Same-Sex Marriage: A Selective Bibliography of the Legal Literature

originally published September 2002

last updated December 12, 2007

Introduction
Other Bibliographies
ALR Annotations
Web-based Resources
Books
Articles Supporting Same-Sex Marriage
Articles Opposing Same-Sex Marriage

Other Articles
DOMA and Choice of Law
Federal Marriage Amendment
Selected Jurisdictions in the United States
Selected Foreign Jurisdictions
International Aspects

INTRODUCTION

The movement to open civil marriage to same-sex couples achieved its first temporary success in 1993 with the decision of the Hawaii Supreme Court that the restriction of marriage to opposite-sex couples would be presumed unconstitutional unless the state could demonstrate that it furthered a compelling state interest. In response to this decision the state constitution was amended to allow the legislature to preserve that restriction. A similar court decision in Alaska in 1998 led to an even stronger constitutional amendment, itself defining marriage as between one man and one woman. In further reaction to the Hawaii case, the federal Defense of Marriage Act (1996) provided that no state would be required to recognize a same-sex marriage from another state, and also defined marriage for federal-law purposes as opposite-sex. The majority of the states also passed their own "marriage protection acts." (In November 2004, eleven more U.S. states amended their constitutions to prohibit same-sex marriage.)

In Vermont, after that state's Supreme Court held in 1999 that the state must extend to same- sex couples the same benefits that married couples receive, the legislature in 2000 created the status of "civil union" to fulfill that mandate. Connecticut adopted a similar civil union law in 2005.

In 2001, the Netherlands became the first country to open civil marriage to same-sex couples. (Belgium became the second in 2003.) In 2002 through 2004, courts in six Canadian provinces held that the opposite-sex definition of marriage was contrary to Canada's Charter of Rights, and in 2005 federal legislation extended same-sex marriage to all of Canada. Same-sex marriage was also legalized in Spain in 2005 , and in South Africa in 2006.

In November 2003, the Massachusetts Supreme Judicial Court held that excluding same-sex couples from the benefits of civil marriage violated the state constitution, and in February 2004 that court further held that a "civil union" law would not be sufficient, and on May 17, 2004 Massachusetts became the first state in the United States where same-sex marriage per se is legal.

In July 2006, opposite-sex definitions of marriage were upheld by the highest courts of both New York and Washington.

In October 2006, the New Jersey Supreme Court held that same-sex couples were entitled to the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The Legislature complied with that decision by enacting a civil union act in December 2006.

The journal articles included in this bibliography are from 1997 forward. Arrangement is alphabetic, by author's last name, except that symposium issues are listed by symposium title only, without listing the individual articles. Articles by student authors are excluded. Books and articles about particular jurisdictions are listed under those jurisdictions rather than in the general books and articles sections. The arrangement of entries under each jurisdiction is chronological, with undated items given first alphabetically.

OTHER BIBLIOGRAPHIES

American Association of Law Libraries, Social Responsibilities Special Interest Section, Standing Committee on Lesbian and Gay Issues, Sexual Orientation and the Law: A Research Bibliography, Selectively Annotating Legal Literature through 2005 (William S. Hein & Co., 2006) (AALL Publications Series No.74). Part I reprints a bibliography covering 1969-1993, originally published in Law Library Journal 86:1-103 (1994), in which articles on marriage are at pages 37-40. Part II, Annotated Update covering Sept.1993 through Dec.2005, has thoroughly annotated entries 507-645 on same-sex marriage and entries 207-238 on full faith and credit/DOMA.

Lynn D. Wardle, "A Critical Analysis of Constitutional Claims for Same-Sex Marriage," Brigham Young University Law Review, 1996:1-101, at 96-100, lists law review articles from 1970-1975 and 1990-June 1995, categorized as pro or con same-sex marriage.

Paul Axel-Lute, "Same-Sex Marriage" (Rutgers-Newark Law Library, Pathfinder Series, Oct.1996), http://www-rci.rutgers.edu/~axellute/ssm.htm, lists articles, statutes, and cases through 1996.

Daniel J. Jacobs, "Same-Sex Marriages: a Selective Bibliography of Legal and Social Aspects," The Record of the Association of the Bar of the City of New York, 51:687-696 (Oct.1996).

Justin W. Starr's compilation, "Law Review Articles Citing Baker v. Vermont," BYU Journal of Public Law, 18:353-370 (2004) (an appendix to an article by Lynn D. Wardle), includes citations to some articles from 2001-2003 not included here.

ALR ANNOTATIONS

Annotation: "Marriage Between Persons of Same Sex," 81 ALR 5th 1-40 (2000) (by Robin Cheryl Miller). This annotation, updated by an annual pocket supplement,provides citations and lengthy summaries of caselaw from the United States concerning the validity of same-sex marriages.

Annotation: "Marriage Between Persons of the Same Sex--United States and Canadian Cases," 1 ALR Fed 2d 1 (2005) (by Robin Cheryl Miller and Jason Binimow) .

WEB-BASED RESOURCES

American Center for Law and Justice, "Protecting Marriage," http://www.aclj.org/Issues/InDepth.aspx?ID=59

American Civil Liberties Union, "Lesbian & Gay Rights; Same-Sex Relationships," http://www.aclu.org/LesbianGayRights/LesbianGayRightslist.cfm?c=101, includes current news and legal documents.

"Casebook on Sexual Orientation and the Law," by Prof. Dan Pinello, John Jay College of Criminal Justice: Part III, "Lesbian and Gay Family Issues Not Involving Child Custody, Visitation, Adoption, and Foster Care, " at http://www.danpinello.com/Family2.htm, includes edited texts of cases relating to same sex marriage.

The Data-Lounge, "Marriage & Domestic Partnership," http://www.datalounge.com/datalounge/issues/index.html?storyline=301

The Williams Project, UCLA School of Law, "Issues," http://www1.law.ucla.edu/~williamsproj/issues/index.html (including "Economics of Same-Sex Marriage").

Institute for Marriage and Public Policy, http://www.marriagedebate.com/

Interfaith Working Group, "Religious Support for Equal Marriage Rights," http://iwgonline.org/marriage

International Gay & Lesbian Human Rights Commission, "Where You Can Marry: Global Summary of Registered Partnership, Domestic Partnership, and Marriage Laws"(November 2003), http://www.iglhrc.org/site/iglhrc/content.php?type=1&id=91

Heritage Foundation, "Marriage in the 50 States," http://www.heritage.org/Research/Family/Marriage50States.cfm

Lambda Legal, "Marriage Project" page, http://www.lambdalegal.org/cgi-bin/iowa/issues/record2?record=9

Marriage Watch, http://www.marriagewatch.org a service of the Marriage Law Project, Columbus School of Law, Catholic University of America. Includes, at http://www.marriagewatch.org/states/doma.htm , texts of all state "defense of marriage" or "marriage protection" acts.

National Center for Lesbian Rights, Family Law Project, http://www.nclrights.org/projects/familylaw.htm

National Conference of State Legislatures, "Same Sex Marriage" page, http://www.ncsl.org/programs/cyf/samesex.htm

National Gay & Lesbian Task Force, "Partnership Recognition" page, http://www.thetaskforce.org/theissues/issue.cfm?issueID=14

Partners Task Force for Gay & Lesbian Couples, "Legal Marriage Report: Global Status of Legal Marriage," http://www.buddybuddy. com/mar-repo.html

"Same-Sex Marriages and Civil Unions," http://www.religioustolerance.org/hom_marr.htm (Ontario Consultants on Religious Tolerance).

BOOKS

Babst, Gordon Albert, Liberal Constitutionalism, Marriage, and Sexual Orientation: A Contemporary Case for Dis-establishment (Peter Lang, 2002) (Teaching Texts in Law and Politics, v. 15) [call no. KF 539.B33 ]

Cahill, Sean, Same-Sex Marriage in the United States: Focus on the Facts (Rowman & Littlefield, 2004)

Cantor, Donald J., et al., Same-Sex Marriage: The Legal and Psychological Evolution in America (Wesleyan University Press, forthcoming April 2006)

Chauncey, George, Why Marriage? The History Shaping Today's Debate Over Gay Equality (Basic Books, 2004)

Cretney, Stephen Michael, Same-Sex Relationships: From 'Odious Crime' to 'Gay Marriage' (Oxford University Press, 2006) (Clarendon Law Lectures)

Defense of Marriage: Does It Need Defending?, edited by James Perkins (Nova Science, 2004)

Depuis, Martin, Same-Sex Marriage, Legal Mobilization, and the Politics of Rights (Peter Lang, 2002) (Teaching Texts in Law and Politics, v. 17)

Eskridge, William N., Jr., The Case for Same-Sex Marriage: from Sexual Liberty to Civilized Commitment (Free Press, 1996). [call no. HQ 76.3,U5E85 ]

Eskridge, William N., Gay Marriage: For Better or For Worse? What We've Learned from the Evidence. (Oxford Univ. Press, 2006)

Gerstmann, Evan, Same-Sex Marriage and the Constitution (Cambridge Univ. Press, 2004) [ call no. KF 539.G47 ]

Goldberg-Hiller, Jonathan, The Limits to Union: Same-Sex Marriage and the Politics of Civil Rights (Univ. of Michigan Press, 2002) [ call no. HQ 1034.U5 G65 ]

Gozemba, Patricia A., History of America's First Legal Same-Sex Marriages (Beacon Press, 2007) [ call no. HQ 1034.U5G69 ]

Koppelman, Andrew, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press, 2006)

Legal Recognition of Same-Sex Partnerships [Conference] (1999 : London). The Legal Recognition of Same-Sex Partnerships : a Study of National, European and International law / edited by Robert Wintemute and Mads Andenaes ( Hart Pub., 2001) [ call no. K699 .A6 1999 ]

Marriage and Same-Sex Unions: a Debate / edited by Lynn D. Wardle et al. (Praeger, 2003). [ call no. HQ 1034.U5 M37 ]

Mello, Michael, Legalizing Gay Marriage (Temple University Press, 2004) [ call no. HQ1034.U5 M45 2004 ]

Merin, Yuval, Equality for Same-Sex Couples : the Legal Recognition of Gay Partnerships in Europe and the United States ( University of Chicago Press, 2002) [ call no. K699 .M37 2002 ] Includes extensive bibliography, and English translations of Scandinavian registered partnerships laws and of Netherlands law opening civil marriage to same sex couples.

Pierceson, Jason, Courts, Liberalism and Rights: Gay Law and Politics in the United States and Canada (Temple University Press, 2005) [ call no. KF4754.5 .P54 2005 ] Includes chapters on same-sex marriage.

Pinello, Daniel R., America's Struggle for Same-Sex Marriage (Cambridge University Press, 2006).

Rosenfeld, Michael J., The Age of Independence: Interracial Unions, Same-Sex Unions, and the Changing American Family (Harvard University Press, March 2007).

Same-Sex Marriage : Pro and Con : A Reader / [edited by] Andrew Sullivan with research assistance by Joseph Landau (Vintage Books, 1997) [call no. HQ76.25 .F677 1997 ]

Same-Sex Marriage : The Moral and Legal Debate / edited by Robert M. Baird and Stuart E. Rosenbaum (Prometheus Books, 1997) [ call no. HQ76.3.U5 S33 1997 ]

Snyder, R. Claire., Gay Marriage and Democracy: Equality for All (Rowman & Littlefield, 2006)

Strasser, Mark, The Challenge of Same-Sex Marriage : Federalist Principles and Constitutional Protections (Praeger, 1999) [ call no. KF539 .S768 1999 ]

Strasser, Mark, Legally Wed : Same-Sex Marriage and the Constitution (Cornell University Press, 1997) [call no. KF539 .S77 1997 ]

Strasser, Mark, On Same-Sex Marriage, Civil Unions, and the Rule of Law: Constitutional Interpretation at the Crossroads (Praeger, Oct. 2002) [ call no. KF539 .S769 2002 ]

Sullivan, Andrew, Virtually Normal: an Argument about Homosexuality (Knopf, 1995) [ call no. HQ 76.25.S85 ]. At pages 178-185, discusses equal access to civil marriage as centerpiece of a politics of homosexuality.

Wolfson, Evan, Why Marriage Matters: America, Equality, and Gay People's Right To Marry (Simon & Schuster, 2004) [ call no. HQ1034.U5 W65 2004 ]

ARTICLES SUPPORTING SAME-SEX MARRIAGE

Ball, Carlos A., "The Backlash Thesis and Same-Sex Marriage: Learning from Brown v. Board of Education and its Aftermath," William & Mary Bill of Rights Journal, 14:1493-1538 (2006)

Ball, Carlos A., "Moral Foundations for a Discourse on Same-Sex Marriage: Looking Beyond Political Liberalism," Georgetown Law Journal, 85:1871-1943 (June 1997)

Ball, Carlos A., "The Positive in the Fundamental Right to Marry: Same-Sex Marriage in the Aftermath of Lawrence v. Texas, Minnesota Law Review, 88:1184-1232 (2004)

Becker, Mary, "Family Law in the Secular State and Restrictions on Same-Sex Marriage: Two Are Better Than One," University of Illinois Law Review, 2001:1-56 (Winter 2001)

Bonauto, Mary L., "Civil Marriage as a Locus of Civil Rights Struggles," Human Rights, 30(3):3-7 (Summer 2003) (American Bar Association, Section of Individual Rights and Responsibilities)

Chartier, Gary, "Natural Law, Same-Sex Marriage, and the Politics of Virtue," UCLA Law Review , 48:1593-1632 (Aug.2001)

Cooper, Elizabeth B. "Who Needs Marriage?: Equality and the Role of the State. Journal of Law & Family Studies, 8:325-362 (2006)

Cox, Barbara J., "'The Little Project': From Alternative Families to Domestic Partnerships to Same-Sex Marriage," Wisconsin Women's Law Journal, 15:77-92 (2000)

Cruz, David B. " 'Just Don't Call It Marriage': the First Amendment and Marriage as an Expressive Resource," Southern California Law Review, 74:925-1026 (May 2001)

Culhane, John G., "Uprooting the Arguments Against Same-Sex Marriage," Cardozo Law Review, 20:1119-1211 (1999)

Donovan, James, "Rock-Salting the Slippery Slope: Why Same-Sex Marriage is Not a Commitment to Polygamous Marriage," Northern Kentucky Law Review, 29:521-590 (2002)

Eskridge, William N., Jr., "Comparative Law and the Same-Sex Marriage Debate: A Step-by-Step Approach Toward State Recognition," McGeorge Law Review, 31:641-672 (Spring 2000)

Eskridge, William N., Jr., "Equality Practice: Liberal Reflections on the Jurisprudence of Civil Unions," Albany Law Review, 64:853-881 (2001)

Freeman, M.D.A., "Not Such a Queer Idea: Is There a Case for Same Sex Marriage?" Journal of Applied Philosophy, 16:1-17 (1999)

Goldberg, Suzanne B., "A Historical Guide to the Future of Marriage for Same-Sex Couples," Columbia Journal of Gender & Law, 15:249-272 (2006). Includes Brief of Professors of History & Family Law as Amici Curiae in Support of Plaintiffs-Respondents in Hernandez v. Robles (New York Supreme Court, July 28, 2005)

Harrison, Jack B., "The Future of Same-Sex Marriage After Lawrence v. Texas and the Election of 2004," University of Dayton Law Review, 30:313-338 (2005)

Katz, Pamela S., "The Case for Legal Recognition of Same-Sex Marriage," Journal of Law & Policy, 8:61-106 (1999)

Koons, Judith E. " 'Just' Married?: Same-Sex Marriage and a History of Family Plurality," Michigan Journal of Gender & Law, 12:1-85 (2005).

Koppelman, Andrew, "Is Marriage Inherently Heterosexual?" American Journal of Jurisprudence, 42:51-95 (1997)

Kuykendall, Mae, "Resistance to Same-Sex Marriage as a Story about Language: Linguistic Failure and the Priority of a Living Language," Harvard Civil Rights-Civil Liberties Law Review, 34:385-435 (1999)

Landers, Renee M., "A Marriage of Principles: the Relevance of Federal Precedent and International Sources of Law in Analyzing Claims for a Right to Same-Sex Marriage," New England Law Review, 41:683-710 (2007).

Lipkin, Robert Justin, "The Harm of Same-Sex Marriage: Real or Imagined?" 11 Widener Law Review, 11:277-308 (2005)

Lombino, Richard M., II, "Gay Marriage: Equality Matters," Southern California Review of Law & Women's Studies, 14:3-23 (2004).

Montgomery, Jason, "An Examination of Same-Sex Marriage and the Ramifications of Lawrence v. Texas," Kansas Journal of Law & Public Policy, 14:687-707 (2005)

Patterson, Charlotte J., "Same-Sex Marriage and the Interests of Children...," Virginia Journal of Social Policy & Law, 9:345-351 (2001)

Perry, Michael J., "Christians, the Bible, and Same-Sex Unions: An Argument for Political Self-Restraint," Wake Forest Law Review, 36:449-485 (Summer 2001)

Ross, Josephine, "Riddle for our Times: The Continued Refusal to Apply the Miscegenation Analogy to Same-Sex Marriage," Rutgers Law Review, 54:999-1019 (2002)

Ross, Josephine, "Sex, Marriage, and History: Analyzing the Continued Resistance to Same-Sex Marriage," SMU Law Review 55:1657-1681 (2002)

Samar, Vincent J., "Privacy and the Debate Over Same-Sex Marriage Versus Unions," DePaul Law Review, 54:783-804 (2005).

Sedler, Robert A., "The Constitution Should Protect the Right to Same-Sex Marriage," Wayne Law Review, 49:975-1005 (2004)

Silverman, Lewis A., "Suffer the Little Children: Justifying Same-Sex Marriage from the Perspective of a Child of the Union," West Virginia Law Review, 102:411-458 (Winter 1999)

Sparling, Tobin A., "All in the Family: Recognizing the Unifying Potential of Same-Sex Marriage," Law & Sexuality, 10:187-209 (2001)

Strassberg, Maura L., "Distinctions of Form or Substance: Monogamy, Polygamy and Same-Sex Marriage," North Carolina Law Review, 75:1501-1624 (June 1997)

Strasser, Mark, "Lawrence and Same-Sex Marriage bans: On Constitutional Interpretation and Sophistical Rhetoric," Brooklyn Law Review, 69:1003-1036 (2004)

Strasser, Mark, "Loving in the New Millennium: On Equal Protection and the Right to Marry," University of Chicago Law School Roundtable, 7:61-90 (2000)

Strasser, Mark, "Natural Law and Same-Sex Marriage," DePaul Law Review, 48:51-81 (Fall 1998)

Strasser, Mark, "Same-Sex Marriage Referenda and the Constitution: on Hunter, Romer, and Electoral Process Guarantees," Albany Law Review, 64:949-981 (Spring 2001)

Strasser, Mark, "Same-Sex Marriages and Civil Unions: On Meaning, Free Exercise, and Constitutional Guarantees," Loyola University of Chicago Law Journal, 33:597-630 (2002)

Strasser, Mark, "Toleration, Approval, and the Right to Marry: on Constitutional Limitations and Preferential Treatment," Loyola of Los Angeles Law Review, 35:65-99 (Nov.2001)

Strasser, Mark, "Lawrence, Mill, and Same-Sex Relationships: On Values, Valuing, and the Constitution," Southern California Interdisciplinary Law Journal, 15:285-306 (2006).

"Symposium on Same-Sex Marriage, Civil Unions, and Domestic Partnerships," Capital University Law Review, 30:221-408 (2002) (six articles)

Symposium, "The Right to Marry: Making the Case to Go Forward," Widener Law Journal, 13:691-877 (2004) (seven articles)

Vetri, Dominick, "The Gay Codes: Federal & State Laws Excluding Gay & Lesbian Families," Willamette Law Review, 41:881-940 (2005).

Volokh, Eugene, "Same-Sex Marriage and Slippery Slopes," Hofstra Law Review, 33:1155-1201 (2005).

Wald, Michael S., "Same-Sex Couple Marriage: A Family Policy Perspective," Virginia Journal of Social Policy & Law, 9:345-351 (2001)

Wedgwood, Ralph, "The Fundamental Argument for Same-Sex Marriage," Journal of Political Philosophy, 7:225-242 (Sept.1999)

Widiss, Deborah A., Elizabeth L. Rosenblatt and Douglas NeJaime, "Exposing Sex Stereotypes in Recent Same-Sex Marriage Jurisprudence," Harvard Jornal of Law & Gender, 30:461-505 (2007).

Wolfson, Evan, "For Richer, For Poorer: Same-Sex Couples and the Freedom to Marry as a Civil Right," DMI E-Journal, http://www.drummajorinstitute.org/plugin/template/dmi/30/949 (June 2003) (Drum Major Institute for Public Policy)

Wriggins, Jennifer, "Marriage Law and Family Law: Autonomy, Interdependence, and Couples of the Same Gender," Boston College Law Review, 41:265-325 (March 2000)

ARTICLES OPPOSING SAME-SEX MARRIAGE

Bradley, Gerard V., "Same-Sex Marriage: Our Final Answer?" Notre Dame Journal of Law, Ethics & Public Policy, 14:729-752 (2000)

Coolidge, David Orgon; & Duncan, William C., "Reaffirming Marriage: A Presidential Priority," Harvard Journal of Law & Public Policy, 24:623-651 (Spring 2001)

Coolidge, David Orgon, "Same-Sex Marriage? Baehr v. Miike and the Meaning of Marriage," South Texas Law Review, 38:1-119 (March 1997).

Dent, George W. Jr., "The Defense of Traditional Marriage," The Journal of Law and Politics, 15:581-644 (Fall 1999)

Duncan, William C. "Avoidance Strategy: Same-Sex Marriage Litigation and the Federal Courts," Campbell Law Review, 29:29-46 (2006).

Duncan, William C., "Whither Marriage in the Law?" Regent University Law Review, 15:119-128 (2003)

Finnis, John, "The Good of Marriage and the Morality of Sexual Relations: Some Philosophical and Historical Observations," American Journal of Jurisprudence, 42:97-134 (1997)

Gallagher, Maggie, "What Is Marriage For? The Public Purposes of Marriage Law," Louisiana Law Review, 62:773-791 (2002)

Graglia, Lino A., "Single-Sex 'Marriage': the Role of the Courts," Brigham Young Univ. Law Review, 2001:1013-1021

Lee, Patrick; & George, Robert P., "What Sex Can Be: Self- Alienation, Illusion, or One-Flesh Union," American Journal of Jurisprudence, 42:135-157 (1997)

Reid, Eric, "Assessing and Responding to Same-Sex "Marriage" in Light of Natural Law," Georgetown Journal of Law & Public Policy, 3:523-539 (2005)

Schowengerdt, Dale M., "Defending Marriage: A Litigation Strategy to Oppose Same-Sex 'Marriage'," Regent University Law Review, 14:487-510(2002)

Spaht, Katherine Shaw, "Revolution and Counter-Revolution: the Future of Marriage in the Law," Loyola Law Review, 49:1-78 (2003) (disccusses same-sex marriage at pages 19-28, 46-48)

Stewart, Monte Neil, "Genderless Marriage, Institutional Realities, and Judicial Elision," Duke Journal of Constititutional Law & Public Policy, 1:3-78 (2006)

Stewart, Monte Neil, "Judicial Redefinition of Marriage," Canadian Journal of Family Law, 21:11-132 (2004), available at http://www.manwomanmarriage.org/jrm/pdf/jrm.pdf

Stewart, Monte Neil and William C. Duncan, "Marriage and the Betrayal of Perez and Loving," BYU Law Review, 2005:555-595, available at http://www.manwomanmarriage.org/jrm/pdf/Marriage_Betrayal_of_Perez.pdf

"Symposium: Law and the Politics of Marriage: Loving v. Virginia After Thirty Years," B.Y.U. Journal of Public Law, 12:201-332 (1998) (five articles)

"Symposium: Law and the Politics of Marriage: Loving v. Virginia After Thirty Years," Catholic University Law Review, 47:1207-1325 (Summer 1998) (four articles)

"Symposium: Moral Realism and the Renaissance of Traditional Marriage," Regent University Law Review, 17:185-310 (2004-2005) (seven articles)

United States Senate, Republican Policy Committee, "The Threat to Marriage from the Courts," http://rpc.senate.gov/releases/2003/jd072903.pdf (July 29, 2003)

Wardle, Lynn D., "Legal Claims for Same-Sex Marriage: Efforts to Legitimate a Retreat from Marriage by Redefining Marriage," South Texas Law Review, 39:735-768 (June 1998)

Wardle, Lynn D. , "'Multiply and Replenish': Considering Same-Sex Marriage in Light of State Interests in Marital Procreation," Harvard Journal of Law & Public Policy, 24:771-814 (Summer2001)

Wardle, Lynn D., "What is Marriage?" Whittier Journal of Child & Family Advocacy, 6:53-103 (2006).

Wilkins, Richard G., "The Constitutionality of Legal Preferences for Heterosexual Marriage", Regent University Law Review, 16:121-137 (2003-2004).

DEFENSE OF MARRIAGE ACT AND CHOICE OF LAW

Legislative materials

"Defense of Marriage Act," Pub. L. 104-199, 110 Stat. 2419 (approved Sept.21,1996) (codified at 1 U.S.C. §7, 28 U.S.C. §1738c) Enrolled bill: http://thomas.loc.gov/cgi-bin/query/z?c104:H.R.3396.ENR: (For legislative history of DOMA, see my earlier pathfinder "Same Sex Marriage" (1996) at http://www-rci.rutgers.edu/~axellute/ssm.htm#doma)

"Marriage Protection Act of 2003," H.R. 3313, 108th Cong. (introduced Oct.16,2003 by Rep. Hostettler), would prohibit federal court review of questions under DOMA.

"Marriage Protection Act of 2007," H.R. 724, 110th Congress (introduced Jan.30,2007 by Rep. Burton), would prohibit federal court review of validity or interpretation of DOMA.

"State Regulation of Marriage is Appropriate Act," H.R. 2677, 108th Cong. (introduced July 9, 2003 by Rep. Frank), would repeal 1 U.S.C. §7.

Federal Court Decisions

In re Kandu, 315 B.R. 123,(Bkrcy., W.D. Wash. Aug.17,2004), opinion available on MarriageWatch website at http://marriagelaw.cua.edu/cases/wa/kandu/document_coffin_20040818.pdf. Rejecting various constitutional challenges to DOMA, Judge Paul B. Snyder of the U.S. Bankruptcy Court for the Western District of Washington dismissed a joint bankruptcy petition by two women, U.S. citizens, who had been married in British Columbia.

Smelt v. County of Orange, 374 F.Supp.2d 861 (C.D. Cal. June 16, 2005), opinion available on Alliance Defense Fund website at http://www.telladf.org/UserDocs/SmeltOpinion.pdf. Held that §3 of DOMA is constitutional; plaintiffs lacked standing to challenge §2 of DOMA; and abstained from deciding constitutionality of California's man-woman marriage statute pending completion of review in state courts. Affirmed in part, vacated in part, by:

Smelt v. County of Orange, 447 F.3d 673, (9th Cir. May 5, 2006), cert. denied by U.S.Supreme Court, Oct.10,2006. Abstained from deciding federal constitutional challenge to Calif. Family Code, and found plaintiff lacked standing to challenge federal Defense of Marriage Act.

Books and Articles

Batts, Deborah A., "Introduction: Repeal DOMA," Human Rights, 30(3):2 (Summer 2003) (American Bar Association, Section of Individual Rights and Responsibilities)

Cox, Stanley E.,"Nine Questions About Same-Sex Marriage Conflicts," New England Law Review, 40:361-408 (2006)

Fruehwald, Scott, "Choice of Law and Same-Sex Marriage," Florida Law Review, 51:799-850 (Dec.1999).

Gardina, Jackie, "The Perfect Storm: Bankruptcy, Choice of Law, and Same-Sex Marriage." Boston University Law Review, 86:881-930 (2006).

Gerhardt, Michael J., "The Constitutional Limits to Court-Stripping," Lewis & Clark Law Review, 9:347-362 (2005). Argues that the proposed Marriage Protection Act (supra) is unconstitutional. (See also companion article by Redish.)

Graham, Kathy T., "Same-Sex Unions and Conflicts of Law: When 'I Do' May be Interpreted as 'No, You Didn't!'," Whittier Journal of Child & Family Advocacy, 3:231-283 (2004)

Kersch, Ken I., "Full Faith and Credit for Same-Sex Marriages?" Political Science Quarterly, 112:117-136 (Spring 1997)

Koppelman, Andrew, "Dumb and DOMA: Why the Defense of Marriage Act is Unconstitutional," Iowa Law Review, 83:1-33 (Oct.1997)

Koppelman, Andrew, "Same-Sex Marriage, Choice of Law, and Public Policy," Texas Law Review, 76:921-1001 (April 1998).

Koppelman, Andrew, "Interstate Recognition of Same-Sex Marriages and Civil Unions: a Handbook for Judges," University of Pennsylvania Law Review, 153: 2143-2194 (2005). (part of Symposium, "Current Debates in the Conflict of Laws")

Koppelman, Andrew, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press, 2006)

Redish, Martin H., "Same-Sex Marriage, the Constitution, and Congressional Power to Control Federal Jurisdiction: Be Careful What You Wish For," Lewis & Clark Law Review, 9:363-380 (2005). (See also companion article by Gerhardt.)

Rizzo, Christopher, " Banning State Recognition of Same-Sex Relationships: Constitutional Implications of Nebraska's Initiative 416," Journal of Law & Policy, 11:1-66 (2002).

Rosen, Mark D. "Why the Defense of Marriage Act is Not (Yet?) Unconstitutional: Lawrence, Full Faith and Credit, and the Many Societal Actors that Determine what the Constitution Requires," Minnesota Law Review, 90:915-1001 (2006).

Silberman, Linda, "Same-Sex Marriage: Refining the Conflict of Laws Analysis," University of Pennsylvania Law Review, 153:2195-2214 (2005). (part of Symposium, "Current Debates in the Conflict of Laws")

Simson, Gary J., "Beyond Interstate Recognition in the Same-Sex Marriage Debate," University of California Davis Law Review, 40:313-383 (2006).

Singer, Joseph William, "Same Sex Marriage, Full Faith and Credit, and the Evasion of Obligation," Stanford Journal of Civil Rights & Civil Liberties, 1:1-50 (2005).

Strasser, Mark, "Marriage, Transsexuals, and the Meaning of Sex: on DOMA, Full Faith and Credit, and Statutory Interpretation," Houston Journal of Health Law & Policy, 3:301-330 (2003).

"Symposium: Interjurisdictional Recognition of Civil Unions, Domestic Partnerships, and Benefits," Ave Maria Law Review, 3:393-684 (2005)

"Symposium on Interjurisdictional Marriage Recognition," Creighton Law Review, 32:3-485 (Oct.1998) and 32:1063-1083 (Apr.1999) (fourteen articles)

Wolff, Tobias Barrington, "Interest Analysis in Interjurisdictional Marriage Disputes," University of Pennsylvania Law Review, 153:2215-2250 (2005). (part of Symposium, "Current Debates in the Conflict of Laws")

FEDERAL MARRIAGE AMENDMENT

Alliance for Marriage site, http://www.allianceformarriage.org, includes text and analysis of proposed amendment. (Also at Defend Marriage site http://www.defendmarriage.org.)

H.J.Res. 56, 108th Cong. (introduced May 21, 2003 by Rep. Musgrave), and S.J.Res. 26, 108th Cong. (introduced Nov.25,2003 by Sen. Allard), would have added this language to the Constitution:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the Constitution of any State, nor State or Federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

H.J. Res. 39, 109th Cong. (introduced March 17, 2005 by Rep. Lungren) would add this language to the Constitution:

SECTION 1. Marriage in the United States shall consist only of a legal union of one man and one woman.

SECTION 2. No court of the United States or of any State shall have jurisdiction to determine whether this Constitution or the constitution of any State requires that the legal incidents of marriage be conferred upon any union other than a legal union between one man and one woman.

SECTION 3. No State shall be required to give effect to any public act, record, or judicial proceeding of any other State concerning a union between persons of the same sex that is treated as a marriage , or as having the legal incidents of marriage , under the laws of such other State.

S.J. Res.1, 109th Cong. (introduced Jan.24, 2005 by Senator Allard), would add this language to the Constitution:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman

S. J. Res. 13, 109th Cong. (introduced Apr.14, 2005 by Sen. Brownback) would add this language to the Constitution:

SECTION 1. Marriage in the United States shall consist only of the union of a man and a woman.

SECTION 2. Congress shall have the power to enforce this article by appropriate legislation.

Barr, Bob, "Leave Marriage to the States" Washington Post, Aug.21, 2003.

"Institution of Marriage Amendment," proposed by Concerned Women of America, text in CWA press release, Feb.6,2004, http://www.cwfa.org/articles/5211/CWA/family/index.htm

Mulshine, Paul, " . . . Or forever hold your peace," Star-Ledger, Feb.24, 2004, p.27. Proposes an amendment more conservative than H.J. Res. 56.

Judicial Activism vs. Democracy: What are the National Implications of the Massachusetts Goodridge Decision and the Judicial Invalidation of Traditional Marriage Laws? Hearing before U.S. Senate Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights and Property Rights, March 3, 2004. Testimony and member statements available on Committee website at http://judiciary.senate.gov/hearing.cfm?id=1072.

Oversight Hearing on "The Defense of Marriage Act," U.S. House of Representatives Committee on the Judiciary, Subcommittee on the Constitution, March 30, 2004. Testimony and webcast available on Subcommittee website, http://www.house.gov/judiciary/constitution.htm

Duncan, William C., "The Case for a Federal Marriage Amendment to the Constitution, Civil Rights, Religion & Same-Sex Marriage: Where Are We Going?" Thurgood Marshall Law Review, 30:145-167 (2004)

"Symposium: Federal Marriage Amendment: Yes or No?" University of St. Thomas Law Journal, 2:1-223 (2004). (six articles)

"Symposium Issue: Same Sex Marriage: The Constitutional Debate," Hastings Constitutional Law Quarterly, 32:637-736 (2004/2005). (five articles)

Kaplan, Joshua, "Unmasking the Federal Marriage Amendment: the Status of Sexuality," Georgetown Journal of Gender & Law, 6:105-141 (2005).

Krotoszynski, Ronald J., Jr. & E. Gary Spitko, "Navigating Dangerous Constitutional Straits: a Prolegomenon on the Federal Marriage Amendment and the Disenfranchisement of Sexual Minorities," University of Colorado Law Review, 76:599-652 (2005)

"Federal Marriage Protection Amendment Symposium" BYU Journal of Public Law, 20:195-548 (2006) (eleven articles)

Wilkinson, J. Harvie III, "Gay Rights and American Constitutionalism: What's a Constitution For?" Duke Law Journal, 56:545-581 (2006).

SELECTED JURISDICTIONS IN THE UNITED STATES

Alaska
Arizona
California
Connecticut
Eleventh Circuit
Florida
Hawaii
Indiana
Louisiana
Maryland
Massachusetts
Minnesota
Nebraska
New Hampshire
New Jersey
New York
Ohio
Oregon
Pennsylvania
Rhode Island
Vermont
Washington

ALASKA

Brause v. Bureau of Vital Statistics, 1998 WL 88743 (Alaska Super. Ct. 1998) Held that "marriage, i.e., the recognition of one's choice of a life partner, is a fundamental right. The state must therefore have a compelling interest that supports its decision to refuse to recognize the exercise of this fundamental right by those who choose same-sex partners rather than opposite- sex partners."

Alaska Const. Art I, §25: "To be valid or recognized in this State, a marriage may exist only between one man and one woman." (added 1998, eff. Jan.3,1999)

Clarkson, Kevin G., Collidge, David Orgon, & Duncan, William C., "The Alaska Marriage Amendment: the People's Choice on the Last Frontier," Alaska Law Review, 16:213-268 (1999).

ARIZONA

Standhardt v. Superior Court ex rel. County of Maricopa, 77 P.3d 451 (Ariz. Ct. App. Div.1, Oct.8, 2003), opinion available on Court's website at http://www.cofad1.state.az.us/opinionfiles/SA/SA030150.pdf. The Court of Appeal held that same-sex couples did not have a fundamental constitutional right to marry, and that " the State has a legitimate interest in encouraging procreation and child-rearing within the marital relationship, and that limiting marriage to opposite-sex couples is rationally related to that interest." The plaintiffs said they would file an appeal to the Arizona Supreme Court in early December.

CALIFORNIA

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Marriage Equality California, http://www.eqca.org.

California Statutes 1999, ch.588 (AB 26), relating to domestic partnerships, added Calif. Family Code §297 et seq., Calif. Gov't Code §22867 et seq., and Calif. Health & Safety Code §1261. The domestic partnership laws were expanded and amended by Calif. Statutes 2001 c. 893 (AB 25). The full text of each act can be retrieved by entering the year and chapter number at http://www.leginfo.ca.gov/statute.html.

Blumberg, Grace Ganz, "Legal Recognition of Same-Sex Conjugal Relationships: the 2003 California Domestic Partner Rights and Responsibilities Act in Comparative Civil Rights and Family Law Perspective," UCLA Law Review 51:1555-1617 (2004).

Woo v. Lockyer, No. CPF-04-504030, Complaint, filed March 12, 2004, in Calif. Superior Court for County of San Francisco, http://www.nclrights.org/cases/pdf/March12Complaint.pdf (National Center for Lesbian Rights)

Lockyer v. City and County of San Francisco, 33 Cal. 4th 1055, 95 P.3d 459, 17 Cal. Rptr. 3d 225 (Aug.12, 2004), retrievable at California Courts web site http://www.lexisnexis.com/clients/CACourts/?. The California Supreme Court declared invalid the same-sex marriages that had been performed, because local officials were not authorized to act on their own non-judicial determination of unconstitutionality of the marriage statute's limitation to opposite-sex couples.

Defendants' Preliminary Opposition to Petitions for Writ of Mandate, Marriage Cases: City and County of San Francisco v. State of California, Case No. 429-539, Judicial Council Coordination Proceeding No. 4365 (October 8, 2004), http://caag.state.ca.us/newsalerts/2004/04-115.pdf.

"Religious Freedom and Civil Marriage Protection Act," Calif. Assembly Bill 19, as introduced Dec. 6, 2004, http://www.leginfo.ca.gov/pub/bill/asm/ab_0001-0050/ab_19_bill_20041206_introduced.html

Marriage Cases, Judicial Council Coordination Proceeding No. 4365, Tentative Decision (Calif. Superior Court, County of San Francisco, March 14, 2005), available on Lambda website at http://www.lambdalegal.org/binary-data/LAMBDA_PDF/pdf/452.pdf. Held that California statutes precluding same-sex marriage violated the equal protection clause of the state constitution. This holding was reversed by the Court of Appeal Oct.5, 2006, see below.

Smelt v. County of Orange (C.D. Cal. June 16, 2005): see supra under DOMA.

Assembly Bill 849, "Religious Freedom and Civil Marriage Protection Act." as amended in Senate June 28, 2005, http://www.leginfo.ca.gov/pub/bill/asm/ab_0801-0850/ab_849_bill_20050628_amended_sen.html; enrolled version, Sept. 6,2005, http://www.leginfo.ca.gov/pub/bill/asm/ab_0801-0850/ab_849_bill_20050907_enrolled.pdf Governor's veto message (Sept.29, 2005): http://www.governor.ca.gov/govsite/pdf/vetoes_2005/AB_849_veto.pdf

Koebke v. Bernardo Heights Country Club, 36 Cal.4th 824, 115 P.3d 1212, 31 Cal.Rptr.3d 565 (Cal. Aug.1, 2005), http://www.courtinfo.ca.gov/opinions/documents/S124179.PDF: "... a business that extends benefits to spouses it denies to registered domestic partners engages in impermissible marital status discrimination."

Elisa B. v. Superior Court, 37 Cal.4th 108, 117 P.3d 660, 33 Cal.Rptr.3d 46; K.M. v. E.G., 37 Cal.4th 130, 117 P.3d 673, 33 Cal.Rptr.3d 61 ; and Kristine H. v. Lisa R., 37 Cal.4th 156, 117 P.3d 690, 33 Cal.Rptr.3d 81 (Cal. Aug.22, 2005). http://www.courtinfo.ca.gov/opinions/archive/S125912.PDF, S125643.PDF, and S126945.PDF. Three companion cases holding that both members of a lesbian couple are lawful parents, subject to laws on child custody and support.

Smelt v. County of Orange, No. 05-56040 (9th Cir. May 5, 2006), see supra under DOMA.

In re Marriage Cases, Nos. A110449 etc.[six consolidated appeals] (Calif. Court of Appeal, First Appellate District, Oct.5, 2006), http://www.courtinfo.ca.gov/opinions/documents/A110449.PDF. By a 2 to 1 vote, upheld law limiting marriage to opposite-sex couples, reversing lower court decision.

CONNECTICUT

Love Makes a Family, http://www.lmfct.org.

http://www.cga.state.ct.us/olr/samesexrelationship.htm -->

Connecticut Designated Representatives Law, Public Act 02-105, http://www.cga.ct.gov/2002/act/Pa/2002PA-00105-R00HB-05763-PA.htm (June 3, 2002), summarized on Love Makes a Family website at http://www.lmfct.org/legis/Summary.htm.

Connecticut General Assembly, Judiciary Commiteee, "Pursuant to Section 16 of P.A. 02-105," http://www.cga.state.ct.us/jud/PA02-105.htm, includes testimony from hearings, and reports on various topics relating to same sex marriage and civil unions.

"Same Sex Partners in Connecticut" (Backgrounder) (Oct.5,2002), http://www.cga.ct.gov/2002/olrdata/jud/rpt/2002-R-0834.htm

Kerrigan v. State of Connecticut, Department of Public Health, Complaint, Aug.25, 2004, on website of Gay & Lesbian Advocates & Defenders at http://www.glad.org/marriage/Kerrigan-Mock_complaint.pdf

Connecticut Civil Union Act, Public Act No. 05-10, approved April 20, 2005 (effective Oct.1,2005) http://www.cga.ct.gov/2005/act/Pa/2005PA-00010-R00SB-00963-PA.htm, primarily codified at Conn. General Statutes Title 46B, Chapter 815F, §§46b-38aa to -38pp

Conn. Attorney General Opinion No. 2005-024 (Sept.20,2005), http://www.cslib.org/attygenl/opinions/2005/2005-024.htm: Connecticut will recognize civil unions and domestic partnerships from other states, but not same-sex marriages.

ELEVENTH CIRCUIT

Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) (en banc, 8 to 4 decision), http://www.law.emory.edu/11circuit/may97/93-9345.op2.html Bowers, the Attorney General of the State of Georgia, revoked a job offer to attorney Shahar after learning of her intent to marry another woman. Shahar asserted violations of her federal constitutional rights. The majority of the court upheld the revocation of the job offer. (A supplemental opinion, denying a motion to supplement the record, appears at 13 I.E.R.Cas.(BNA) 539, and at http://www.law.emory.edu/11circuit/july97/93-9345.reh.html)

FLORIDA

Ash v. Forman, No. 0403279, Complaint, Feb. 25, 2004 (Fla. Cir. Ct., 17th Judicial Circ.), 2004 WL 368099. Suit attacking Florida's restriction of marriage to opposite-sex couples as unconstitutional.

HAWAII

Baehr v. Lewin, 74 Haw. 530, 645, 852 P.2d 44 (1993), http://www.qrd.org/qrd/usa/legal/hawaii/baehr-v-lewin.txt-05.05.93 . The Hawaii Supreme Court held that, although there was not a fundamental constitutional right of persons of the same sex to marry, the sex-based classification in the Hawaii marriage statute was subject to "strict scrutiny" and would be presumed unconstitutional unless the state could demonstrate that it furthered a compelling state interest.

Baehr v. Miike, 80 Haw. 341, 910 P.2d 112 (Jan.23,1996) (affirming Circuit Court's order denying permission for Church of Latter Day Saints to intervene).

Baehr v. Miike, No.91-1394-05, 1996 WL 694235, http://starbulletin.com/96/12/03/news/ssruling.txt (Haw. Cir. Ct. Dec.3,1996), aff'd, 87 Haw.34, 950 P.2d 1234 (1997) (Table), rev'd, 92 Haw. 634, 994 P.2d 566 (1999) (Table No. 20371). The Circuit Court decision held that the sex-based classification in the Hawaii marriage statute was unconstitutional, and enjoined the state from denying a marriage license solely because the applicants were of the same sex. This decision was reversed by the Supreme Court without opinion, after the passage of the constitutional amendment noted below in 1998.

Hawaii Reciprocal Beneficiaries Act (Laws of 1997, ch.383): Detailed information on this law is available at the Marriage Project Hawaii website, http://members.tripod.com/~MPHAWAII/. The Conference Committee Report containing the final bill text is available on the website of the firm Damon Key Leong Kupchak Hastert at http://www.hawaiilawyer.com/legislat/hb118cv.txt. The provisions for registration and termination of reciprocal beneficiary relationships are codified at Hawaii Revised Statutes § 572C, http://www.capitol.hawaii.gov/hrscurrent/Vol12_Ch0501-0588/HRS0572C/

Hawai'i Constitution Art.I sec.23: "The legislature shall have the power to reserve marriage to opposite-sex couples." (ratified Nov.3,1998).

Goldberg-Hiller, Jonathan, "The Status of Status: Domestic Partnership and the Politics of Same-Sex Marriage," Studies in Law Policy & Society, 19:3-38 (1999) [call no. K18.E837 ]

Silverstein, Helena, "Benign Neglect: Affirmative Action, Same-Sex Marriage, and the Underlying Conservatism of Baehr v.Lewin," Studies in Law Policy & Society, 19:39-62 (1999) [call no. K18.E837 ]

"Symposium: Same-Sex Marriage: the Debate in Hawai'i and the Nation," University of Hawai'i Law Review, 22:1-235 (spring 2000) (three articles)

INDIANA

Morrison v. Sadler, 821 N.E.2d 15 (Indiana Court of Appeals, Jan.20,2005), http://www.state.in.us/judiciary/opinions/archive/01200504.mpb.html, held that Indiana Constitution does not require recognition of same-sex marriage.

LOUISIANA

Louisiana Constitution, Article XII, Section 15, added by statewide election Sept.18,2004, provides:

Marriage in the state of Louisiana shall consist only of the union of one man and one woman. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized. No official or court of the state of Louisiana shall recognize any marriage contracted in any other jurisdiction which is not the union of one man and one woman.

MARYLAND

Deane v. Conaway, No. 24-C-04-005390 (Baltimore MD Circuit Ct., Jan.20,2006), opinion available at http://www.equalitymaryland.org/Deane_Polyak_BCC_Decision.pdf. Struck down state statute against same-sex marriage. Holding stayed pending appeal. reversed by: Conaway v. Deane, 401 Md. 219, 932 A.2d 571 (Sept.18, 2007).

MASSACHUSETTS

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"Issue: Gay Marriage," http://www.02133.org/issue.cfm?ID=118 (Massachusetts Politics & Policy Online)

"Marriage in Massachusetts," http://www.glad.org/marriage/ (Gay & Lesbian Advocates & Defenders)

"Mass. Law About Same-Sex Marriage," http://www.lawlib.state.ma.us/gaymarriage.html (Mass. Trial Court Libraries)

Herdlein, Wendy, "Something Old, Something New: Does the Massachusetts Constitution Provide for Same-Sex 'Marriage'?" Boston Univ. Public Interest Law Journal,12:137-182 (2002)

Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (Nov.18,2003) (opinion available at Massachusetts Lawyers Weekly site, http://www.masslaw.com/archives/ma/opin/sup/1017603.htm). The Supreme Judicial Court "construe[d] civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others," and declared that "barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution." The court stayed the entry of judgment for 180 days to permit the Legislature to take appropriate action. For background information see GLAD website at http://www.glad.org/marriage/.

On December 11, 2003, the state Senate, by an order designated Senate No.2176, asked the Supreme Judicial Court for an advisory opinion on the constitutionality of Senate bill No.2175, establishing civil unions. For texts of the bill and order, see http://www.state.ma.us/legis/bills/st02175.htm and http://www.state.ma.us/legis/bills/st02176.htm. On February 3, 2004, the Supreme Judicial Court replied, in Opinions of the Justices to the Senate, http://www.malawyersweekly.com/archives/ma/opin/sup/1002204.htm, that the civil union bill would maintain " an unconstitutional, inferior, and discriminatory status for same-sex couples ...," and thus made clear that same sex marriage per se would be allowed in Massachusetts, beginning in May 2004.

"Uncorrected Proof of the Journal of the Senate in Joint Session," Feb.11-12,2004, http://www.state.ma.us/legis/journal/jsj021104.htm and /jsj021204.htm, and March 11,2004, /jsj031104.htm, and March 29, 2004, /jsj032904.htm. The Massachusetts House and Senate met together as a constitutional convention and on March 29th passed a constitutional amendment, requiring marriage to be between a man and a woman, but providing for civil unions. For text see Senate Bill No.5, http://www.mass.gov/legis/bills/senate/st00/st00005.htm. The amendment would not have been effective unless passed again during the 2005-06 session and then ratified by the electorate in November 2006.

Doyle v. Goodridge, No.SJ-2004-0169, Memorandum & Order of Associate Justice Roderick L. Ireland, May 4, 2004 (denying petition for extension of the stay of judgment in Goodridge v. Dep't of Health until completion of the constitutional amendment process), on GLAD website at http://www.glad.org/marriage/Doyle_decision.pdf.

Goodridge v. Department of Public Health, No. SJC-08860, Order (Supreme Judicial Court, May 7, 2004) (denying as untimely a motion of thirteen state legislators to intervene), on GLAD website at http://www.glad.org/marriage/ACLJ_decision.pdf.

In Largess v. Supreme Judicial Court, No. 04-1621 (1st Cir. May 14, 2004), the plaintiffs sought to enjoin implementation of the Goodridge decision, on the grounds that it violated the federal constitutional guarantee of a republican form of government. The U.S. District Court denied preliminary injunctive relief May 13th, 317 F. Supp. 2d 77, and the U.S. Court of Appeals for the First Circuit, finding the likelihood of a successful appeal weak, denied the request for injunctive relief pending appeal, but heard the appeal on an expedited basis, and affirmed on June 29th, 373 F.3d 219, opinion available at . http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=04-1621.01A The Liberty Counsel website has the complaint at http://www.lc.org/misc/Largess_v_Mass_Complaint.pdf, the memorandum of law in support of temporary restraining order and preliminary injunction, at http://www.lc.org/misc/Largess_vMass_TRO_memo.htm, and the First Circuit order denying the preliminary injunction, at http://www.lc.org/attachments/Order%20-%20First%20Circuit.pdf.

Cote-Whitacre v. Department of Public Health, C.A. No. 04-2656-G (Mass. Superior Court, Aug.18, 2004), available on GLAD website, together with other documents in case, at http://www.glad.org/marriage/cote_documents.shtml; denied injunction that out-of-state same-sex couples sought against enforcement of Mass. General Laws c.207 §11, prohibiting marriage of residents of another jurisdiction if such marriage would be void in that jurisdiction.

Johnstone v. Reilly, C.A. No.04-2655-G (Mass. Superior Court, Aug.18,2004), on GLAD website, together with other documents in case, at http://www.glad.org/marriage/johnstone_documents.shtml; held that town clerks lacked standing to seek an injunction against enforcement of G.L. c.207 §11 with respect to out-of-state same-sex couples.

Cote-Whitacre v. Department of Public Health, 446 Mass. 350, 844 N.E.2d 623, http://www.malawyersweekly.com/signup/opinion.cfm?page=ma/opin/sup/1005506.htm (Mass. Supreme Judicial Court, March 30, 2006); upheld the prohibition against same-sex marriages in Massachusetts for residents of other states where such marriages would not be allowed.

Schulman v. Attorney-General, 447 Mass. 189, 850 N.E.2d 505, SJC-09684 ( Mass. Supreme Judicial Court, July 10, 2006), allowed an initiative petition to go forward that would prospectively restrict marriage to opposite-sex couplkes.

Miller, Mark C, "Conflicts between the Massachusetts Supreme Judicial Court and the Legislature: Campaign Finance Reform and Same-Sex Marriage," Pierce Law Review 4:279-316 (2006)

Jacobi, Tonja. "How Massachusetts Got Gay Marriage: the Intersection of Popular Opinion, Legislative Action, and Judicial Power," Journal of Contemporary Legal Issues, 15:219-241 (2006).

Cote-Whitacre v. Department of Public Health, Civil Action No. 04-2656, Memorandum of Decision on Whether Same-Sex Marriage is Prohibited in New York and Rhode Island (Mass. Superior Court, Sept.29,2006), text available at: http://www.glad.org/marriage/Cote-Whitacre/9_29_06.pdf. Held that same-sex marriage is prohibited in New York, but is not prohibited in Rhode Island.

"Uncorrected Proof of the Journal of the Senate" in Joint Session, Nov.9, 2006, http://www.mass.gov/legis/journal/jsj110906.htm. Rejected one initiative for a constititional amendment against same-sex marriage ( House bill No. 653 , http://www.mass.gov/legis/bills/house/ht00pdf/ht00653.pdf ) , and did not consider another initiative petition (House bill No. 4617, http://www.mass.gov/legis/bills/house/ht04pdf/ht04617.pdf ) for the same purpose.

Doyle v. Secretary, SJC-09887 (Mass. Supreme Judicial Court, Dec.27,2006, http://www.malawyersweekly.com/signup/opinion.cfm?page=ma/opin/sup/1019306.htm and http://www.glad.org/GLAD_Cases/doyle.pdf. The Supreme Judicial Court held it had no power to force the legislature to vote on a constitutional amendment proposed by initiative.

On Jan.2, 2007, the Massachusetts legislature gave initial approval to the initiative petition (House bill No. 4617, http://www.mass.gov/legis/bills/house/ht04pdf/ht04617.pdf) to prospectively ban same-sex marriage. The proposal would need to be approved again in the next legislative session in order to be on the ballot in Nov. 2008.

MINNESOTA

Winer, Anthony S., "How a Marriage Discrimination Amendment Would Disrespect Democracy in Minnesota," William Mitchell Law Review, 33:1059-1080 (2007).

NEBRASKA

Citizens for Equal Protection v. Bruning, No.4:03CV3155, 290 F.Supp.2d 1004 (D. Neb. Nov.10,2003), available on Lambda web site at http://www.lambdalegal.org/binary-data/LAMBDA_PDF/pdf/251.pdf. The U.S. District Court denied a motion to dismiss a lawsuit challenging the constitutionality of the second sentence of Article I section 29 of the Nebraska Constitution. That section reads "Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska." The plaintiffs claim that the second sentence denies them "an equal opportunity to lobby their elected representatives regarding legal protections for same-sex relationships."

Citizens for Equal Protection v. Bruning, 368 F.Supp.2d 980 (D. Neb. May 12, 2005), available on Lambda web site at http://www.lambdalegal.org/binary-data/LAMBDA_PDF/pdf/462.pdf. Held that Nebraska's constitutional provision against same-sex unions was an unconstitutional bill of attainder, because it went beyond maintaining the common-law opposite-sex definition of marriage to deny government benefits to the partners of any sort of same-sex union. This decision was reversed by:

Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. July 14, 2006), http://www.ca8.uscourts.gov/opndir/06/07/052604P.pdf, which held that: "laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States."

NEW HAMPSHIRE

Commission Report on Same Sex Civil Marriages (December 1, 2005), http://nhhousegop.com/Reports/legislative_reports.htm

NEW JERSEY

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Gay and Lesbian Political Action and Support Groups (GayPASG), Task Force for Same-Sex Civil Marriage, Civil Union, and Domestic Partnership: http://s120620558.onlinehome.us/GayPASG/IndexFiles/SSMTF.htm

M.T. v. J.T., 140 N.J. Super. 77, 83-85 (App. Div. 1976). In a case involving validity of the marriage of a post-operative transsexual, Judge Handler (now Justice Handler) wrote:

We accept--and it is not disputed--as the fundamental premise in this case that a lawful marriage requires the performance of a ceremonial marriage of two persons of the opposite sex, a male and a female. Despite winds of change, this understanding of a valid marriage is almost universal. . . . In the matrimonial field the heterosexual union is usually regarded as the only one entitled to legal recognition and public sanction. . . .

(citations omitted)

There is not the slightest doubt that New Jersey follows the overwhelming authority. The historic assumption in the application of common law and statutory strictures relating to marriages is that only persons who can become "man and wife" have the capacity to enter marriage. Cf. Winn v. Wiggins, 47 N.J. Super. 215, 220 (App. Div. 1957); Jackson v. Jackson, 94 N.J. Eq. 233, 236-237 (E. & A. 1922); N.J.S.A. 37:1-10. The pertinent statutes relating to marriages and married persons do not contain any explicit references to a requirement that marriage must be between a man and a woman. N.J.S.A. 37:1-1 et seq.; N.J.S.A. 2A:34-1 et seq. Nevertheless that statutory condition must be extrapolated. It is so strongly and firmly implied from a full reading of the statutes that a different legislative intent, one which would sanction a marriage between persons of the same sex, cannot be fathomed.

"Lambda Legal and New Jersey Couples Launch Historic Lawsuit for Marriage Equality," http://www.lambdalegal.org/cgi-bin/iowa/cases/record2?record=179 Includes text of complaint in Lewis v. Harris, filed June 26,2002 in Law Division, Hudson County (transferred to Mercer County Nov.22,2002).

Seidenstein, Robert G., "Gay-marriage supporters eye history of high court," New Jersey Lawyer, 11:1263 (July 8, 2002)

Gourvitz, Elliot H. & Ari H., "Why New Jersey is a friendly forum for gay marriage", New Jersey Law Journal, 169:465-467 (Aug.5, 2002) (Sec.3, Family Law supp., p.S-1 to S-3)

Assembly Bill No. 3762, introduced June 9, 2003, http://www.njleg.state.nj.us/2002/Bills/A3500/3762_I1.PDF, to establish civil unions.

Lewis v. Harris, No. MER-L-15-03 (Law Division, Nov.5, 2003) (Judge Feinberg's opinion dismissing the suit.) Opinion at Rutgers-Newark Law Library site: http://njlegallib.rutgers.edu/misc/feinberg.pdf

Badgett, M. V. Lee, & R. Bradley Sears, Supporting Families, Saving Funds: A Fiscal Analysis of New Jersey's Family Equity Act, (Nov. 2003), available at: http://www1.law.ucla.edu/~williamsproj/issues/NJ/NJ-DPAStudy.pdf (Williams Project, UCLA School of Law).

"Domestic Partnerships Act." P.L. 2003, c.246, Assembly Bill No. 3743 (Second Reprint), approved Jan.12, 2004. Primarily codified at N.J.S. 26:8A-1 to -12. Text: http://www.njleg.state.nj.us/2002/Bills/PL03/246_.PDF History: Assembly Bill No. 3743, introduced June 5, 2003 (under title "Family Equality Act"). Companion bill "Domestic Partnerships Act," Senate Bill No. 2820, introduced Dec.5, 2003. A3743 amended and passed by Assembly Dec.15,2003, passed Senate Jan.8, 2004.

Assembly Bill No. 1398, http://www.njleg.state.nj.us/2006/Bills/A1500/1398_I1.PDF in 2006-07 session; previously Senate Bill No. 1148, http://www.njleg.state.nj.us/2004/Bills/S1500/1148_I1.HTM, introduced Feb.24,2004 by Senator Cardinale, would declare same-sex marriages void and deny recognition to same-sex marriages from other jurisdictions. Companion bill A460. (Previously Assembly Bill No. 1765 and Senate Bill No.1047, introduced Feb.4,2002.)

Statement of Attorney General Peter C. Harvey on Same Sex Marriage Issue, March 9, 2004, http://www.state.nj.us/lps/newsreleases04/pr20040309d.html

ACLJ Files Suit Against Asbury Park, New Jersey to Stop Same-Sex Marriage, March 15, 2004 (American Center for Law and Justice, press release), http://www.aclj.org/news/read.aspx?ID=276

Assembly Concurrent Resolution No. 134 and Senate Concurrent Resolution No.79 in 2006-07, http://www.njleg.state.nj.us/2006/Bills/ACR/134_I1.PDF; previously: Assembly Concurrent Resolution No. 212, introduced Jan.10,2005, http://www.njleg.state.nj.us/2004/Bills/ACR/212_I1.HTM, would add this language to the State Constitution: "Marriage is solely between a man and a woman unless the Legislature otherwise provides."

Hennefeld v. Township of Montclair, No. 007682-2004 (N.J. Tax Court, March 15, 2005), on Rutgers-Newark website at http://njlegallib.rutgers.edu/misc/hennefeldfinaled.pdf. Although declining to recognize plaintiffs' Canadian marriage or to grant them rights pursuant to their Vermont civil union, the Tax Court held that within the intent of the N.J. Domestic Partnership Act, for the purpose of the disabled veteran's exemption, plaintiffs' ownership interest in property would be treated "in the same fashion as is 'accorded to married couples.'"

Suzanne B. Goldberg, "Marriage Equality in New Jersey?" New Jersey Lawyer, No.233 (April 2005) p.35-38.

Lewis v. Harris, 378 N.J.Super.168, 875 A.2d 259 (N.J. Superior Court, Appellate Division, June 14, 2005), on Rutgers-Camden site at http://lawlibrary.rutgers.edu/courts/appellate/a2244-03.opn.html. In a two-to-one decision, with the majority opinion invoking historical tradition and prevailing religious and societal views, the Appellate Division denied the existence of a constitutional right for same-sex couples to marry.

Lewis v. Harris, No. A-68-05, Oral Argument at N.J. Supreme Court, Feb. 15, 2006, video viewable at http://njlegallib.rutgers.edu/supct/args/A_68_05.php

Editorial: "In Favor of Same-Sex Marriage," New Jersey Law Journal, 183:906 (March 13, 2006)

Lewis v. Harris, No. A-68-05 (N.J.Supreme Court, October 25, 2006), available on Rutgers-Newark Law Library website at http://njlegallib.rutgers.edu/misc/a-68-05.pdf and at Rutgers-Camden Law Library site at http://lawlibrary.rutgers.edu/courts/supreme/a-68-05.doc.html. Held that the equal protection clause of the state constitution required that committed same-sex couples be given on an equal basis the same rights and privileges given to opposite-sex couples by virtue of civil marriage, but that the constitution did not require that same-sex couples were entitled to a relationship officially designated as "marriage." Gave the Legislature 180 days to either amend the marriage statutes or enact another statutory scheme to accomplish equality of rights and privileges. Three justices concurred in the equal rights holding, but dissented with respect to the denial of entitlement to civil marriage as such.

N.J. Assembly bill No.3685, introduced Nov.20, 2006, "Civil Marriage and Religious Protection Act," http://www.njleg.state.nj.us/2006/Bills/A4000/3685_I1.HTM, would extend civil marriage to same-sex couples.

N.J. Assembly bill No.3787, introduced Dec.4, 2006, "Civil Union Act," http://www.njleg.state.nj.us/2006/Bills/A4000/3787_I1.HTM and companion Senate bill No.2407.

Civil Union Act, Laws of New Jersey 2006, chapter 103 (approved Dec.21,2006), advance law at http://www.njleg.state.nj.us/2006/Bills/AL06/103_.HTM and .PDF. Became effective February 19, 2007.

Attorney General, Formal Opinion No.1 - 2007, "Re: Whether Public Officials and Religious Figures May Decline to Exercise their Authority to Solemnize Civil Unions" (January 10,2007), http://www.nj.gov/oag/newsreleases07/civil-union-clergy-letter.pdf. Advises that public officials who elect to be available generally to solemnize marriages must also be available generally to solemnize civil unions, but that the same is not true of religious figures.

Attorney General, Formal Opinion No.3 - 2007, "Recognition in New Jersey of Same-Sex Marriages, Civil Unioins, Domestic Partnerships, and Other Government-Sanctioned Same-Sex Relationships Established Pursuant to the Laws of Other States and Foreign Nations" (February 16, 2007), http://www.nj.gov/oag/newsreleases07/ag-formal-opinion-2.16.07.pdf. Advises that same-sex marriages entered into under the laws of Massachusetts or of foreign nations are valid and treated as civil unions in New Jersey.

NEW YORK

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Marriage Equality New York http://www.marriageequalityny.org/

Association of the Bar of the City of New York, Committees on Lesbians and Gay Men in the Profession, Civil Rights, and Sex and Law, "Same-Sex Marriage in New York," Record of the Association of the Bar of the City of New York, 52:343-366 (April 1997).

"Marriage: Winning and Keeping the Freedom to Marry Nationally and in New York" (panel discussion), Fordham Urban Law Journal, 27:332-347 (Dec.1999)

Association of the Bar of the City of New York, Committees on Lesbian and Gay Rights, Sex and Law, and Civil Rights, "Marriage Rights for Same- Sex Couples in New York," Record of the Association of the Bar of the City of New York, 56:170-203 (Spring 2001)

Langan v. St. Vincent's Hospital of N.Y., 196 Misc.2d 440, 765 N.Y.S.2d 411 (Sup.Ct., Apr.10,2003). The New York court recognized a Vermont civil union for purposes of wrongful death benefits to the surviving partner. Case is on appeal.

"Attorney General Issues Opinion on Same-Sex Marriage," http://www.oag.state.ny.us/press/2004/mar/mar03a_04.html, press release, March 3, 2004, with link to full text of 28-page opinion. Opinion states that same-sex marriages are not authorized under New York law, but that this interpretation of the statute raises constitutional questions that will need to be resolved by the courts; and that New York presumptively will recognize same-sex marriages from other states.

Hernandez v. Robles, Complaint, Mar. 5, 2004, http://www.lambdalegal.org/binary-data/LAMBDA_PDF/pdf/278.pdf (Lambda Legal Defense & Education Fund, lawsuit challenging New York's ban on same sex marriage)

Samuels v. New York State Dep't of Health, Complaint, Apr. 7, 2004, http://www.aclu.org/Files/OpenFile.cfm?id=15439 (American Civil Liberties Union)

Hernandez v. Robles, 7 Misc.3d 459, 794 N.Y.S.2d 579 (New York Supreme Court, Feb. 4, 2005), opinion available on Lambda Legal website at http://www.lambdalegal.org/binary-data/LAMBDA_PDF/pdf/378.pdf. Judge Doris Ling-Cohan held that the restriction of marriage to opposite-sex couples under New York's Domestic Relations Law violated the state constitution, and that to cure the constitutional defect the gender-specific words and personal pronouns in that law would be construed gender-neutrally. Reversed by Appellate Division, Dec. 8, 2005, opinion at 26 A.D.3d 98, 805 N.Y.S.2d 354, http://www.courts.state.ny.us/reporter/3dseries/2005/2005_09436.htm.

Hernandez v. Robles, 7 N.Y.3d 338, 855 N.E.2d 1 (New York Court of Appeals, July 6, 2006), http://www.courts.state.ny.us/reporter/3dseries/2006/2006_05239.htm. Upheld New York's opposite-sex definition of marriage against constitutional challenge. The decision was 4 to 2, with a dissenting opinion by Chief Judge Kaye.

OHIO

Revised Code of Ohio §3101.01(C). Substitute House Bill 272, signed into law Feb.6,2004. The Legislative Service Commission's Bill Analysis says this law

Declares that same-sex marriages are against the strong public policy of the state of Ohio and have no legal force or effect in this state
Provides that same-sex marriages entered into in another jurisdiction have no legal force or effect in Ohio.
Declares that the recognition or extension by the state of the specific statutory benefits of legal marriage to nonmarital relationships between persons of the same sex or different sexes is against the strong public policy of the state of Ohio.
Provides that any other jurisdiction's extension of the specific benefits of legal marriage to nonmarital relationships between persons of the same sex or different sexes has no legal force or effect in Ohio.

Full text of the bill is available at http://www.legislature.state.oh.us/bills.cfm?ID=125_HB_0272.

OREGON

Duncan, William C. & David Orgon Coolidge, "Marriage and Democracy in Oregon: The Meaning and Implications of Tanner v. Oregon Health Sciences University," Willamette Law Review, 36:503-548 (2000)

Attorney General's Opinion on Same-Sex Marriage, March 12, 2004, http://www.doj.state.or.us/pdfs/AG_samesexopinion.pdf. Concludes that Oregon's highest court would probably find that the restriction of marriage to opposite-sex couples violates the state constitution.

Ballot Measure 36, adopted Nov. 2004, effective Dec.2,2004: "It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage."

Li v. State of Oregon, 338 Ore. 376, 110 P.3d 91 (Supreme Court of Oregon, April 14, 2005), http://www.publications.ojd.state.or.us/S51612.htm. Nullified as ultra vires same-sex marriage licenses that had been issued in Multnomah County.

PENNSYLVANIA

Cohon, Maureen B., "Where the Rainbow Ends: Trying to Find a Pot of Gold for Same-Sex Couples in Pennsylvania," Duquesne Law Review, 41: 495-512 (2003).

RHODE ISLAND

Rhode Island Attorney General's Opinion, Feb.20,2007, http://www.riag.ri.gov/temp/AGResponse.pdf, advises that Massachusetts same-sex marriages should be recognized as marriages in Rhode Island.

VERMONT

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Vermont Freedom to Marry Task Force, http://www.vtfreetomarry.org/ Includes the decision, briefs & other documents in Baker v. State.

Vermont Secretary of State, "The Vermont Guide to Civil Unions," http://www.sec.state.vt.us/otherprg/civilunions/civilunions.html

Vermonters for Civil Unions, http://www.vtmarriageact ion.org/index.html , includes legislative updates.

Baker v. State, 744 A.2d 864. 81 A.L.R.5th 627 (Vt.1999) (reprinted at 25 Vt.L.Rev. 285 and available at http://www.vtf reetomarry.org/fs_vermontdecision.html) The Vermont Supreme Court held that the State was "constitutionally required to extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law."

Vermont Civil Union Act, Act No.91 (April 26,2000), http://www.leg.state.vt.us/docs/2000/acts/ACT091.HTM, primarily codified at Vermont Statutes Title 15, Chapter 23 (§§1201-1207)

"A Symposium on Vermont's Civil Unions," Vermont Law Review, 25:1-283 (Fall 2000) (eight articles)

Strasser, Mark, "Equal Protection at The Crossroads: On Baker, Common Benefits and Facial Neutrality," Arizona Law Review 42:935-963 (2000)

Strasser, Mark, "Mission Impossible: On Baker, Equal Benefits, and the Imposition of Stigma," William and Mary Bill of Rights Journal, 9:1-27 (Dec.2000)

Culhane, John G., "A Tale of Two Concurrences: Same-Sex Marriage and Products Liability," William & Mary Journal of Women & the Law, 7:447-471 (2001)

Robinson, Beth, "The Road to Inclusion for Same-Sex Couples: Lessons from Vermont," Seton Hall Constitutional Law Journal, 11:237-257 (Spring 2001)

Jacobi, Tonja, "Same Sex Marriage in Vermont: Implications of Legislative Remand for the Judiciary's Role," Vermont Law Review, 26:381-406 (2002).

Symposium, "Civil Unions in Vermont: Where to Go From Here?" Widener Journal of Public Law, 11:361-514 (2002) (four articles)

Vermont Civil Union Review Commission: main page, http://www.leg.state.vt.us/baker/cureview.cfm; 2002 report, http://www.leg.state.vt.us/baker/Final%20CURC%20Report%20for%202002.htm

Moats, David, Civil Wars: A Battle for Gay Marriage (Harcourt, 2004)

WASHINGTON

Anderson v. Sims, Complaint to redress the denial of the basic civil right to marry, filed Mar,2004 in Superior Court of Washington for King County, available at http://www.lambdalegal.org/cgi-bin/iowa/documents/record?record=1463 (Lambda Legal).

Anderson v. King County, No.04-02-04964-4SEa (Washington Superior Ct., King County, August 4,2004), opinion available at http://seattletimes.nwsource.com/news/local/gaymarriage/downing_opinion.pdf Judge William L. Downing held that denial to plaintiffs of right to marry violated the privileges or immunities clause of the Washington state constitution, as well as constituting a denial of substantive due process. By agreement, the matter was stayed pending review by the Washington Supreme Court, which reversed the decision on July 26, 2006.

Castle v. State of Washington, Complaint, April 1, 2004, http://www.aclu.org/LesbianGayRights/LesbianGayRights.cfm?ID=15406&c=101 (American Civil Liberties Union)

Castle v. State of Washington, No. 04-2-00614-4, Memorandum Opinion on Constitutionality of RCW 26.02.010 and RCW 26.02.020 (Wash. Superior Ct., Thurston County, Sept.7,2004), available on court website at http://www.co.thurston.wa.us/Superior/Recent%20Opinions/Recent_Opinions.htm. Judge Richard D. Hicks held that the ban on same-sex marriages violated the privileges or immunities clause of the state constitution. Reversed by:

Anderson v. Kings County, 138 P.3d 963 (Washington Supreme Court, July 26, 2006), majority opinion at http://www.courts.wa.gov/newsinfo/content/pdf/759341opn.pdf and at http://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=759341MAJ. Upheld limitation of marriage to opposite-sex couples. Two concurring and three dissenting opinions are available as separate documents on the court website, http://www.courts.wa.gov/opinions/.

AUSTRALIA

Sarantakos, Sotirios, "Same-Sex Marriage: Which Way to Go?" Alternative Law Journal, 24:79-84 (April 1999), http://www. austlii.edu.au/au/journals/AltLJ/1999/15.html

Ireland, Ian, "The High Court and the Meaning of 'Marriage' in Section 51(xxi) of the Constitution" (Dep't of the Parliamentary Library, Research Note No.17, 2001-02)(Feb.12,2002), http://www.aph.gov.au/library/pubs/rn/2001-02/02rn17.htm

Marriage Legislation Amendment Bill, Bills Digest No.155 2003-04 / Jennifer Norberry, 4 June 2004, http://www.aph.gov.au/library/pubs/bd/2003-04/04bd155.pdf. The bill, introduced May 27, 2004, would define marriage as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life," and would prevent same sex couples from adopting children from abroad under treaty arrangements.

BELGIUM

The text of the law passed by the Belgian parliament on January 30, 2003, opening civil marriage to same-sex couples, is available in French and Flemish at http://www1.dekamer.be/FLWB/pdf/50/2165/50K2165003.pdf. It went into effect June 1, 2003.

Fiorini, Aude, "New Belgian Law on Same Sex Marriage and the PIL Implications," International & Comparative Law Quarterly, 52:1039-1049 (2003)

CANADA

Court decisions allowing same-sex marriage

EGALE Canada Inc. v. Canada (Attorney General) (also styled Barbeau v. British Columbia (Attorney General), 2003 BCCA 251, 13 B.C.L.R. 4th 1, 225 D.L.R. (4th) 472, [2003] 7 W.W.R. 22 (B.C. Ct.App., May 1, 2003), http://www.samesexmarriage.ca/legal/bc_case/Decision.htm. In this decision, the British Columbia Court of Appeals, following the lead of the Ontario Divisional Court, reformulated the common-law definition of marriage, but suspended the remedy for two years. After the Ontario Court of Appeal gave immediate effect to the remedy in that province on June 10, 2003, the British Columbia Court of Appeals followed suit, lifting its suspension of the remedy at 2003 BCCA 406, 15 B.C.L.R. (4th) 226, 228 D.L.R. (4th) 416 (July 8, 2003).

Halpern v. Attorney General, Docket C39172 (Ontario Court of Appeal, June 10, 2003), opinion on Court website, http://www.ontariocourts.on.ca/decisions/2003/june/halpernC39172.htm In this decision the Ontario Court of Appeal, with immediate effect, declared the existing common law definition of marriage to be invalid to the extent that it refers to "one man and one woman," and reformulated the common law definition of marriage as "the voluntary union for life of two persons to the exclusion of all others." ( The decision below was Halpern v. Canada (Attorney General), 215 D.L.R. (4th) 223, 60 O.R. (3d) 321, (Ontario Divisional Court, July 12, 2002); opinion at website of Sack Goldblatt Mitchell law firm: http://www.sgmlaw.com/userfiles/filesevent/file_1413620_halpern.PDF ). For more information, including factums (briefs) in the case, see the Equal Marriage website at http://www.samesexmarriage.ca/legal/on.html. )

Hendricks c. Procureur Général, [2002] R.J.Q. 2506 (Quebec Cour Supérieure, Sept.6, 2002), http://www.samesexmarriage.ca/legal/quebec_case/QuebecSept62002.pdf, affirmed as Ligue Catholique pour les Droits de l'Homme c. Hendricks, No. 500-09-012719-027 (Quebec Cour d'Appel, March 19, 2004), http://www.jugements.qc.ca/primeur/documents/liguecatholique-19032004.doc. (For English-language summary see http://www.samesexmarriage.ca/legal/quebec_case/decision031904.htm)

Dunbar v. Government of the Yukon Territory, 2004 YKSC 54 (Yukon Territory Supremne Court, July 14, 2004), http://www.samesexmarriage.ca/docs/yukon140704.pdf

N.W. v. Attorney General, 2004 SKQB 434 (Saskatchewan, Queen's Bench, Family Law Division, November 5, 2004), http://www.samesexmarriage.ca/docs/sask_decision.pdf

Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698, http://www.lexum.umontreal.ca/csc-scc/en/pub/2004/vol3/html/2004scr3_0698.html (Supreme Court of Canada, December 9, 2004). Held that it was within the power of the federal Parliament to recognize same-sex marriage; declined to answer the question whether the opposite-sex definition of marriage was consistent with the Charter.

Proposed legislation

Factum of the Attorney General of Canada, In the matter of . . . the Proposal for an Act respecting certian aspects of legal capacity for marriage for civil purposes . . ., Court File No. 29866 (in the Supreme Court of Canada) [Oct.24, 2003], http://www.samesexmarriage.ca/docs/scc/agc_factum.pdf.

An Act respecting certain aspects of legal capacity for marriage for civil purposes (Civil Marriage Act), Bill No. C-38, 38th Parliament 1st Session, first reading Feb.1, 2005, available through LEGISINFO, http://www.parl.gc.ca/LEGISINFO/index.asp?Lang=E. This bill was passed by the House of Commons on June 28, 2005, and the Senate July 19, and received Royal Assent July 20, 2005, becoming Statutes of Canada 2005 chapter 33.

Other sources

Equal Marriage for Same-Sex Couples, http://www.samesexmarriage.ca/

Foundation For Equal Families, http://www.ffef.ca/ Includes information on various court decisions.

Symposium: "Domestic Partnerships," Canadian Journal of Family Law, 17:11-282 (2000) (eight articles, including one on Europe and one on New South Wales)

Law Commission of Canada, "The Case for Same-Sex Marriage," in: Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (2001), http://www.lcc.gc.ca/en/themes/pr/cpra/chap4.asp#130e

MacDougall, Bruce, "The Celebration of Same-Sex Marriage," Ottawa Law Review 32:235-267 (Spring 2001)

Casswell, Donald G., "Moving Toward Same-Sex Marriage," Canadian Bar Review, 80:810-856 (Oct.2001)

Alberta Law Reform Institute, Recognition of rights and obligations in same sex relationships. (January 2002) (Research Paper no.21) [ Call no.KEA458.3.G39 R42 2002 ]

"Marriage and Legal Recognition of Same-Sex Unions: A Discussion Paper," Department of Justice Canada, Nov.2002, http://canada.justice.gc.ca/en/dept/pub/mar/3.html

Radbord, Joanna, & Martha McCarthy, "Marriage (P)reference - Equality, Dignity and Individual Voices," National Journal of Constitutional Law, 17:213-260 (2004)

Beattie, Steven, "Tracing the Steps Toward Same-Sex Union Recognition and Marriage in Canada," http://www.samesexmarriage.ca/docs/stevenbeattie.pdf

Hogg, Peter. "Canada: the Constitution and Same-Sex Marriage." International Journal of Constitutional Law, 4:712-721 (2006).

COSTA RICA

Sala Constitucional costarricense, "Resuelve Recurso sobre Matrimonios del Mismo Sexo" http://www.poder-judicial.go.cr/salaconstitucional/prensa/jur03.htm. Press release summarizing a May 23, 2006 decision upholding law prohibiting same-sex marriage.

EUROPE

Curci, Jonathan, "The Evolution of the Legal Concepts of 'Family' and 'Marriage' in the EU Legal System and Its Impact on Society." St. Thomas Law Review, 18:227-258 (2005).

Jensen, Steffen, "Recognition of Gay & Lesbian Partnerships in Europe," http://www.steff.suite.dk/partner .htm

Legal Recognition of Same-Sex Couples in Europe / edited by Katharina Boele-Woelki & Angelike Fuchs (Antwerpen: Intersentia, 2003)

Tan,Yvette, "New Forms of Cohabitation in Europe: Challenges for English Private International Law," in Perspectives for the Unification and Harmonisation of Family Law in Europe / Katharina Boele-Woelki (editor), 4:437-461 (Intersentia Publishing, 2003)

FRANCE

"Pacte civil de solidarité (PACS), Mode d'emploi" (Oct.2000), http://www.justice.gouv.fr/publicat/fichepacs.htm Includes links to law and decrees.

Martin, C. & Théry, I., "The PACS and Marriage and Cohabitation in France," International Journal of Law Policy & Family, 15:135-158 (Apr. 2001)

Richards, Claudina, "The Legal Recognition of Same-Sex Couples--the French Perspective," International & Comparative Law Quarterly, 51:305-324 (Apr.2002)

GERMANY

"Lebenspartnerschaftsgesetz" (LPartG) website of Lesben- und Schwulenverband in Deutschland, http://www.lsvd.de/bund/lpartg/index.html Includes German text of the Life Partnership Law of Feb.16,2001, as amended. The "Rechtssprechung und juristische Literatur" section includes a link to the July 17,2002 Constitutional Court decision upholding the LPartG. The "Rechtsvergleichung"section gives German texts of laws of other European countries.

Levitt, Stephen Ross, "New Legislation in Germany Concerning Same- Sex Unions," ILSA Journal of International and Comparative Law, 7:469-493 (Spring 2001)

THE NETHERLANDS

Justitie.nl [Netherlands, Ministry of Justice], family law page, http://www.justitie.nl/english/themes/family_law/, includes documents on same-sex marriage.

Radio Netherlands, "Gay Marriages in the Netherlands," http://www.rnw.nl/society/html/marriagesindex.html

"Text of Dutch law on the opening up of marriage for same-sex partners (plus explanatory memorandum) ," (unofficial translation by Kees Waaldijk, 2 May 2001), http://athena.leidenuniv.nl/rechten/meijers/index.php3?c=86

Maxwell, Nancy G., "Opening Civil Marriage to Same-Gender Couples: A Netherlands-United States Comparison," Arizona Journal of International and Comparative Law, 18:141-207 (2001)

NEW ZEALAND

New Zealand. Ministry of Justice, Same-Sex Couples and the Law, http://www.justice.govt.nz/pubs/reports/1999/same_sex/index.html First published in Aug. 1999; includes "Discussion Paper" and "Backgrounding the Issues."

New Zealand. Law Commission, Recognising Same-Sex Relationships (Study Paper 4) (Dec.1999). Available at http://www.lawcom.gov t.nz/studypapers.htm Includes English texts of Danish and Norwegian Registered Partnership Acts.

civilunions.org.nz site includes texts and analyses of pending Civil Unions Bill 2004 and Relationships (Statutory References) Bill 2004.

SCANDINAVIA

Kulow, Marianne DelPo, "Same Sex Marriage: a Scandinavian Perspective," Loyola of Los Angeles International & Comparative Law Review, 24:419-438 (2002).

SOUTH AFRICA

Fourie v. Minister of Home Affairs, Case No. 232/2003 (Supreme Court of Appeal of South Africa, November 30, 2004): declared that "under the Constitution the common law of marriage has been developed to include same-sex unions." Text of judgment in PDF and Word, and a media summary in Word, can all be retrieved by entering the case number in the search form at http://www.uovs.ac.za/fac/law/appeal/judgments.php? (University of the Free State, Faculty of Law). The judgment in PDF is also available on the website of the Lesbian and Gay Equality Project at http://www.equality.org.za/marriage/fourie.pdf Documents on appeal to Constitutional Court available at http://www.constitutionalcourt.org.za/uhtbin/cgisirsi/x/0/5?searchdata1=CCT60/04. The decision was affirmed by the Constitutional Court on December 1, 2005, but with a stay of twelve months to allow Parliament to correct the defects in the existing legislation. Full text of the Constitutional Court judgment is available at http://www.constitutionalcourt.org.za/Archimages/5257.PDF. The decision was implemented by:

Civil Union Act, 2006, effective Nov.30,2006, Bill No. B26B-06, http://www.info.gov.za/gazette/bills/2006/b26b-06.pdf.

For further information on the South African law, see this page on the GayPasg web site: http://www.gaypasg.org/GayPASG/Legal%20Joinings/SA%20SSM.htm.

SPAIN

"Anteproyecto de Reforma del Código Civil que Permitrá el Matrimonio entre Personas del Mismo Sexo," in Referencia del Consejo de Ministros, 1 Oct. 2004, http://www.la-moncloa.es/web/asp/muestraDocImp.asp?Codigo=c0110040, This is an announcement of a draft bill approved by the Cabinet, to permit same-sex marriage. The bill is also discussed in the first five paragraphs of a press release at http://www.la-moncloa.es/web/asp/muestraDocImp.asp?Codigo=r0110040. [Thanks to Enrique Carnero Rojo for identifying these two documents and supplying the links.]

Various other bills relating to same-sex marriage can be retrieved on the website of the Congreso de los Diputados, in the search form on the page "Iniciativas Parlamentarias - VIII Legislatura" at http://www.congreso.es/docu/iniciativas/in8u_pant.html, by searching for the phrase "mismo sexo" (in quotation marks), in the "Título" field.

According to Jurist at http://jurist.law.pitt.edu/gazette/2005/06/spanish-same-sex-marriage-law-spain-cd.php, the law approved by the Congreso de los Diputados on June 30, 2005 is the Proyecto de Ley 121/000018, found in the Boletín Oficial of January 21,2005, http://estaticos.elmundo.es/documentos/2005/06/30/ley_matrimonio_hom.pdf.

SWITZERLAND

Bundesgesetz über die eingetragene Partnerschaft gleichgeschlechtlicher Paare [Federal Law on Registered Partnerships of Same Sex Couples] (Partnerschaftsgesetz, PartG), SR 211.311, http://www.admin.ch/ch/d/sr/211_231/ (effective Jan.1, 2007)

UNITED KINGDOM

Murphy, John, "The Recognition of Same-Sex Families in Britain: the Role of Private International Law," International Journal of Law, Policy and the Family, 16:181-201 (2002)

Women & Equality Unit, "Civil Partnership," http://www.womenandequalityunit.gov.uk/lgbt/partnership.htm, includes links to the June 2003 consultation document Civil Partnership: a framework for the legal recognition of same-sex couples, and to the Nov.2003 Responses to Civil Partnership, and states that "The Government is committed to introducing legislation for a civil partnership scheme as soon as Parliamentary time allows."

Civil Partnership Registration: A legal status for committed same-sex couples in Scotland, http://www.scotland.gov.uk/consultations/justice/cprs-00.asp (Scottish Executive consultation paper, [Sept.] 2003).

Civil Partnership Bill 2003/04, http://www.galha.org/dir/law/cpa2004.html (Gay and Lesbian Humanist Association site with links to bill text and related documents)

Crown, Barry, "Civil Partnership in the U.K.--Some International Problems," New York Law School Law Review, 48:697-710 (2003/04)

Wilkinson v. Kitzinger, [2006] EWHC 2022 (Fam), http://www.bailii.org/ew/cases/EWHC/Fam/2006/2022.html (July 31,2006). Declined to recognize Canadian same-sex marriage as valid in the U.K.

Wright, Wade K., "The Tide in Favour of Equality: Same-Sex Marriage in Canada and England and Wales," International Journal of Law, Policy & the Family, 20: 249-285 (2006).

International Aspects

Family, Unvalued: Discrimination, Denial, and the Fate of Binational Same-Sex Couples under U.S. Law (Human Rights Watch, 2006). Available at http://hrw.org/reports/2006/us0506/