Friday, April 29, 2016

Where is same-sex marriage legal?

Updated April 29, 2016
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) + Greenland (2016) + Faroe Islands (2016), France (2013), Brazil (2013), Uruguay (2013), New Zealand (2013), England and Wales (2014) + Scotland (2014), Luxembourg (2015), the United States of America (starting with Massachusetts in 2004 and growing to 37 states before the 2015 Supreme Court nationwide ruling), Ireland (2015), Colombia (2016), and Finland (starting in 2017).

On May 22, 2015, Ireland became the first nation in the world to legalize same-sex marriage by popular vote. Irish people amended their constitution to OK same-sex marriage by a landslide margin of 62.07% to 37.93%.

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).

On May 14, 2015, same-sex marriage became legal in the Pitcairn Islands, a British Overseas Territory in the South Pacific with a population of 48. On Sept. 22, 2015, the parliament of Jersey (a British Crown Dependency in the Channel Islands) voted 37-4 to legalize same-sex marriage. Jersey has a population of 99,500. On April 26, 2016, the legislature of the Isle of Man (a British Crown Dependency in the Irish Sea) voted 6-3 to legalize same-sex marriage. The Isle of man has a population of 85,888.

Then there's Mexico, the current hotspot of the marriage-equality movement, which is following a pattern similar to the U.S. and Canada but with extra twists and turns.

Same-sex marriage is legal in six states (Chihuahua, Coahuila, Guerrero, Jalisco, Nayarit and Quintana Roo); in Mexico City, a federal district; and in the city of Santiago de Querétaro, capital of Querétaro state.

Any same-sex couple can marry in the other 25 states as well, but only after getting a personalized injunction (amparo) against the civil registry from a judge.

That requires a lawyer, the equivalent of around US$1,000 and a month or more of time.

A June 3, 2015, ruling by the First Chamber of Mexico's Supreme Court of Justice of the Nation requires judges to grant the injunctions -- to individual couples or groups of couples who sue together.

Activists are rapidly implementing a court-based legal strategy, state by state, that will force the remaining 25 states, one by one, to clear the way for same-sex marriages without couples having to get an order from a judge. It involves getting five injunctions per state from federal collegiate courts (there are 253 of them) or from the First Chamber of the federal Supreme Court -- which creates "jurisprudence" on same-sex marriage in a state -- which then can be used to force a state legislature to let same-sex couples marry the normal way.

In the meantime, some states likely will throw in the towel legislatively prior to being forced -- and before that, some states may stop enforcing their ban on same-sex marriage administratively, as Chihuahua, Guerrero, Quintana Roo and the capital city of Querétaro state have done.

(In states or cities where marriage bans have been dropped administratively, a new governor or mayor could reverse the policy, so activists continue to push for law reform there as well. Although in Quintana Roo, the change came after it was determined that the existing marriage law contained no gender restrictions.)

On Jan. 26, 2016, the full Supreme Court unanimously ended the state of Jalisco's ban in a case that likely was one of a kind. Jalisco had revised its marriage laws regarding the minimum age for marriage and, in the process, reiterated in one paragraph that marriage is between a man and a woman. That opened a 30-day window, as with any new law, for an "action of unconstitutionality" to be filed with the full Supreme Court -- and the National Human Rights Commission pounced and prevailed. A similar case from the state of Baja California was rejected on a technicality, and there are no other cases of that sort alive at the moment.

So, for the rest of the states, as of now, activists may have to collect five injunctions (amparos) from federal appeals courts in each state, to achieve jurisprudence in each state, at which point the Supreme Court can move to fully invalidate a state's ban so same-sex couples can marry the way opposite-sex couples do.

Equally likely, though, is that state legislatures will vote to legalize same-sex marriage on their own. That's because when the Supreme Court's First Chamber issued the ruling that requires all judges in Mexico to grant an amparo for any gay couple that wants to marry, it also unequivocally informed the states that same-sex marriage bans are unconstitutional. In addition, the ultimate outcome of activists' amparo-collecting project is not really in doubt. They should prevail everywhere.

As a result, momentum for law reform continues to build among politicians, state and federal human-rights officials, and other voices of authority.

Lastly, to answer a common question: There is no mechanism in Mexico for the Supreme Court's First Chamber or the full court to issue a U.S.-style ruling ending all states' bans at once. You can collect amparos and achieve jurisprudence state by state. Or you can challenge a state's law with an "action of unconstitutionality" within 30 days of its coming into force.

U.S. Indian tribes: There are 566 of them, and they are not covered by the June 26, 2015, U.S. Supreme Court ruling that legalized same-sex marriage nationwide. Twelve tribes have legalized same-sex marriage to date: the Coquille Indian Tribe in Oregon (2009), The Suquamish Tribe in Washington (2011), the Little Traverse Bay Bands of Odawa Indians in Michigan (2013), The Confederated Tribes of the Colville Reservation in Washington (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), the Puyallup Tribe of Indians in Washington (2014), the Tlingit and Haida Indian Tribes in Alaska (2015), the Oneida Tribe in Wisconsin (2015), and the Keweenaw Bay Indian Community in Michigan (2015).

(For the historical record, the remainder of this post is as it appeared early on June 26, 2015 -- the day the U.S. Supreme Court legalized same-sex marriage nationwide. At that moment, 12 states and four territories did not have same-sex marriage, Kansas and Missouri had it only in some counties, and same-sex marriage had been suspended in Alabama. So SCOTUS brought marriage equality to 15 states and three or four territories [American Samoa still needs sorting out].)

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), South Carolina (Nov. 20, 2014), Florida (Jan. 6, 2015), Alabama (Feb. 9, 2015) and Guam (June 8, 2015). 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 and Independence (Nov. 7, 2014). That's 37 states, one territory (there are five), the District of Columbia, and three of Missouri's four largest cities.

(At the moment, same-sex marriage is paused in Alabama due to conflicting rulings from federal courts and the Alabama Supreme Court. Litigation is ongoing. In Kansas, same-sex marriage is not yet happening in all counties, and the state continues to refuse to recognize its own marriages. Litigation is ongoing.)

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 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. Koster appealed that ruling as well. The U.S. Court of Appeals for the 8th Circuit refused to lift a stay that prevents the ruling from having statewide effect. Oral arguments in that appeal were to take place May 12 in Omaha but on April 29 the court canceled them in anticipation of the U.S. Supreme Court's expected nationwide marriage ruling in June.

Bans on same-sex marriage in Arkansas, Louisiana, Mississippi, Nebraska, South Dakota and Texas have been struck down by federal or state courts, but the rulings were stayed for appeal. In Louisiana and Puerto Rico (another of the United States' five inhabited territories), federal courts upheld bans. The rulings were appealed. (On March 20, 2015, Puerto Rico's government reversed course and invited the U.S. Court of Appeals for the 1st Circuit in Boston to strike down its ban.) Oral arguments in cases from Louisiana, Mississippi and Texas took place before the U.S. Court of Appeals for the 5th Circuit in New Orleans on Jan. 9. Journalists exiting the courthouse said they expected a 2-1 ruling in favor of same-sex marriage. Oral arguments in cases from Arkansas, Missouri, Nebraska and South Dakota were scheduled to take place May 12 before the U.S. Court of Appeals for the 8th Circuit in Omaha until the court canceled them on April 29 in anticipation of SCOTUS' June nationwide marriage ruling.

(The six states not yet mentioned: Bans in Kentucky, Michigan, Ohio and Tennessee were upheld by the U.S. Court of Appeals for the 6th Circuit in Cincinnati. These are the four cases that went to the U.S. Supreme Court and that are expected to result in a ruling for nationwide marriage equality this month. North Dakota was sued twice but the U.S. district court paused the cases to wait for SCOTUS. Georgia also was sued, but there has been no movement in the case lately.)

As for the other three inhabited U.S. territories: The Northern Mariana Islands (population 54,000) are required to let same-sex couples marry due to binding precedent in the 9th Circuit. However, no couple has sought to marry. There also have been no same-sex-marriage moves in the U.S. Virgin Islands (population 105,000), which are in the 3rd Circuit (where all states have same-sex marriage but achieved it in ways that did not involve a circuit-appeals-court ruling). American Samoa (population 55,000) has a unique legal situation. Lambda Legal recently tried to explain it here.

Indian tribes: Same-sex marriage also has been explicitly legalized within the Coquille Indian Tribe in Oregon (2009), The Suquamish Tribe in Washington (2011), the Little Traverse Bay Bands of Odawa Indians in Michigan (2013), The Confederated Tribes of the Colville Reservation in Washington (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), the Puyallup Tribe of Indians in Washington (2014), the Tlingit and Haida Indian Tribes in Alaska (2015), the Oneida Tribe in Wisconsin (2015), and the Keweenaw Bay Indian Community in Michigan (2015).

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 counties eventually were forced to stop issuing gay licenses by the state Supreme Court and 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 appeals from other states located in the 10th Circuit.

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 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.