Durham Law Student, Jesse Bachir, explores the legal position of same-sex marriage in the US.
Same-sex marriage has seen some very good progress lately, especially with the recent election. In fact, the election brought same-sex marriage to Maine, Maryland and Washington by referendum – the first time in US history that same-sex marriage has been legalised via popular vote. Minnesota voters also defeated a proposed constitutional amendment to ban same-sex marriage at the ballots during the election. All of this, along with openly gay, lesbian and transgender representatives being elected to national and state legislators, as well as President Obama being elected for a second term, made this past election a very exciting time for the LGBTQ community. However, there are still some major hurdles to overcome for same-sex marriage in the United States
Marriage in the US 101
Very briefly, it is important to note the distinction between state and federal powers in the United States before continuing with any discussions of same-sex marriage within the US. Marriage is a right reserved by the states – meaning that they have the power to legislate as to the definitions and requirements of marriage. If you want to get married, you must go to the state and follow their particular rules governing marriage.
Once you are married, you are conferred apposite rights and privileges by the state as well as the Federal Government. However, it is up to each individual state to determine who is married within their jurisdiction – meaning that in order to gain access to federal marriage rights, you must first have access to state marriage rights.