How Same-Sex Marriage Became Legal In The Us

The fight for same-sex marriage in the United States was a long one, spanning decades of history and culminating in victory in June 2015. The road to nationwide marriage equality began in the 1970s, with civil rights campaigning in support of marriage without distinction as to sex or sexual orientation. In 1972, the Supreme Court of the United States declined to become involved in the case of Baker v. Nelson, which sought to legalise same-sex marriage. The issue gained prominence in 1993, when the Supreme Court of Hawaii ruled in Baehr v. Lewin that it was unconstitutional to abridge marriage on the basis of sex. This led to federal and state actions to explicitly abridge marriage on the basis of sex, the most prominent of which was the 1996 federal Defense of Marriage Act (DOMA).

In 2003, the Massachusetts Supreme Judicial Court ruled in Goodridge v. Department of Public Health that it was unconstitutional to abridge marriage on the basis of sex. From 2004 to 2015, as public opinion continued to move towards support for same-sex marriage, various state court rulings, state legislation, direct popular votes, and federal court rulings established same-sex marriage in thirty-six of the fifty states. On June 26, 2015, the U.S. Supreme Court struck down all state bans on same-sex marriage, legalising it in all fifty states, and requiring states to honour out-of-state same-sex marriage licenses in the case of Obergefell v. Hodges.

The Supreme Court decision in Obergefell v. Hodges

The Obergefell v. Hodges case was a consolidation of six lower-court cases, originally representing sixteen same-sex couples, seven of their children, a widower, an adoption agency, and a funeral director. The cases came from Michigan, Ohio, Kentucky, and Tennessee. The Supreme Court's ruling in Obergefell v. Hodges ended all inter-state legal complications surrounding same-sex marriage, as it ordered states to both perform the marriages of same-sex couples and to recognize the marriages of same-sex couples performed in other states.

The Defense of Marriage Act

The main provisions of the act were as follows:

• Section 1: The Act may be cited as the "Defense of Marriage Act".
• Section 2: 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.
• Section 3: For all federal purposes, marriage is defined as the legal union of 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 wife.

DOMA was subject to numerous lawsuits and repeal efforts after its passage. In United States v. Windsor (2013), the U.S. Supreme Court declared Section 3 of DOMA unconstitutional under the Due Process Clause, requiring the federal government to recognize same-sex marriages conducted by the states. In Obergefell v. Hodges (2015), the Court held that same-sex marriage was a fundamental right protected by both the Due Process Clause and the Equal Protection Clause. This ruling required all states to perform and recognize the marriages of same-sex couples, leaving Section 2 of DOMA as superseded and unenforceable. On December 13, 2022, DOMA was repealed and replaced by the Respect for Marriage Act, which recognizes and protects same-sex and interracial marriages under federal law and in interstate relations.

The Supreme Court decision in Lawrence v. Texas

The Supreme Court struck down the sodomy law in Texas in a 6-3 decision, invalidating similar laws in 13 other states and making all forms of private, consensual non-procreative sexual activities between consenting adults legal across the United States. The Court ruled that intimate consensual sexual conduct was part of the liberty protected by the Due Process Clause of the Fourteenth Amendment. This decision overruled the Court's previous ruling in Bowers v. Hardwick, where it upheld a challenged Georgia statute and did not find a constitutional protection of sexual privacy.

The Supreme Court's decision in Lawrence v. Texas was celebrated by gay rights advocates and set the stage for further reconsideration of standing law, including the landmark cases of United States v. Windsor (2013), which invalidated Section 3 of the Defense of Marriage Act, and Obergefell v. Hodges (2015), which recognised same-sex marriage as a fundamental right under the United States Constitution.

The Supreme Court decision in Hollingsworth v. Perry

Hollingsworth v. Perry was a series of federal court cases that re-legalized same-sex marriage in California. The case began in 2009 in the U.S. District Court for the Northern District of California, which found that banning same-sex marriage violates equal protection under the law. This decision overturned California ballot initiative Proposition 8, which had banned same-sex marriage.

The case was litigated during the governorships of Arnold Schwarzenegger and Jerry Brown and was known as Perry v. Schwarzenegger and Perry v. Brown, respectively. As Hollingsworth v. Perry, it eventually reached the United States Supreme Court, which held that, in line with prior precedent, the official sponsors of a ballot initiative measure did not have Article III standing to appeal an adverse federal court ruling when the state refused to do so.

The Supreme Court's decision in Hollingsworth v. Perry was delivered on June 26, 2013. In a 5-4 ruling, the Supreme Court held that, as private parties with a "generalized grievance," the Proposition 8 proponents did not have standing to appeal Judge Vaughn Walker's ruling. In the majority opinion, Chief Justice John Roberts explained that Article III of the Constitution confines the power of federal courts to deciding actual "cases" or "controversies." Once the District Court issued its order, the Proposition 8 proponents "no longer had any injury to redress," and that "no matter how deeply committed petitioners may be to upholding Proposition 8," their interest was insufficient to confer standing.

The four dissenting Justices (Kennedy, Thomas, Alito, and Sotomayor) would have held that the Proposition 8 proponents did have standing to appeal. Justice Kennedy, in his dissenting opinion, expressed concern about the implications of the Supreme Court ruling, noting that voter initiatives exist for when voters feel the State is insufficiently responsive to their concerns or as a way for people to assert their rights. He wrote:

> "In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government."

The Supreme Court decision in United States v. Windsor

Windsor was in a same-sex marriage with Thea Spyer, and when Spyer died in 2009, she left her entire estate to Windsor. However, Windsor was barred from claiming the federal estate tax exemption for surviving spouses by Section 3 of the Defense of Marriage Act (DOMA), which defined marriage as "a legal union between one man and one woman as husband and wife". As a result, Windsor paid $363,053 in estate taxes and sought a refund.

The District Court ruled in Windsor's favour, finding that Section 3 of DOMA was unconstitutional, and the U.S. Court of Appeals for the Second Circuit affirmed the ruling. The Supreme Court granted certiorari in December 2012 and handed down its judgment on June 26, 2013, finding Section 3 of DOMA to be unconstitutional.

In the majority opinion, Justice Anthony Kennedy declared that Section 3 of DOMA was "a deprivation of the liberty of the person protected by the Fifth Amendment". He wrote that DOMA "writes inequality into the entire United States Code" and "forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law". Kennedy also stated that DOMA "demeans the couple, whose moral and sexual choices the Constitution protects" and "humiliates tens of thousands of children now being raised by same-sex couples".

The ruling in United States v. Windsor was a significant milestone on the path to equal rights for lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) people. It led to the federal government extending rights, privileges, and benefits to married same-sex couples, and it paved the way for the Supreme Court's decision in Obergefell v. Hodges in 2015, which struck down all state bans on same-sex marriage.

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