Kim Tubbs-Nelson
SLIS 5647.080 5/2/98

Same-Sex Marriage Legal Resources

Scope

United States, individual states

Definition of Marriage

"Legal union of one man and one woman as husband and wife." - BLACK'S LAW DICTIONARY 972 (6th ed. 1990)

Suggestions for Search Terms

same sex/same gender/homosexual/gay/lesbian AND marriage/domestic partner/spouse/husband and wife

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PRIMARY SOURCES

1. Judicial Sources (Cases)

United States

• United States v. Layton, D.C.Fla., 68 F.Supp. 247.

  In order to constitute a valid marriage, each party must be competent to contract marriage.

• Loving v. Virginia, 388 U.S. 1, 18 L.Ed. 2Nd 1010, 87 S.Ct. 1817.

  Marriage is one of the basic civil rights of man, fundamental to our very existence and survival.

• Meyer v. Nebraska,    , 262 U.S. 390, 67 L.Ed. 1042, 43 S.Ct. 625.

  Marriage is a right of free men, which can't be prohibited except for an important social objective and by reasonable means.

• Haddock v. Haddock, 201 U.S. 562, 50 L.Ed. 867, 26 S.Ct. 525.

  The power to regulate marriages within a state belongs to that state and not to Congress.

Hawaii

• Baehr v. Lewin, 74 Haw. 530 (1993).

  The court found that denial of a marriage license to same-sex couples constituted sex discrimination and therefore violated the equal protection provision of Hawaii's constitution.

• Baehr v. Miike, Civil Case No. 91-1394, 1st Cir. Ct. State of Hawaii (1996).
  Judge Kevin Chang ruled that the State of Hawaii had no compelling state interest to disallow marriage for same-sex couples. In Nov. 1998, a ballot measure will put the constitutional question to voters to allow the legislature to reserve marriages to opposite-sex couples.

Texas

• Slayton v. State, 633 S.W.2d 934 (1982).

  In Texas, it is not possible for marriage to exist between persons of same sex, as they may not marry one another, either with or without the formalities of law.

• Franklin v. Smalldridge, 616 S.W.2d 655 (1981).

  To establish any valid marriage, parties must possess legal capacity to marry and there must not be any legal impediment prohibiting the marriage contract.

2. Legislative Sources (Statutes)

• Defense of Marriage Act of 1996, 28 U.S.C. $115 (1996).
  Public Law 104-199 is designed "To define and protect the institution of marriage." The Defense of Marriage Act (DOMA) amends the code to allow each state, territory, or possession of the U.S. or Indian tribe to decide for itself whether to recognize a same-sex marriage from another state, territory, etc. It also defines marriage for federal purposes as "only a legal union between one man and one woman as husband and wife and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

SECONDARY SOURCES

1. Legal Encyclopedias

• 55 C.J.S. Marriage $10 (1997).

  Covers capacities of parties in general to marry. For a valid marriage, each party must be competent to contract marriage.

• 52 AM. JUR. 2d Marriage $9 (1970).

  Covers the general right to marry under topic of governmental control of marriage. By definition, marriage can be entered into only by persons of opposite sex.

2. Legal Annotations

• Peter G. Guthrie, Annotation, Marriage Between Persons of the Same Sex, 63 A.L.R. FED. 1199 (1975).

3. Legal Journals/Periodicals/Newspapers (Serials)

• D.M. Guillerman, Comment, The Defense of Marriage Act: the Latest Maneuver in the Continuing Battle to Legalize Same-Sex Marriage, 34 HOUS. L. REV. 425 (1997).
  
• J. Brienza, Same-Sex Marriage: Equal Rights or the Death of Family?, 32 TRIAL 12 (1996).
  
• K.D. Kendell, Principles and Prejudice: Lesbian and Gay Civil Marriage and the Realization of Equality, 22 J. CONTEMP. L. 81 (1996).
  
• L.M. Kohn, A Reply to "Principles and Prejudice": Marriage and the Realization that Principles Win Over Political Will, 22 J. CONTEMP. L. 293 (1996).
  
• L.M. Kohm, The Homosexual "Union ": Should Gay and Lesbian Partnerships Be Granted the Same Status as Marriage?, 22 J. CONTEMP. L. 51 (1996).
  
• M.A. Fajer, Toward Respectful Representation: Some Thoughts on Selling Same-Sex Marriage, 15 YALE L. & POL'Y REV. 599 (1997).

4. Treatises (Monographs)

• MARK STRASSER, LEGALLY WED: SAME-SEX MARRIAGE AND THE CONSTITUTION (1997).

  Covers U.S. marriage law including definition of marriage, equal protection, fundamental interests, custody/adoption of children, full faith and credit, and the DOMA.

• ON THE ROAD TO SAME-SEX MARRIAGE (Robert P. Cabaj & David W. Purcell eds., 1998).

  Covers the history of gay acceptance and relationships, current trends in same-sex marriage, gay couples and families, mental health issues, comparison of mixed-race and same-sex marriage, legal issues, ceremonies and religion, international trends in same-sex marriage, and resources to help protect same-sex relationships.

5. Internet Sources

• Equal Marriage Rights Home Page (last modified June 19, 1997) <http://www.ucc.gu.uwa.edu.au/~rod/gay/marriage.html>.
  
• Evan Wolfson, Lambda Legal Defense and Education Fund Bibliography of Equal Marriage Rights for Lesbians and Gay Men (last modified Dec.19, 1996) <http://www.ftm.org/archive/lldef/bibliography.htmll>.
  
• State of Hawaii Report on the Commission on Sexual Orientation and the Law (last modified Dec. 8, 1995) <http://www.hawaii.gov/lrb/solcvr.html>.
  

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