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Legal Commentary

: Balkinization

The surprisingly quick triumph of the same-sex marriage movement

By Jack M. Balkin

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The same-sex marriage movement must now be acknowledged to be one of the most rapidly successful social movements in the history of the United States, revolutionizing the law in an enormous part of the country in less than ten years.

It may now be hard to recall that ten years ago, no state recognized same-sex relationships. On December 20, 1999, Vermont became the first state to give same-sex relationships a status functionally equivalent to marriage when its Supreme Court declared that gay couples were entitled under the state constitution to the same legal rights as married heterosexual couples. The state constitution?s ?common benefits? clause, which required that government benefits be shared equally by the entire community, required that gay people not be excluded from legal benefits and protections available to heterosexuals. The legislature soon responded by enacting a law creating the status of ?civil unions,? with all the rights of marriage but not the name. California soon passed a similar law with no prompting from the courts. In 2003, the Massachusetts Supreme Court held that gay couples were entitled to marriage licenses, and the state started issuing them in May, 2004. Now three other states recognize same-sex marriage: Connecticut, Iowa, and Vermont. The functional equivalent, denominated ?civil unions? or ?domestic partnerships,? are recognized in four states: California (which briefly recognized them as marriages), New Hampshire, New Jersey, and Oregon.

Taking these eight states together, more than a fifth of the population of the United States lives in a jurisdiction that recognizes same-sex relationships as marriages or their functional equivalent. Based on U.S. Census population figures for 2008: U.S., 304,059,724; Massachusetts, 6,497,967; Connecticut, 3,501,252; Iowa, 3,002,555; Vermont, 621,270; California, 36,756,666; New Hampshire, 1,315,809; New Jersey, 8,682,661; Oregon, 3,790,060. The first four of these call the relationships ?marriage,? while the others use ?domestic partnerships? or ?civil unions.? See Cal. Fam. Code її297-299.6 (West 2007); N.H. Rev. Stat. Ann. її457-A:1 to 457-A:8 (LexisNexis 2008); N.J. Stat. Ann. її26:8A-1 to 26:8A-13 (West 2007); N.J. Stat. Ann. її37:1-28 to 37:1-36 (West 2008); Or. Rev. Stat. note following ї106.990 (2007).The eight states combined add up to 64,168,240, or 21% of the U.S. All figures are taken from http://factfinder.census.gov.)

The New York Times, reporting on the Vermont legislature?s decision to recognize such marriages, put the story on the front page, above the fold. I predict that soon similar developments in other states will be less prominently reported. It will simply be too frequent a phenomenon to be interesting.

Full post as published by Balkinization on April 10, 2009 (boomark / email).