The Evolution of Same-Sex Marriage Laws

Same-sex marriage is a legally recognized marriage between two spouses who identify as the same sex—for example, a man marrying a man or a woman marrying a woman.

What Are the Early History and Laws of Same-Sex Marriage?

Throughout history, including back to ancient times, same-sex relationships have been documented in the law or fiction. The stance of the United States on same-sex marriage is based on that of the United Kingdom.

The UK outlawed homosexual behavior until 1967. Later, it pardoned those individuals who were punished for it.

Due to the influence of colonization, this stance on homosexuality spread throughout the world and still exists in former colonies, including:

• Australia;
• India; and
• The United States.

Prior to the 20th century, the criminal offense of homosexuality was referred to as sodomy. These offenses are still found in laws around the globe.

Thomas Jefferson wrote a Virginia law in 1779 stating that any man engaged in sodomy must be castrated. Although this punishment may seem to be severe, it was, in fact, more lenient than the Virginia laws that punished sodomy by death.

What About Same-Sex Legality in 20th Century United States?

Prior to 1962, sodomy was a felony in every U.S. state that was punishable by a prison sentence. It was not until the year 2000 that states began to either repeal their laws against sodomy or state courts began overturning them.

The landmark decision, Lawrence v. Texas, was made in 2003. This decision made the Texas same-sex sodomy law illegal based on its impact on the implied liberty of privacy.

This decision made every sodomy law invalid as long as it applied to civilians in their private lives. As years passed, states also began to ban or repeal laws that regulated heterosexual relationships that had never been enforced.
For example, in Virginia, it was illegal for unmarried heterosexual couples to engage in premarital sex. Many states have similar laws, but they are typically not enforced.

What about Same-Sex Rights and Legality Abroad?

Same-sex marriage in Europe has also changed and has encountered a few roadblocks. A new wave of conservatism married in Europe and nations in Eastern Europe, such as Hungary and Russia, and, as a result, those countries passed laws that banned same-sex relationships.

Other locations, such as Malta, Ireland, and the United Kingdom, provided full recognition of same-sex couples and even permitted it so individuals could adopt children together. Progress has been slower in Asia.

As of May 2016, same-sex activities and relationships were illegal in 23 Asian countries. Some countries, however, are more open and accepting of same-sex relationships, including:

• Japan;
• Nepal;
• Taiwan; and
• Thailand.

As of 2016, same-sex relationships are legal in only one of the 56 nations on the African continent. Same-sex marriage is specifically banned in eight of the 56 African nations.

On the other hand, sodomy is legal in 22 of the 56 African nations. Some areas, such as the Canary Islands, prohibit discrimination against LGBT individuals.

Other nations, in contrast, have banned or prohibited same-sex activity and do not offer any protections to LGBT individuals.

What Are Some Changes for Same-Sex Relationships in the United States?

In the 2013 case, U.S. v. Windsor, the United States Supreme Court struck down the Defense of Marriage Act (DOMA). DOMA was a law denying federal recognition of same-sex marriage.

It did not, however, address states recognizing same-sex marriages. This would be addressed two years later.

In the 2015 case Obergefell v. Hodges, the United States Supreme Court ruled in favor of same-sex marriage. In this decision, Justice Anthony Kennedy wrote:

“Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm…[it] allows two people to find a life that could not be found alone, for a marriage becomes greater than two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations…In forming a marital union, two people become something greater than once they were. As some of the petitioners in this case demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage…They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

After many years of criminalization of same-sex relationships and sodomy, the United States made history by declaring that same-sex marriage and recognition of marriage was a fundamental right that is offered by and protected by the United States Constitution.

What Happened After the Obergefell Decision?

Not long after the Obergefell decision, certain states voiced their disapproval of this decision. For example, one county clerk in Kentucky, Kim Davis, refused to issue marriage licenses to same-sex couples.

Eventually, she was removed from her position, and same-sex marriage licenses were distributed in the state. After the Obergefell decision, there were only 11 counties that refused to issue marriage licenses to same-sex couples.

Each of these refusals resulted in legal action by the federal government. Since this decision, over 300,000 same-sex marriages have taken place in the United States.

Now that same-sex marriages have been legalized and is becoming more common, there are new issues that surround them, including issues that stem out of marriages and relationship that end, such as:

• Divorce;
• Alimony;
• Adoption;
• Child support; and
• Other marriage-related issues.

Although same-sex marriage is accepted in the United States, similar to other civil rights movements, there will continue to be struggles down the road.

What Rights Come with Same-Sex Marriage?

Couples in same-sex marriages have the same benefits, rights, and protections as individuals in heterosexual marriages, including:

• Property rights, including estate planning rights;
• Tax benefits;
• Power of attorney and medical power of attorney;
  • This includes an individual’s right to make emergency medical decisions on their spouse’s behalf if they become incapacitated;
• Insurance coverage, including:
  • life insurance;
  • auto insurance; and
  • insurance provided by employers;
• Divorce and parenting rights, including adoption; and
• Spousal testimonial privilege, which allows the spouses to invoke marital privilege if they are called to testify against their spouse in court.

Do I Need an Attorney if I Am Facing Obstacles to My Same-Sex Marriage?

Although same-sex marriage is legalized across the United States, and these individuals are entitled to the same rights, privileges, and protections as those provided in heterosexual marriages, individuals in a same-sex marriage often face discrimination. In addition, each state varies regarding its recognition of same-sex marriages and their associated rights.

If you have any issues, questions, or concerns related to same-sex marriage laws, it may be helpful to consult with a local family attorney so you can understand your rights and the protections you are afforded. If necessary, your attorney can also help you if a divorce or custody issue arises.

If you have faced discrimination due to your same-sex marriage, you should consult with a civil rights attorney. Your lawyer can help you take available action, understand your options and rights, and represent you in court if needed.

It is important that you have someone who can advocate for your federally granted marriage rights.