The State of the State-by-State Fight for Gay Marriage

There are currently 14 U.S. states where same-sex couples have the legal right to marry. But that number could grow, and soon. 

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There are currently 14 states in the U.S. where same-sex couples have the legal right to marry. But that number could grow, and soon, as the push to open up marriage benefits to more couples continues across the country. That push began in earnest after the Supreme Court's decision on the Defense of Marriage Act, which opened up federal marriage benefits to anyone in a legal marriage. New Jersey is the latest state to grant same-sex couples marriage licenses after a judge ruled the state's ban on gay marriage unconstitutional and its Republican governor Chris Christie decided to end the legal fight to keep the ban. And while there are many similar court battles at the moment, there are several states that look like the most likely to be the next to legalize gay marriage. 

Likely Contenders:


On Wednesday, Hawaii's senate approved a bill that would legalize gay marriage in the state, after governor Neil Abercrombie called a special legislative session just to address the state's current constitutional ban. The bill passed 20-4, and it's expected to pass the state's House of Representatives, too. Abercrombie's administration has previously legalized civil unions in the state, and his 2010 start as the state's governor ushered in a big swing back to the left for the state's gay marriage debate. A Hawaii court decided in 1993 that a ban on same-sex marriage was discriminatory, but voters passed a constitutional provision banning gay marriages in 1998.

There's one potential sticking point on the current bill, however: religious exemptions. The current measure would exempt clergy members from abiding by the state's law, but not other religious organizations. It's expected that the House of Representatives would add more so-called "religious liberty" exemptions into the bill before passage. In any case, Abercrombie has made it very clear that he wants and expects to sign the legalization of same-sex marriage into law as soon as possible.

New Mexico

While some counties in New Mexico are already performing same-sex marriages, the state's Supreme Court has yet to decide on the subject state-wide. But it will, and soon: last week, the high court heard arguments on the subject in a a packed court house. The case in the state is like no other in the U.S., as New Mexico has the distinction of being the only state with no law allowing or barring same-sex marriage, even though the state functions as if the practice is banned.

And that's kind of how the fight for same-sex marriage in the state found its groove: a single clerk in a single county just began issuing licenses for same-sex marriages, daring the courts to find a constitutional precedent to stop him. Others followed suit, either independently or by court order, connected to an existing lawsuit challenging the state's gay marriage stance. Last week's arguments before the state Supreme Court case pitted a handful of Republican lawmakers, represented by an attorney for a Christian group, against same-sex couples in the state. The anti-gay marriage argument posits that the state's laws at least imply a ban on same-sex marriage by not explicitly allowing it, and that the issue should be decided by voters and legislators anyway. The case for same-sex marriage relies on the state's constitution, which includes a provision barring discrimination on the basis of sexual orientation. That's the provision cited in previous state court decisions ruling in favor of same-sex couples. The court's decision isn't a sure thing either way. But the state will know where it stands on the issue in the near future.

Honorable Mentions:


While voters approved a constitutional ban on gay marriage in 2006, a majority of Virginians now say they oppose it. Virginia also refuses to recognize same-sex marriages performed in other states, and the law is facing a number of legal challenges. One suit, focusing on the out-of-state ban, comes from the legal team that helped to overturn California's Proposition 8. Earlier this week, lawyers for a separate case challenging both parts of the ban asked a judge to certify it as a class action suit.


Last spring, the Illinois senate passed a bill that would legalize gay marriage in the state, a bill that has since gone nowhere in the state House. But legislators are feeling pressure from activists on both sides to make a decision on the bill this fall, during the legislature's brief veto session. Democratic Gov. Pat Quinn has said he would sign the bill into law if it ever reaches his desk, but House action on the existing measure is far from a sure thing, nor is it clear if the bill's sponsors have enough votes to get it there if a vote does come up.


The fight for gay marriage here is a pretty rowdy one, starting with state Attorney General Kathleen Kane's refusal to defend the state's gay marriage ban in court. Kane announced her decision in the face of a lawsuit after the federal Supreme Court's DOMA decision, leaving Pennsylvania's future defense of its marriage laws to the governor's own legal team. But Governor Tom Corbett isn't interested in pulling a Christie and stepping out of this fight anytime soon, meaning the state's road to marriage equality is long, and not certain to end in its favor. His team sued a Montgomery County clerk who decided to issue gay marriage licenses anyway. The county appealed a court-ordered ban on the practice. The legislative front is less promising than the current court battles in the state: Republicans control the governorship and both houses of the state legislature. And while Corbett hasn't said whether he'd veto a bill legalizing gay marriage in the state, he has compared gay marriage to incest.

The above states, it should be noted, aren't the only players here. Some other examples: Earlier this month, a county clerk in North Carolina announced that he would accept applications for same-sex marriages, in response to state Attorney General Roy Cooper's statement that he personally supports them. On Thursday, a Colorado couple filed suit against the state's same-sex marriage ban. A Michigan suit challenging state law goes to trial in February. Ohio faces a legal challenge seeking recognition of an out-of-state same-sex marriage, despite the state's ban. In Oregon, it looks likely that voters will again be asked to weigh in on the state's current ban, and the state just decided to recognize out-of-state marriages. There are legal challenges exist in other, more conservative states, too: Four same-sex couples sued Tennessee in October over its gay marriage ban. Mississippi will probably be one of the last states to allow gay marriage, but even Mississippi has a current case asking the state to recognize an out-of-state marriage — so that the couple can get a divorce.

This article is from the archive of our partner The Wire.