Same-sex marriage

We the People do ordain and establish this US Constitution

Standards of review

Rational basis review Intermediate scrutiny Strict scrutiny

Other legal theories

Substantive due process State action doctrine

Amendments

I - II - III - IV - V - XIV

Defining moments in law

Griswold v. Connecticut Roe v. Wade Texas v. Johnson Edwards v. Aguillard Schenck v. United States

Interpretation

Originalism Purposive Responsive Textualism

Issues

Civil rights Bill of Rights (United States) Gay rights Commerce rights Free speech v - t - e

What Is Same-Sex Marriage?

Marriage, of course, is the religious sacrament that joins two persons upon the (sometimes pretextual) basis of love, to constitute a new family. At common law, certain rights and privileges attach to marriage: the right to inherit property flows to one spouse, as does the right of hospital visitation, the right to sue under wrongful death statutes, etc., etc. Thus, marriage encapsulates more than a poetic union. Rights and responsibilities attach as well.

Same-sex marriage is the union of two individuals of the same sex in a marital relationship, with the legal incidents and trappings allotted to this union. Same-sex marriage is rare indeed; more common is a "civil union" between partners of the same sex, which includes these all-important legal trappings, without the titled "marriage" and the religious overtones so indicated. Since the news media and partisan groups treat both of these topics as a single issue, this article will do the same. Let us acknowledge at the outset, though, that conflating civil unions with marriage, and the rights allotted by marriage with the institution of marriage, is erroneous, and a common rhetorical trick used by far-right commentators. This fallacy will be treated in "Characterizing the Opposition," infra.

Status Update

Gay marriage is a contentious issue in the United States, with only one state, Massachusetts, allowing actual marriages, and several others allowing legal unions under various other names which carry the same effect as marriage. Other states have explicitly banned gay marriage, while the issue remains open in others. Canada, by contrast, legalized gay marriage in the province of Ontario in 2003. Other provinces shortly followed suit, and it was legalized across the country in 2005, surviving a second vote called by the Conservative government of Stephen Harper in 2006, who following the vote declared that the he "[doesn't] see reopening this question in the future."

Several other countries have legalized gay marriage, including The Netherlands, Belgium, South Africa and Spain, with a number of others allowing civil unions to varying degrees.

Some churches perform ceremonies joining persons of the same sex in some kind of union; in Unitarian-Universalist Association|some of them, these can be explicitely called "marriages" while others use language such as "service to give blessings to God for their relationship". As with any other religious ceremony, these have legal significance only to the extent the government authorizes; that is, in most states, they have no legal significance whatsoever.

See Also

• Gay rights
• Lawrence v. Texas
• Romer v. Evans