Thursday, May 26, 2016

Where is same-sex marriage legal?

» Updated May 26, 2016
» Go to paragraph five for the latest from red-hot Mexico
Same-sex marriage is legal in the Netherlands (2001), Belgium (2003), Canada (2003-2005), Spain (2005), South Africa (2006), Norway (2009), Sweden (2009), Argentina (2010), Iceland (2010), Portugal (2010), Mexico (2010-2016; see section below), 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.
» Mexico's wild ride to marriage equality
Marriage Equality Mexico leader Alex Alí Méndez Díaz
Mexico is the current hotspot of the marriage-equality movement and requires extensive treatment to wrap one's head around what's happening.

As was the case in the U.S., Mexico's legalization of same-sex marriage is proceeding state by state but unlike in the U.S., there is no possibility for a single ruling from the highest court that will overturn same-sex marriage bans nationwide. Even the Supreme Court of Justice of the Nation (SCJN) will have to go state by state.

Mexico has 31 states plus the federal entity Mexico City. Marriage equality has arrived in Mexico City and in nine states -- via three different routes: Legislative legalization, a Supreme Court ruling, and state administrative decisions to stop enforcing their ban. Those states are:

Campeche (legislative)
Chihuahua (administrative)
Coahuila (legislative)
Colima (legislative)
Guerrero (administrative)
Jalisco (SCJN ruling)
Michoacán (legislative)
Nayarit (legislative)
Quintana Roo (administrative)
+ Mexico City (legislative)
+ Querétaro, capital city of Querétaro state (administrative)
- Sonora was briefly on this list, but now it's not

But it's all much more interesting than just this. Same-sex couples actually can get married right now in Mexico's other 22 states as well, as a result of a June 3, 2015, ruling by the SCJN's First Chamber. But it's complicated.

What the ruling said is that any same-sex couple who wants to marry can go to a federal judge and seek an injunction (known as an amparo) against the Civil Registry allowing them to marry -- and the SCJN ordered that judges must issue the injunction. Groups of couples also can seek a "collective amparo."

This process works, and couples do use it, but it's slow and expensive. A couple needs a month or more of time and the equivalent of around $1,000 U.S. to pay a lawyer to help them.

As Mexico's marriage-equality movement barrels ahead, more states will see the freedom to marry (without couples having to get an amparo), probably several more states in the near future. In each state, it will happen one of four ways:

1. The state congress will legalize same-sex marriage.

2. The state government will decide to stop enforcing its ban on same-sex marriage. (While this gets the job done, it could be reversed by a new administration, so it's not activists' preferred route.)

3. The Supreme Court will kill a state's ban via the surprising route that happened in Jalisco, and which may happen in Chiapas and Puebla, as well.

Here's how that works. When any law is passed in Mexico and takes effect, there is a 30-day window for specific governmental entities to challenge that law with an "action of unconstitutionality" filed with the full Supreme Court. What Jalisco did is change the legal age for marriage and, in the process, in one sentence of the revised law, it mentioned that marriage is man-woman. This qualified that man-woman language as a "new" law that could be challenged during the 30 days after it took effect. The National Human Rights Commission filed an action of unconstitutionality against the language and the SCJN struck down Jalisco's ban on same-sex marriage in a unanimous ruling with immediate effect.

The states of Chiapas and Puebla also recently altered their marriage laws -- again not specifically having to do with marriage being between a man and a woman -- and made the same "mistake" (or perhaps deliberate decision) that Jalisco did. They mentioned in the revised law that marriage is man-woman. Lawsuits were quickly filed with the Supreme Court and are pending.

4. A grand project of the organization Marriage Equality Mexico -- a project that led to that 2015 SCJN ruling telling judges nationwide that they had to approve all marriage-equality amparos -- is highly likely to bear fruit state by state. It's not easy to understand, so let's keep it simple:

When one of Mexico's 253 second-level federal appeals courts or the First Chamber of the federal Supreme Court rules that an existing law is unconstitutional in five separate amparo rulings in a row, and uses identical language in each ruling, that creates legal "jurisprudence" against that law -- and jurisprudence can then be used to force a state congress to eliminate the law -- in this case, a ban on same-sex marriage.

It's a strange process, for sure, but it's ongoing nationwide and several states are well on the way to arriving at the magic number of five identical rulings in a row from higher-level courts. When a state gets there, the Supreme Court then has the power to move directly against a state's congress/legislature, and surely will do so.

The mastermind of this massive undertaking is a young activist lawyer named Alex Alí Méndez Díaz and he works on the project with cooperating local lawyers nationwide.

And that's Mexico's march toward marriage equality in a nutshell.

But one last thing: Why is all this snowballing? Mostly, it's because when the federal Supreme Court's First Chamber issued that 2015 ruling that requires all judges to issue an amparo injunction to any same-sex couple that wants to marry, the Supreme Court also informed the nation that any ban on same-sex marriage is unconstitutional and is ultimately doomed.

So, the writing is on the wall and politicians, human-rights officials and judges all know it and are falling in line.

ADDENDUM: On May 17, 2016, Mexican President Enrique Peña Nieto proposed amending Mexico's Constitution to make marriage equality the law of the land and sent his proposal to Congress. Amending the Constitution requires a two-thirds vote by members present the day of the vote in the Chamber of Deputies and the Senate of the Republic -- followed by ratification by the state congresses of at least 16 of Mexico's 31 states. Mexico City doesn't get to vote on ratification. It is not out of the question that this could happen. A May 20, 2016, opinion poll found that a whopping 65 percent of Mexicans support "approving same-sex marriage at the national level."

» 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).

»  What the U.S. looked like the day of the Supreme Court nationwide ruling

(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.
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