Same-Sex Marriage Cases in State Courts – (Update)

Contact: Lorri Montgomery
Director of Communications
National Center for State Courts

Williamsburg, Va. (June 26, 2013) – Today the Supreme Court struck down as unconstitutional the 1996 Defense of Marriage Act that denies federal benefits to same-sex couples who are legally married in the states where they live. Additionally, in Hollingsworth v. Perry the Court cleared the way for same-sex marriage in California, declining to rule on Proposition 8, which defined marriage as between one man and one woman.

The issue of same-sex marriage is not new to many of the nation’s state courts.  The National Center for State Courts provides this overview on these cases that have come before the state high courts.

Legalization of same-sex marriage first reached state supreme courts over 40 years ago in the Minnesota Supreme Court case Baker v. Nelson. The Minnesota Supreme Court held that Minnesota law limited marriage to different-sex couples, and that doing so did not violate due process or equal protection. In 2004, the Supreme Judicial Court of Massachusetts held in Goodridge v. Department of Public Health that allowing only heterosexual couples to marry was unconstitutional, making Massachusetts the first state to affirm that same-sex couples have a right to marry. Since Massachusetts, Iowa and Connecticut have also legalized same-sex marriage through state court action.

State Supreme Court Cases


In 1993, the Hawaii Supreme was the first state supreme court to rule, in Baehr v. Miike, that denying marriage to same-sex couples constituted discrimination based on sex and should be subject to strict scrutiny. However,before the trial court could determine whether the statute satisfied the strict scrutiny test, Hawaii passed a constitutional amendment limiting marriage to same-sex couples.


In 1999, the Vermont Supreme Court, in Baker v. Vermont, considered the related issue of whether civil unions should be recognized by the state, affording same-sex couples many of the benefits of marriage. The Vermont Supreme Court held that under the Vermont Constitution’s Common Benefit Clause, same-sex couples should be afforded rights similar to those of married couples. However, the Vermont Supreme Court avoided the issue of a right to marriage, holding that the Vermont Marriage Statutes were specific to heterosexual couples.


In 2002, the Kansas Supreme Court in  Inre Gardiner Estate voided a marriage between a man and a transsexual woman, holding that a transsexual woman was a not a woman in the meaning of the statute, and that the Kansas marriage law limited marriage to heterosexual couples. The appeal in In re Gardiner Estate merely alleged that the marriage was valid under Kansas law and not that Kansas law violated the equal protection or due process clauses of the Kansas Constitution. 


In 2003, the Supreme Judicial Court of Massachusetts became the first state court to find that same-sex couples had the right to marry, effectively legalizing same-sex marriage. In Goodridge v. Department of Public Health, the Court held that a same-sex marriage ban violated the due process and equal protection clauses of the Massachusetts Constitution because there was no rational basis for denying same-sex couples the right to marry.

New Jersey

In Lewis v. Harris (2006) the New Jersey Supreme Court held that withholding benefits to same sex couples violated the equal protection clause of the New Jersey Constitution under rational basis review. The New Jersey Supreme Court gave the New Jersey Legislature the option of amending the marriage statute to include same-sex couples or establishing civil unions. The Legislature adopted the latter approach, and in 2010 the New Jersey Supreme Court denied a motion to reopen the case which alleged that the Legislature was noncompliant.


The Maryland Court of Appeals, Maryland’s highest court, considered the issue of same-sex marriage in Conaway v. Dean, in 2007. The Court of Appeals held that a statutory ban on same-sex marriages did not violate the equal protection or due process clauses of the Maryland Constitution. The Court applied rational basis scrutiny,holding that the ban on same-sex marriage applied equally to men and women and thus did not discriminate on the basis of gender.


In Kerrigan and Mock v. Connecticut Department of Public Health (2008), the Connecticut Supreme Court held that denying same-sex couples the right to marry violated Connecticut’s equal protection clause under heightened scrutiny.Writing for the majority, Justice Richard Palmer stated: “To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others. The guarantee of equal protection under the law, and our obligation to uphold that command, forbids us from doing so.”


In Varnum v. Brien, the Iowa Supreme Court held in a unanimous decision that limiting marriage to same-sex couples violated the equal protection clause of the Iowa Constitution, applying heightened scrutiny. In the aftermath of this decision, three of the justices lost their retention elections in 2010. A fourth justice was retained in the 2012 elections.


On March 11, 2004, the California Supreme Court declared marriage licenses issued to same-sex couples void because they bypassed state law. On May 15, 2008, the Court held in In re Marriage Cases that the statutory ban on same-sex marriage violated the equal protection clause of the California Constitution under strict scrutiny. However, on November 4, 2008, California voters approved Proposition 8, denying marriage in California to same-sex couples. The next year, in Strauss v. Horton, the California Supreme Court upheld Proposition 8 as a lawful amendment.

On the same day as the California Supreme Court decision in Strauss v. Horton, the American Foundation for Equal Rights (AFER) filed suit in the United States District Court challenging Proposition 8 under the United States Constitution. After a full trial, Judge Walker ruled that Proposition 8 violated both the equal protection and due process clauses of the United States Constitution under strict scrutiny.


The NCSC Backgrounder is designed to provide the media with statistics and facts related to current issues of interest.

The National Center for State Courts, headquartered in Williamsburg, Va., is a nonprofit organization dedicated to improving the administration of justice by providing leadership and service to the state courts. Founded in 1971 by the Conference of Chief Justices and Chief Justice of the United States Warren E. Burger, NCSC provides education, training, technology, management, and research services to the nation's state courts.