August 12

On August 12, 2004, the California Supreme Court voided prior same-sex marriages performed in the state of California.

On February 12, 2004, the City Clerk's office of San Francisco, at the direction of mayor Gavin Newsom, started issuing marriage licenses to same-sex couples. The position of the mayor and the city was that denying marriage licenses denied Equal Protection under the California Constitution. The Clerk's office was immediately swamped with couples wanting to get married.

The courts were quickly called in. Marriage is a state-by-state issue, so marriage issues are handled by state courts. At the federal level, Congress can only control how marriage is treated between states. Under the Full Faith and Credit Clause of the Constitution, judicial acts such as marriage are to get equal treatment in every state; marriages performed in one state must be respected by other states. Domestic partnerships are not required to be recognized by other states, although some states will recognize them.

However, Congress passed the Defense of Marriage Act in 1996, which decreed that a marriage was only between one man and one woman, and any other arrangement did not have to be respected by any other state.

While to many, Equal Protection should make outlawing gay marriages unconstitutional, justification comes on three fronts.

Judges who have upheld bans on gay marriages say that homosexuals are not banned from getting married. They have the same right to marry someone of the opposite sex as heterosexuals do. Hence, no discrimination.

The next issue is level of scrutiny. In racial discrimination, a standard of strict scrutiny is applied. Strict scrutiny means that the government must have a compelling state interest in discriminating against a protected class. However, homosexuals are not a protected class. In their case, only rational basis applies. That means the government may discriminate, as long as they have a defensible reason.

Finally, judges have been hesitant to interfere with the actions of a legally elected body; Anderson v King County, for example, respected the state legislature passing a state version of DOMA. The Washington Supreme court was sympathetic, but told the petitioners to make their case to the voters.

At this time, same-sex marriages are available in Massachussets, Connecticut, and Iowa. Maine, New Hampshire, and Vermont have laws on the books that have not yet come into effect.