Same-Sex Marriage: A Selective Bibliography of the Legal Literature
compiled by Paul Axel-Lute
originally published September 2002
last updated March 7, 2017/ DC
The movement to open civil marriage to same-sex couples achieved its first temporary success in 1993 with the decision of the Hawaii Supreme Court that the restriction of marriage to opposite-sex couples would be presumed unconstitutional unless the state could demonstrate that it furthered a compelling state interest. In response to this decision the state constitution was amended to allow the legislature to preserve that restriction. A similar court decision in Alaska in 1998 led to an even stronger constitutional amendment, itself defining marriage as between one man and one woman. In further reaction to the Hawaii case, the federal Defense of Marriage Act (1996) provided that no state would be required to recognize a same-sex marriage from another state, and also defined marriage for federal-law purposes as opposite-sex. The majority of the states also passed their own "marriage protection acts." (In November 2004, eleven more U.S. states amended their constitutions to prohibit same-sex marriage.)
In Vermont, after that state's Supreme Court held in 1999 that the state must extend to same- sex couples the same benefits that married couples receive, the legislature in 2000 created the status of "civil union" to fulfill that mandate. Connecticut adopted a similar civil union law in 2005.
In 2001, the Netherlands became the first country to open civil marriage to same-sex couples. Belgium became the second in 2003. In 2002 through 2004, courts in six Canadian provinces held that the opposite-sex definition of marriage was contrary to Canada's Charter of Rights, and in 2005 federal legislation extended same-sex marriage to all of Canada. Same-sex marriage was also legalized in Spain in 2005 , in South Africa in 2006, in Norway and Sweden effective in 2009, in Portugal, Iceland, and Argentina effective in 2010, and in Colombia, Brazil, France, New Zealand, and the United Kingdom effective in 2013.
In November 2003, the Massachusetts Supreme Judicial Court held that excluding same-sex couples from the benefits of civil marriage violated the state constitution, and in February 2004 that court further held that a "civil union" law would not be sufficient, and on May 17, 2004 Massachusetts became the first state in the United States where same-sex marriage per se is legal.
In July 2006, opposite-sex definitions of marriage were upheld by the highest courts of both New York and Washington; likewise in Maryland in 2007.
In October 2006, the New Jersey Supreme Court held that same-sex couples were entitled to the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The Legislature complied with that decision by enacting a civil union act in December 2006.
In May 2008, California became the second state to legalize same-sex marriage when the California Supreme Court held that laws restricting marriage to opposite-sex couples were unconstitutional. Connecticut followed suit in October 2008. In California, the Supreme Court decision was overturned by voter initiative in the November 2008 election, but that initiative was held unconstitutional by the U.S. Court of Appeals for the Ninth Circuit in February 2012.
In 2009, same-sex marriage was legalized in Iowa by decision of its Supreme Court, in Vermont, New Hampshire, and the District of Columbia by legislation, and in Connecticut by both. New York's Marriage Equality Act was enacted in June 2011. The states of Maryland and Washington legalized same-sex marriage by statute in 2012; Delaware, Hawaii, Illinois, Minnesota, and Rhode Island did likewise in 2013.
In June 2013, the Supreme Court of the United States invalidated the federal Defense of Marriage Act as an unconstitutional infringement on personal liberty. Later that year, allowance of same-sex marriage was required by state court decision in New Jersey and by federal district court decision in Utah (but the Utah decision was stayed pending appeal in January 2014).
The journal articles included in this bibliography are from 1997 through 2013. Arrangement is alphabetic, by author's last name, except that symposium issues are listed by symposium title only, without listing the individual articles. Articles by student authors are excluded. Books and articles about particular jurisdictions are listed under those jurisdictions rather than in the general books and articles sections. The arrangement of entries under each jurisdiction is chronological, with undated items given first alphabetically. Federal court cases are listed under the states in which they arose--except for cases concerning the federal Defense of Marriage Act.
Federal Court Decisions
Books and Articles