Early Years: Same-Sex Marriage Bans
Clerk Gerald Nelson rejected their application because they were a same-sex couple, and a trial court upheld his decision. Baker and McConnell appealed, but the state Supreme Court affirmed the trial judge’s decision in 1971.
When the couple appealed again, the U.S. Supreme Court in 1972 declined to hear the case “for want of a substantial federal question.” This ruling effectively blocked federal courts from ruling on same-sex marriage for decades, leaving the decision solely in the hands of states, which dealt blow after blow to those hoping to see gay marriage becoming legal.
In 1973, for instance, Maryland became the first state to create a law that explicitly defines marriage as a union between a man and woman. Other states quickly followed suit: Virginia in 1975, and Florida, California and Wyoming in 1977.
Of course, numerous other same-sex couples across the country had also applied for marriage licenses over the years, but each ended in a somber note like Baker and McConnell’s case. Though the gay rights movement saw some advancements in the 1970s and 1980s—such as Harvey Milk becoming the first openly gay man elected to public office in the country in 1977—the fight for gay marriage made little headway for many years.
Marriage Equality: Turning the Tide
In the late 1980s and early 1990s, same-sex couples saw the first signs of hope on the marriage front in a long time. In 1989, the San Francisco Board of Supervisors passed an ordinance that allowed homosexual couples and unmarried heterosexual couples to register for domestic partnerships, which granted hospital visitation rights and other benefits.
Three years later, the District of Columbia similarly passed a new law that allowed same-sex couples to register as domestic partners. Like with San Francisco’s ordinance, D.C.’s domestic partnership status fell far short of full marriage, but it did grant D.C. same-sex couples some important benefits, such as allowing partners to receive health care coverage if their significant other was employed by the D.C. government.
Then, in 1993, the highest court in Hawaii ruled that a ban on same-sex marriage may violate that state constitution’s Equal Protection Clause—the first time a state court has ever inched toward making gay marriage legal.
The Hawaii Supreme Court sent the case—brought by a gay male couple and two lesbian couples who were denied marriage licenses in 1990—back for further review to the lower First Circuit Court, which in 1991 originally dismissed the suit.
As the state tried to prove that there was “compelling state interest” in justifying the ban, the case would be tied up in litigation for the next three years.
The Defense of Marriage Act
Opponents of gay marriage, however, did not sit on their haunches. In response to Hawaii’s 1993 court decision, the U.S. Congress in 1996 passed the Defense of Marriage Act (DOMA), which President Bill Clinton signed into law.
DOMA didn’t ban gay marriage outright, but specified that only heterosexual couples could be granted federal marriage benefits. That is, even if a state made gay marriage legal, same-sex couples still wouldn’t be able to file income taxes jointly, sponsor spouses for immigration benefits, or receive spousal Social Security payments, among many other things.
The act was a huge setback for the marriage equality movement, but transient good news arose three months later: Hawaii Judge Kevin S. C. Chang ordered the state to stop denying licenses to same-sex couples.
Unfortunately for these couples looking to get married, the celebration was short-lived. In 1998, Hawaii voters approved a constitutional amendment banning same-sex marriage in the state.
Pushing for Change: Civil Unions
The next decade saw a whirlwind of activity on the gay marriage front, beginning with the year 2000, when Vermont became the first state to legalize civil unions, a legal status that provides most of the state-level benefits of marriage.
Three years later, the Massachusetts Supreme Court ruled that same-sex couples had the right to marry, a ruling that, unlike Hawaii’s, wouldn’t be overturned by voters. The state finally introduced the country to gay marriage (minus the federal benefits) when it began issuing same-sex marriage licenses on May 17, 2004.
2004 was notable for couples in many other states as well, though for the opposite reason: Ten typically conservative states, along with Oregon, enacted state-level bans on gay marriage. Kansas and Texas were next in 2005, and 2006 saw seven more states passing Constitutional amendments against gay marriage.
Throughout the decade and the beginning of the next, California frequently made headlines for seesawing on the gay marriage issue.
The state was the first to pass a domestic partnership statute in 1999, and legislators tried to pass a same-sex marriage bill in 2005 and 2007—the bills were vetoed by Governor Arnold Schwarzenegger both times.
In May 2008, the state Supreme Court struck down the 1977 state law banning same-sex marriage, but just a few months later voters approved Proposition 8, which again restricted marriage to heterosexual couples.
The highly contentious ballot measure was declared unconstitutional two years later, but multiple appeals kept the matter unsettled until 2013, when the U.S. Supreme Court dismissed the case.
United States v. Windsor
The early 2010s continued the state-level battles over gay marriage that defined the preceding decade, with at least one notable event. For the first time in the country’s history, voters (rather than judges or legislators) in Maine, Maryland, and Washington approved Constitutional amendments permitting same-sex marriage in 2012.
Same-sex marriage also became a federal issue again.
In 2010, Massachusetts, the first state to legalize gay marriage, found Section 3 of DOMA—the part of the 1996 law that defined marriage as a union between one man and one woman—to be unconstitutional. Foundations of the act had finally begun to crumble, but the real hammer fell with United States v. Windsor.
In 2007, New York lesbian couple Edith Windsor and Thea Spyer wed in Ontario, Canada. The State of New York recognized the residents’ marriage, but the federal government, thanks to DOMA, did not. When Spyer died in 2009, she left her estate to Windsor; since the couple’s marriage was not federally recognized, Windsor didn’t quality for tax exemption as a surviving spouse and the government imposed $363,000 in estate taxes.
Windsor sued the government in late 2010. A few months later, U.S. Attorney General Eric Holder announced that the Barack Obama administration would no longer defend DOMA, leaving a representative of the Bipartisan Legal Advisory Group of the House of Representatives to take on the case.
In 2012, the 2nd U.S. Circuit Court of Appeals ruled that DOMA violates the Constitution’s equal protection clause, and the U.S. Supreme Court agreed to hear arguments for the case.
The following year, the court ruled in favor of Windsor, ultimately striking down Section 3 of DOMA.
Obergefell v. Hodges
Though the U.S. government could now no longer deny federal benefits to married same-sex couples, other parts of DOMA were still intact, including Section 2, which declared that states and territories could refuse to recognize the marriages of same-sex couples from other states. Soon enough, however, DOMA lost its power thanks to the historic Obergefell v. Hodges.
The case involved several groups of same-sex couples who sued their respective states (Ohio, Michigan, Kentucky, and Tennessee) for the states’ bans on same-sex marriage and refusal to recognize such marriages performed elsewhere.
The plaintiffs—led by Jim Obergefell, who sued because he was unable to put his name on his late husband’s death certificate—argued that the laws violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment.
In each case, trial courts sided with the plaintiffs, but the U.S. Court of Appeals for the Sixth Circuit disagreed, bringing the case to the U.S. Supreme Court.
Full Marriage Equality Attained
As with United States v. Windsor, conservative Justice Anthony Kennedy sided with Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan in favor of same-sex marriage rights, ultimately making gay marriage legal across the nation in June 2015.
By this time, it was still outlawed in only 13 states, and more than 20 other countries had already legalized gay marriage, starting with the Netherlands in December, 2000.
A Pew Research Center poll in 2001 found that 57 percent of Americans opposed same-sex marriage and only 35 percent supported it. Fifteen years later, in 2016, a Pew poll found almost the complete opposite: Americans supported same-sex marriage by a margin of 55 percent to 37 percent.