognize same-sex marriages contracted in states under 14th Amendment, protecting the right of a married couple to “stay married” for purposes of determining marital status at time of death. State appeals to 6th Circuit.
2014 – U.S. Supreme Court stays order in Kitchen v. Herbert on January 6, pending appeal on the merits in the 10th Circuit, which schedules argument for April 10
2014 – U.S. District in Oklahoma rules in Bishop v. United States that same-sex couples have a right to marry under the 14th Amendment as a deprivation of equal protection without a rational basis. Court stays ruling pending appeal and 10th Circuit sets oral argument for April 17
2014 – 9th Circuit rules in SmithKline Beecham v. Abbott Laboratories that sexual orientation discrimination claims must be afforded heightened scrutiny under United States v. Windsor
2014 – Pending appeals in marriage equality litigation: 6th Circuit (Ohio), 9th Circuit (Nevada), 10th Circuit (Utah and Oklahoma, to be decided by the same 3-judge panel). Marriage equality litigation is pending in district courts in every federal circuit except the 1st and 2nd Circuits and the D.C. Circuit.

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