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As with Canada, the United States can claim a long history of same-sex couples
requesting marriage licences. As far back as 1971, Jack Baker and Michael
McConnell, a gay couple from Minnesota, filed a lawsuit claiming the right to marry
(Eskridge, 1996, p.48). However, the scale of the challenge facing marriage equality
activists was made clear in the Minnesota Supreme Court’s ruling, Baker v. Nelson,
which claimed an exclusively heterosexual pedigree for marriage dating as far back
as the Book of Genesis (Clarkson-Freeman, 2004, p. 4). The case for marriage
equality was not strengthened by the continuing legal prohibition of sodomy, with
legislation in some states dating back to the British colonial era. Legislation
prohibiting sodomy remained in force in all US states until 1961 when Illinois became
the first to decriminalise. California followed suit in 1975, though thirteen states still
operated sodomy laws as recently as 2003, when they were struck down by the U.S.
Supreme Court in Lawrence v. Texas (Bala, 2006).
The relatively late dismantling of sodomy laws has exerted a chilling effect on LGBT
rights in the US. Culturally, these laws have provided a highly authoritative
statement of hetero-normative stigma, whereas in legal terms, they have been
invoked to thwart LGBT equality in a range of policy areas including employment,
housing and child custody. (Green, 1997, p.145). The interesting, if contested,
parallels between legal restrictions on same-sex and interracial marriage in the
United States are also relevant, and it is worth recalling the terms of Loving v.
Virginia, the US Supreme Court ruling that set aside the remaining state-level bans
on interracial marriage back in 1967. Loving v. Virginia explicitly frames marriage not
only as a fundamental right, but also as a legitimate personal objective, asserting
that, “the freedom to marry has long been recognised as one of the vital personal
rights essential to the orderly pursuit of happiness by free men [sic].” (findlaw.com,
2012 (online)).
The Defense of Marriage Act, 1996
South Dakota, Tennessee, Texas, Utah, Virginia, and Wisconsin.
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