Saturday, October 25, 2014

Where is same-sex marriage legal?

Here is the answer as of October 25, 2014.
First, here's what's next in the U.S., where developments have come very fast since Oct. 6 and same-sex marriage is now legal in 32 states and the District of Columbia.

There are three states where, due to in-force federal-appeals-court rulings, same-sex marriage should be legal now but isn't: Kansas (an Oct. 24 hearing was canceled and the judge may decide the case without one), Montana (there's a hearing Nov. 20) and South Carolina (a ruling could come Nov. 3).

Beyond that, any day now could see a ruling from the U.S. Court of Appeals for the 6th Circuit on the marriage bans in Kentucky, Michigan, Ohio and Tennessee. That should be followed later by rulings from the 5th Circuit affecting the bans in Louisiana, Mississippi and Texas, and the 11th Circuit affecting the bans in Alabama, Florida and Georgia. The 8th Circuit likely will be last. At present, that ruling would affect Arkansas, Missouri, North Dakota, Nebraska and South Dakota. Also in play is a new appeal from the U.S. territory of Puerto Rico to the 1st Circuit, after a federal district court upheld the commonwealth's marriage ban Oct. 21. All states in the 1st Circuit already permit same-sex marriage.

If the 1st, 5th, 6th, 8th or 11th circuit rules against same-sex marriage, that should send the matter to the U.S. Supreme Court for a nationwide ruling. If all circuits rule for same-sex marriage, it becomes legal in the remaining 15 states and five territories without SCOTUS intervention, as legal action concludes in each jurisdiction. More details in my full worldwide post that begins now.

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) and Wyoming (Oct. 21, 2014). That's 32 states and the District of Columbia.

In addition, three more states will see same-sex marriage legalized soon because they are in federal circuits where appeals-court decisions striking down bans are the law of the land -- following the U.S. Supreme Court's Oct. 6, 2014, rejection of appeals from three circuits and its Oct. 10 and Oct. 17, 2014, refusals to issue stays in the 9th Circuit. Those states are Kansas, Montana and South Carolina. A same-sex couple married at the courthouse in Olathe, Kansas, on Oct. 10, but the state Supreme Court later halted any more gay marriages.

Missouri has a curious situation. It does not let gay couples marry but it recognizes their marriages if they get married anywhere in the world -- including the bordering states of Illinois and Iowa -- a decision state officials finalized Oct. 6, 2014, after the U.S. Supreme Court action.

Bans on same-sex marriage in Arkansas, Florida, Kentucky, Louisiana, Michigan 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. On Oct. 7, 2014, the U.S. Court of Appeals for the 9th Circuit upheld a strikedown of Idaho's gay-marriage ban, and struck down Nevada's ban. Marriages soon began in both states, as well as in the 9th Circuit states of Alaska and Arizona. Because SCOTUS rejected stay requests from Idaho and Alaska, legalization of same-sex marriage is just a matter of time in the rest of the 9th Circuit -- Montana and (probably) the territories of Guam and the Northern Mariana Islands. Montana's case is in its final stage while the two territories haven't been sued.

The other two territories are American Samoa and the U.S. Virgin Islands. Neither has been sued. The Virgin Islands is in the 3rd Circuit, where all states permit same-sex marriage (as do all states in Puerto Rico's circuit, the 1st). American Samoa does not have federal courts. If it is sued, the matter might start in territorial court or in federal court in D.C. American Samoa's situation vis-a-vis federal courts is unclear and no amount of Googling makes it less so. I've asked 15 of my favorite lawyers to take a look. The first one to respond opined that there may be no way to sue American Samoa for marriage in federal court.

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's stayed a Salt Lake City federal judge's strikedown of the state's gay-marriage ban. The stay was lifted by the U.S. Supreme Court action on Oct. 6, 2014. 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.