A Brief History Of Same-Sex Marriage Laws

image - Flickr / Yuji
image – Flickr / Yuji

Air Force Captain Carlos Wilkinson married his same-sex partner in July 2013 exactly one month after the US Supreme Court issued its Windsor ruling which declared the Defense of Marriage Act unconstitutional. The ruling didn’t erase the problems created by inconsistency in state law where some states legalize gay marriage and others don’t recognize the unions. Federal courts continue to deal with rulings and appeals while many state-level questions and problems remain.

Married in California, Wilkinson and his husband Wray now live in Nevada where same-sex marriage is not recognized. When Wilkinson and his husband applied for a VA home loan, the VA only guaranteed half the funds due to the marriage laws in Nevada. If Wilkinson had filed as single, the VA would have backed the entire loan.

The American Military Partners Association, an advocacy group for gay military members, responded by filing a civil suit against the VA.

“We cannot allow our country’s veterans to be denied the benefits they’ve earned,” said Stephen Peters the AMPA President.

A Look Back

The first written mention of same-sex marriage came in the early Roman Empire and was normally reported in a critical or satirical way.

Elagabalus, a child emperor, called Hierocles, his chariot driver, his “husband”. Elagabalus would also go on to marry Zoticus, an athlete, in a over-the-top public ceremony and celebration.

Nero was the first Roman emperor to have married a man. Nero’s first marriage was to one of his former slaves, Pythagoras. Later, Nero married Sporus in a public ceremony that included all of the niceties of matrimony.

Christian emperor Constantius II outlawed same-sex marriage in Rome in 342 AD. He also ordered public executions for same-sex couples.


Pedro Diaz and Muno Vandilaz were married in Rairiz de Veiga, Spain on April 16, 1061. Married by a priest in a tiny chapel, documentation about the church wedding were discovered at the Monastery of San Salvador de Celanova.


The first country to recognize same-sex relationships in modern times was Denmark. Establishing “registered partnerships”, the law treated same-sex relationships very much like marriage.

The Netherlands, in 2001, became the first nation to grant same-sex marriage. Netherlands was followed by Belgium, 2003, Spain, 2005, Canada, 2005, South Africa, 2006 and others followed.

In America, nineteen states and Washington DC permit same-sex marriage. The first state in the US to do so was Massachusetts in 2004.

A total of 19 states, plus Washington DC, now have laws allowing same-sex couples to marry.

In 14 others, judges have given decisions favoring the marriage of same-sex couples. Many of those rulings are now on hold while waiting on appellate courts to rule.

Judges have stricken marriage bans in twelve states while in Ohio and Tennessee, judges have issued limited decisions supporting gay-marriage.

Colorado allows civil unions between same-sex couples and Nevada allows for a broad definition of domestic partnership.

Forty-four percent of American citizens live in a state that gives same-sex couples the freedom to marry. 48 percent live in a jurisdiction that gives some form of protection for same-sex couples.

Notable Court Cases

In June, 2013, the US Supreme Court issued two major rulings which bolstered same-sex marriage in America.

In the first case, the Supreme Court decided that married same-sex couples should be able to get federal benefits. The second involved a controversial case from California. The Supreme Court declined to make a decision on the California case which effectively allowed for same-sex marriages in the state.

The twin rulings don’t affect laws banning same-sex marriage throughout the nation. The court also declined to discuss the existence of a constitutional right to same-sex marriages. However, by clearing the path for same-sex marriage in California, the court basically increased the number of states allowing same-sex unions.

The debate in America over same-sex marriage and divorce is intense and fast-moving. Justice Anthony Kennedy announced the majority opinion which struck down the federal law. Kennedy’s tone and inflection seemed to indicate that he knew he was addressing a civil rights landmark. When he finished, he sat staring straight ahead while Justice Antonin Scalia spoke his dissent.

The vote in the case which struck down the federal Defense of Marriage Act was 5 to 4. The ruling effectively extends immediately federal benefits to couples married in states allowing same-sex marriage. It also opens the door for the president to broaden other benefits through the use of executive actions.

Current Status

In all, there are 32 states with cases working their way through the courts. Most of the lawsuits challenge same-sex marriage bans or are asking states to recognize gay marriage performed in other states.

Court cases in three states, Arkansas, Colorado and Idaho, are being closely watched by people on both sides of the issue.


In May, a state judge struck down the state’s ban on same-sex marriage. The state Supreme Court stopped same-sex marriage and is deciding the appeal of state officials. Same-sex couples are also suing Arkansas in federal court and the attorney general’s office has asked the court that any decision in both cases be held off while the US Supreme Court decides to hear a case from Utah.


Some county clerks in the state began distributing marriage licenses to same-sex couples in June despite the state-wide ban on gay unions. On July 9, a state judge stroke the ban but put his ruling on hold while the state follows the appeals process. Meanwhile, the Republican Attorney General, John Suthers says, “It’s only a matter of time until gay marriage is legal…” but he’ll continue to defend the law.


In Boise, a city with more Mormons per capita than Salt Lake City, state officials are appealing a federal judge’s ruling to overturn the state ban regarding same-sex unions. The 9th Circuit Court of Appeals in San Francisco will hear the case on September 8, the same day it will review appeals from Hawaii and Nevada.

While the appeals continue, many same-sex couples are left in a legal limbo.

In North Carolina, Richard Jernigan is seeking a spousal supplement through his retired husband’s Social Security benefits.

The income from odd jobs and his existing benefits is barely enough. Almost $200 could be added to the couple’s monthly income if the Social Security Administration would honor same-sex marriage.

“That money would be a tremendous help,” Jernigan said. “We are literally in a state of poverty, and yet we don’t qualify for any of the other assistance because they don’t count us as married.” Thought Catalog Logo Mark

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