Thursday, November 20, 2014

Where is same-sex marriage legal?

Updated November 20, 2014

For a month, it looked like the U.S. might arrive at same-sex marriage in all 50 states without the U.S. Supreme Court making the call.

Of the 11 federal appeals-court circuits, three had already achieved same-sex marriage in every state therein via one route or another, and four more had recently seen appeals-court rulings come into force covering all states therein.

That left only four circuits to go, encompassing the final 15 states where same-sex marriage isn't legal.

But that all changed Nov. 6 when the U.S. Court of Appeals for the 6th Circuit upheld same-sex marriage bans in Kentucky, Michigan, Ohio and Tennessee.

A day later, the lawyers for the gay side in all four states decided to skip asking the 6th Circuit to reconsider the matter with a larger panel of judges and instead go directly to SCOTUS for a ruling that would have national effect. The appeals arrived at the Supreme Court on Nov. 14 and 17.

Because a "split" now exists among the circuits on the question of whether it's unconstitutional for states to ban gay marriage, the Supreme Court is likely to take the case, with a ruling most likely to come next spring.

And the Supreme Court may have tipped its hand Nov. 12, when it refused to stop same-sex marriages from starting in Kansas, its first move on marriage after the 6th Circuit ruling. (Justices Scalia and Thomas said they would have granted the stay request.) It did the same thing again Nov. 20, allowing same-sex marriage to go ahead in South Carolina.

SAME-SEX MARRIAGE is legal in the Netherlands (2001), Belgium (2003), Canada (2005), Spain (2005), South Africa (2006), Norway (2009), Sweden (2009), Argentina (2010), Iceland (2010), Portugal (2010), Denmark (2012), France (2013), Brazil (2013), Uruguay (2013), New Zealand (2013), England and Wales (2014), Scotland (starting Dec. 31) and Luxembourg (starting early 2015).

Same-sex marriages also have taken place on the Caribbean islands of Saba, a municipality of the Netherlands (2012), and Martinique, an overseas region of France (2013).

In Mexico, same-sex marriage is available in the Federal District (Mexico City) and the states of Coahuila and Quintana Roo -- and, for some couples who filed legal cases, in the states of Baja California, Chihuahua, Colima, Jalisco, Oaxaca and Yucat√°n. The marriages are recognized nationwide by Supreme Court order. Mexico has 31 states.

In Colombia, a handful of same-sex couples have managed to get married since September 2013, but the situation remains fluid. Latest here.

In Australia, same-sex couples were able to marry in the Australian Capital Territory from Dec. 7, 2013, to Dec. 12, 2013, under a special "same-sex marriage" law the territory enacted. On Dec. 12, Australia's High Court invalidated the law and the marriages, pointing out that marriage is a matter of federal law in Australia.

IN THE UNITED STATES, same-sex marriage is legal in Massachusetts (2004), California (2008 for four months, then 2013 for good), Connecticut (2008), Vermont (2009), Iowa (2009), New Hampshire (2010), Washington, D.C. (2010), New York (2011), Maine (2012), Maryland (2012), Washington (2012), Delaware (2013), Rhode Island (2013), Minnesota (2013), New Jersey (2013), Hawaii (2013), New Mexico (2013), Oregon (2014), Pennsylvania (2014), Illinois (2014), Colorado (Oct. 6, 2014), Indiana (Oct. 6, 2014), Oklahoma (Oct. 6, 2014), Utah (Oct. 6, 2014), Virginia (Oct. 6, 2014), Wisconsin (Oct. 6, 2014), West Virginia (Oct. 9, 2014), Nevada (Oct. 9, 2014), North Carolina (Oct. 10, 2014), Idaho (Oct. 15, 2014), Arizona (Oct. 17, 2014), Alaska (Oct. 17, 2014), Wyoming (Oct. 21, 2014), Kansas (Nov. 12, 2014), Montana (Nov. 19, 2014) and South Carolina (Nov. 20, 2014). It also is legal in the independent city of St. Louis, Missouri (Nov. 5, 2014), the separate county of St. Louis (Nov. 5, 2014) and Jackson County, Missouri, which includes Kansas City (Nov. 7, 2014). That's 35 states, the District of Columbia and places in Missouri.

What's the deal in Missouri? Since Oct. 6, 2014, when Attorney General Chris Koster opted not to appeal a marriage-recognition ruling from a state court in Kansas City, Missouri has recognized same-sex marriages from anywhere in the world. Then, on Nov. 5, 2014, a state judge in St. Louis struck down Missouri's marriage ban and weddings began in St. Louis and St. Louis County (the city of St. Louis is independent and not located in any county). Koster, who supports same-sex marriage, appealed the decision but did not seek a stay to stop the St. Louis marriages. Then, on Nov. 7, a federal judge in Kansas City struck down the state's ban and marriages began in Jackson County. It is possible same-sex marriages could begin elsewhere in Missouri if officials decide either court ruling has statewide effect.

Bans on same-sex marriage in Arkansas, Florida, Louisiana and Texas have been struck down by federal and/or state judges, but the rulings were stayed while on appeal. In Louisiana and Puerto Rico (one of the United States' five inhabited territories), federal judges have upheld bans. The rulings are being appealed.

As for the other four inhabited U.S. territories: Guam and the Northern Mariana Islands are in the 9th Circuit and would likely see same-sex marriage legalized if they were sued. The U.S. Virgin Islands is in the 3rd Circuit and likely would see same-sex marriage legalized if it were sued. All states in the 1st Circuit (which includes Puerto Rico) and 3rd Circuit achieved marriage equality via pathways that did not involve federal appeals-court rulings. American Samoa is a case unto itself. It does not have federal courts. If it is sued, the matter might start in local court or in federal court in D.C. It may not be possible to sue American Samoa for marriage in federal court. The reason is complex, but if you're interested, you can start here.

INDIAN TRIBES: Same-sex marriage also has been explicitly legalized within the Coquille Indian Tribe in Oregon (2009), The Suquamish Tribe in Washington state (2011), the Little Traverse Bay Bands of Odawa Indians in Michigan (2013), The Confederated Tribes of the Colville Reservation in Washington state (2013), the Pokagon Band of Potawatomi Indians in Michigan (2013), the Iipay Nation of Santa Ysabel in California (2013), the Cheyenne and Arapaho Tribes in Oklahoma (2013), the Leech Lake Band of Ojibwe in Minnesota (2013), and the Puyallup Tribe of Indians in Washington (2014).

HISTORICAL NOTES: In Utah, 1,259 same-sex couples married between Dec. 20, 2013, and Jan. 6, 2014, when the U.S. Supreme Court stayed a Salt Lake City federal judge's strikedown of the state's gay-marriage ban. The stay was lifted Oct. 6, 2014, when the U.S. Supreme Court declined to review pro-same-sex-marriage rulings from appeals courts in three federal circuits. In Michigan, 315 same-sex couples married in four counties on Saturday, March 22, 2014, before the U.S. Court of Appeals for the 6th Circuit issued a stay. In Arkansas, 541 same-sex couples received marriage licenses before the Arkansas Supreme Court issued a stay a week after the May 9, 2014, strikedown. In Wisconsin, more than 500 same-sex couples married June 6-13, 2014, before a federal judge finalized her paperwork and issued a stay -- which was lifted by the U.S. Supreme Court action on Oct. 6, 2014. In Indiana, some 800 same-sex couples married June 25-27, 2014, before the U.S. Court of Appeals for the 7th Circuit issued a stay -- which was lifted by the U.S. Supreme Court action on Oct. 6, 2014. In Colorado, more than 300 same-sex couples married in Boulder, Denver and Pueblo counties in June and July 2014 after various legal developments, including the state's marriage ban being struck down in both state and federal court. The three counties eventually were forced to stop issuing gay licenses by the state Supreme Court or Attorney General John Suthers, with Boulder being the final county shut down on July 29, 2014. Colorado resumed issuing marriage licenses to same-sex couples on Oct. 6, 2014, following the U.S. Supreme Court rejection of the 10th Circuit appeals from Utah and Oklahoma.

In U.S. states that do not allow or recognize same-sex marriage, married same-sex couples who live there are still recognized as married for many federal purposes, including income tax, immigration, military benefits and likely scores of other matters that always have been tied to whether a couple entered into a legal marriage anywhere in the world rather than to a state's marriage rules.
[Older]