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Ludovic Bertron

Same-sex marriage in the US, explained

Within 11 years, same-sex marriage rights spread from just one state to all 50 and Washington, DC. Here's what led to the final decision by the Supreme Court.

In 2004, same-sex marriage was legal in just one state. But over the next 11 years, marriage equality spread across the nation — to 50 states and Washington, DC — through a mix of court decisions, ballot initiatives, and laws pushed through state legislatures.

Christophe Haubursin/Vox

The spread of marriage equality had been years in the making — going back to Massachusetts, the first state with marriage equality. When the state's Supreme Court legalized same-sex marriages, it forced the public to, for the first time, seriously consider the possibility of unions between gay and lesbian couples — and this opened the door to a shift in public opinion that has culminated in majority support for marriage equality today.

At the same time, states through the 1990s and 2000s enacted bans on same-sex marriages through constitutional amendments and other legislation after the Hawaii Supreme Court suggested in 1993 that prohibiting same-sex couples from marrying might violate the state's constitution. It's these bans that became the focal point of the debate in courts, as pro-LGBTQ organizations like the American Civil Liberties Union, Lambda Legal, and the National Center for Lesbian Rightschallenged them as unconstitutional.

Supporters of marriage equality argued that granting marriage rights to same-sex couples provides equal treatment under the law and unlocks a host of government benefits that help the children of same-sex couples and society as a whole.

Opponents of same-sex marriage rights said that allowing only opposite-sex marriages strengthens the traditional family, because it encouraged natural procreation and motivates parents to stay together to raise their biological children.

The argument largely came down to whether the traditional institution of marriage can and should change in the US. But America's interpretation of marriage has actually changed in the past — and the Supreme Court in June 2015 agreed it was time to change it again.

The Supreme Court legalized same-sex marriages across the US

The US Supreme Court on June 26, 2015, struck down states' same-sex marriage bans, bringing marriage equality to the entire US.

"No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family," Justice Anthony Kennedy, who joined the court's liberals in the 5-4 ruling, wrote. "[The challengers] ask for equal dignity in the eyes of the law. The Constitution grants them that right."

Kennedy also wrote the majority opinion in United States v. Windsor, which struck down the federal ban on same-sex marriages in 2013 with a legal rationale that he would later apply to states' bans. He argued that the federal ban violated constitutional protections and discriminated against same-sex couples by preventing them from fully accessing "laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans' benefits."

Since a similar legal argument applied to state-level programs and benefits attached to marriage, and Kennedy appeared to invoke a similar argument during oral arguments in April, many court watchers long expected Kennedy to rule against states' same-sex marriage bans, as well.

"The court was so focused on the tens of thousands of children being raised by same-sex parents and so sensitive to the ways those children are being disadvantaged and harmed and stigmatized," Shannon Minter, legal director at the National Center for Lesbian Rights, said prior to the court ruling. "It's hard to see how those same considerations wouldn't end up applying equally or even more forcefully to state marriage bans."

Those considerations were particularly important, LGBTQ advocates argued, since the Supreme Court in October 2014 effectively legalized same-sex marriages in 11 states by refusing to hear appeals from cases originating in Utah, Oklahoma, Virginia, Wisconsin, and Indiana.

"It is almost inconceivable that having allowed so many couples to marry and so many families to gain the legal security and protection of marriage, the court would then roll back the clock," Minter said. "That would be not only cruel but chaotic."

But it was always possible that the Supreme Court would not rule in favor of marriage equality. It could have handed down a limited ruling that forced states to recognize but not grant same-sex marriage licenses. It could also have upheld states' same-sex marriage bans, which would have effectively reinstated bans in dozens of states and — potentially — rescinded the marriages of couples who were married between the time lower courts allowed their unions and the final Supreme Court decision.

But key members of the Supreme Court had been signaling for some time that they were prepared to make same-sex marriage rights the law of the land, leaving LGBTQ advocates very optimistic up to the final pro-marriage-equality decision.

The strongest argument for same-sex marriage: equal rights for same-sex couples

Supporters of same-sex marriage argued that prohibiting gay and lesbian couples from marrying is inherently discriminatory and therefore violates the US Constitution's 14th Amendment.

Marriage equality advocates said that states' same-sex marriage bans denied same-sex couples equal access to significant benefits provided by state governments to married couples. In states without marriage equality, for example, same-sex couples weren't able to jointly file for taxes, inherit a partner's estate upon death without paying an estate or gift tax, or make important medical decisions for their partners.

Prior to the Supreme Court's 2013 decision in United States v. Windsor, the federal ban on same-sex marriage prevented gay and lesbian couples from accessing similar benefits at the federal level. This is actually one of the reasons Justice Anthony Kennedy, who wrote the majority opinion in the case, elected to strike down the Defense of Marriage Act: he wrote that the federal same-sex marriage ban discriminated against same-sex couples by preventing them from fully accessing "laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans' benefits." The court concluded that denying same-sex couples these equal benefits violated the 14th Amendment, which requires federal and state government apply all laws equally to everyone.

United States v. Windsor isn't the first time the Supreme Court applied the 14th Amendment to marriage rights. In 1967, the Supreme Court applied the same standards when it struck down states' interracial marriage bans in Loving v. Virginia.

"This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment," Chief Justice Earl Warren wrote in the majority opinion at the time. "For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment."

This interpretation of the 14th Amendment is what led many lower courts to strike down states' same-sex marriage bans, and eventually led to the Supreme Court's final decision to strike down states' same-sex marriage bans and bring marriage equality to all 50 states.

The strongest argument against same-sex marriage: traditional marriage is in the public interest

Opponents of same-sex marriage argued that it's in the public interest for states to encourage heterosexual relationships through traditional marriage policies. Some groups, such as the United States Conference of Catholic Bishops, cited the secular benefits of heterosexual marriages, particularly the ability of heterosexual couples to reproduce, as Daniel Silliman reported at the Washington Post.

"It is a mistake to characterize laws defining marriage as the union of one man and one woman as somehow embodying a purely religious viewpoint over against a purely secular one," the bishops said in an amicus brief. "Rather, it is a common sense reflection of the fact that [homosexual] relationships do not result in the birth of children, or establish households where a child will be raised by its birth mother and father."

Other groups, like the conservative Family Research Council, warned that allowing same-sex couples to marry would lead to the breakdown of traditional families. But keeping marriage to heterosexual couples, FRC argued in an amicus brief, allowed states to "channel the potential procreative sexual activity of opposite-sex couples into stable relationships in which the children so procreated may be raised by their biological mothers and fathers."

To defend same-sex marriage bans, opponents had to convince courts that there was a compelling state interest in encouraging heterosexual relationships that isn't really about discriminating against same-sex couples.

But the Supreme Court rejected this argument, deeming states' same-sex marriage bans discriminatory and unconstitutional.

The Supreme Court previously struck down the federal ban on same-sex marriages

The Supreme Court previously struck down the federal ban on same-sex marriages, deeming it unconstitutional.

In United States v. Windsor, the Supreme Court struck down a major portion of the Defense of Marriage Act. The landmark 2013 ruling forced the federal government to recognize at least some same-sex marriages, and it was seen as a major victory for LGBTQ advocates.

The Constitution's 14th Amendment requires the government to apply laws equally for all people. Justice Anthony Kennedy, who wrote the majority opinion, concluded that DOMA violated the 14th Amendment by denying same-sex couples access to federal benefits attached to marriage.

The Supreme Court's DOMA decision led to rulings in lower federal courts allowing same-sex couples to marry in most states. As these challenges trickled back up to the Supreme Court, justices were forced to reconsider the issue — ultimately bringing marriage equality to all 50 states.

The institution of marriage has changed in the past

The role of marriage has widely varied from civilization to civilization and era to era throughout human history.

Four centuries ago, arranged marriages were common practice in the West (the Americas and Western Europe). Love marriages — the now-commonplace unions between romantic partners who marry out of their love and commitment to each other — rose to prominence in the West throughout the 18th and 19th centuries, although the practice of arranged marriages remains prevalent in some countries, such as India.

In this transition from arranged to chosen marriage, the institution went from one that primarily served collective social interests, particularly those of extended families, to a union that was more focused on the needs of two individuals and their children.

More recently, marriage rights in the United States have become more expansive, as states repealed bans on interracial marriage in the early 20th century. At first, this change was driven largely by a shift in public opinion within states, much like same-sex marriage legalization today. The final blow to interracial marriage bans came through 1967's Loving v. Virginia, a case in which the Supreme Court deemed bans on interracial relationships unconstitutional.

The evidence that the institution of marriage can change is crucial to the marriage equality debate. If the definition of marriage could change in the past to focus on love instead of familial arrangements, or include interracial couples instead of just single-race couples, it was seen as possible that marriage could change once again to allow unions between same-sex couples.

Marriage provides many benefits to same-sex couples

Government recognition of marriage comes with many benefits, such as potentially lower taxes and the ability to make important medical decisions for a spouse.

Here are nine of the many benefits to marriage:

  1. Married couples can file taxes jointly. In some cases, particularly those where only one spouse is working, this can significantly lower a couple's taxes. The Tax Policy Center provides a calculator for marriage benefits and penalties here.
  2. If someone in the marriage dies, the remaining spouse can inherit the partner's estate — stockpiled wealth, investments, and property, as a few examples — without paying an estate or gift tax.
  3. Married partners are allowed to make important medical decisions for their spouses. So a spouse can make choices about medical treatments for an incapacitated husband or wife unable to make his or her own decisions.
  4. Employers sometimes provide family benefits exclusively to married couples. This limitation can prevent unmarried employees, even those in same-sex relationships who want to get married but legally can't, from applying for employer-provided family health plans or taking a family leave to take care of a sick spouse.
  5. In case of death, a spouse can make burial or other final arrangements with the body. (No one technically owns a body, but spouses are generally given legal first rights for deciding what happens with a corpse.)
  6. The divorce process helps to ensure a fair division of assets and resolution of custody disputes when a married couple separates.
  7. Married couples can apply for family rates for health insurance plans, both in the private individual market and on the Obamacare exchanges. On the exchanges in particular, low- to middle-income married couples can jointly apply for federal tax credits to help pay their premiums.
  8. The government can't force married spouses to disclose confidential information privately discussed during a marriage.
  9. Married spouses have visiting rights in jails, prisons, hospitals, and other places that provide visiting rights only to immediate family.

Legal advice organization Nolo maintains a more thorough list of marriage benefits here.

These benefits were at the center of both sides' arguments for and against marriage equality. Opponents of same-sex marriage rights argued that these benefits should be used to encourage long-lasting opposite-sex relationships that produce traditional families and allow children to remain with their biological parents. But supporters of marriage equality said it's unfair and discriminatory that same-sex couples are denied these benefits — especially since many gay and lesbian parents have children of their own that could greatly benefit from the financial and cultural advantages of a legally recognized union.

Marriage could benefit same-sex couples' children and society

A growing body of research suggests that the children of same-sex couples and society as a whole could greatly benefit if governments established marriage equality.

A March 2013 meta-analysis from the American Academy of Pediatrics concluded that inhibiting same-sex parents' ability to marry could create stress in family settings that could inhibit children's development. The study concluded that barriers to equal treatment for same-sex couples should be removed, and all couples should be evaluated on competency rather than sexual orientation.

Marriage also comes with significant government benefits for couples, which could relieve the type of financial distress that the AAP analysis concluded is far more likely to hurt the development of same-sex couples' children than their parent's sexual orientation.

Same-sex marriage also benefits society as a whole through a small economic bump as gay and lesbian couples flock to bakers, caterers, and other businesses to set up their weddings. A February 2015 analysis from the Williams Institute, a think tank focused on LGBTQ issues, found marriage equality could sustain or create thousands of jobs and generate millions in revenue in states that currently don't have marriage equality. This economic boost is small compared to the overall size of state economies, but it certainly doesn't hurt.

These types of benefits to children and society provided some of the motivation for courts' decisions in favor of marriage equality. In the majority opinion for the Supreme Court case that ended states' bans on same-sex marriages, Justice Anthony Kennedy wrote that the bans humiliate and hurt same-sex couples' children. By prohibiting these marriages, then, state governments weren't just hurting couples, but children and society as a whole.

A majority of the American public supports same-sex marriage, which wasn't true just a few years ago. Between 1996 and 2015, Gallup found support for same-sex marriage more than doubled, from 27 percent to 60 percent.

Gallup same-sex marriage Gallup

(Gallup)

Although support is generally trending up among all age groups, Gallup also found the biggest support among younger generations.

same-sex marriage support by age

An April 2015 analysis from the Williams Institute, a think tank focused on LGBTQ issues, found support for same-sex marriage was rising in all 50 states and appeared to be rising more quickly in states that had legalized same-sex marriage.

Marriage equality advocates like Freedom to Marry are widely credited with helping build this support over the years — often by getting same-sex couples to simply come out of the closet to friends and family to show the world that their relationships are broadly similar as heterosexual couples' relationships.

To LGBTQ groups, the generational gap and growing support across the board reinforced the belief that same-sex marriage rights at all levels of government were inevitable, especially as younger generations became increasingly involved in politics. And as the Supreme Court considered whether to legalize same-sex marriage across the US, the growing support showed that the country was ready for a ruling in favor of marriage equality.

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