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What makes a marriage?

Same-sex marriages - not currently legal in any state - are a hot issue in at least half the nation's state legislatures.

The debate arises from a pending Hawaiian court decision that could make same-sex marriages legal in that state. If those marriages are recognized in Hawaii, any state without laws expressly forbidding same-sex unions may have to honor them under the Full Faith and Credit Clause of the U.S. Constitution, which generally requires states to recognize each others' laws.

In 1991, three couples in Hawaii sued the state, saying the law prohibiting marriage licenses for couples of the same sex violated their rights to privacy and equal protection under the state constitution. The Hawaii Supreme Court concluded that there was no right to same-sex marriages under the constitution's privacy clause, but did find that the couples were denied equal protection under a provision prohibiting discrimination based on gender, unless the state can show a compelling interest for the denial. The case is set for trial in July.

In response to the state high court decision, the Hawaii Legislature passed legislation in 1994 that declared the state's marriage laws were intended to apply only to male-female couples. Legislators amended the law to read that "a valid marriage contract shall be only between a man and a woman." A bill being considered by the Senate this session would put the question on the ballot.

With all this in mind, lawmakers in 27 states have introduced legislation to strengthen or clarify their marriage policies. Nebraska considered a bill that would legalize same-sex marriages, but bills in the other states call for prohibiting them or for refusing to recognize them or both.

By early May, Alaska, Kansas and South Dakota had adopted legislation to clarify definitions of marriage. Georgia passed a bill declaring that same-sex marriages violate the public policy of the state and any such marriages entered into elsewhere will not be recognized there. New laws in Idaho and Arizona are similar. Bills in Tennessee and Illinois have gone to the governor. Colorado's governor vetoed a bill passed by the legislature.

Utah was among the first states to pass legislation in response to the Hawaii situation. Lawmakers added a provision in 1995 that generally recognizes other states' marriage laws, unless they are contrary to its own. About 18 states already do this. Utah is one of only eight states (Hawaii, Indiana, Louisiana, Maryland, New Hampshire, Texas, Virginia and Utah) that already have laws specifically prohibiting same-sex marriages.

Laws already on the books in about 20 states generally refer to marriage as being between a man and a woman and at least 12 states have case law or attorney general opinions against same-sex marriages. However, if such marriages become legal in Hawaii, an explosion of litigation on the issue is likely. States are scrambling to clarify their laws because those that can demonstrate a strong public policy against same-sex marriages may have an easier time refusing to honor unions solemnized elsewhere, than those states with laws that explicitly recognize out-of-state marriages.
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Title Annotation:state marriage laws
Publication:State Legislatures
Date:Jun 1, 1996
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