The history of queer marriage rights

In the years immediately after Stonewall, the gay-liberation movement was deeply ambivalent about marriage. Many activists, particularly on the left, saw marriage as a bourgeois property institution that had oppressed women for centuries and would now oppress queer people too. The first legal challenges — Baker v. Nelson in Minnesota in 1970, Jones v. Hallahan in Kentucky in 1973 — were filed by individual couples without movement backing and lost decisively. The Minnesota Supreme Court dismissed Baker in a single paragraph, and the U.S. Supreme Court declined to hear the appeal for want of a substantial federal question. Marriage was not the movement's priority. The priority was decriminalization, anti-discrimination, and survival.

The AIDS epidemic, from 1981 onward, made the absence of legal recognition catastrophic. Hospital visitation was refused. Surviving partners were excluded from funerals. Apartments held in one partner's name were lost when the other died. Children were separated from the non-biological parent who had raised them. The cruelties were unrelenting, and they radicalized a generation of gay men who had not previously thought of marriage as their issue. By the late 1980s, the movement had reassessed. Marriage was not only a political symbol; it was a bundle of more than a thousand legal protections that queer couples needed and could not otherwise obtain.

Denmark's Registered Partnership Act of 1989 was the first national law in the world to recognize same-sex partnerships with most of the legal effects of marriage. The Danish model — which Norway, Sweden, Iceland, and the Netherlands then adopted — fell short of marriage on certain points, including adoption and church recognition. But it established that legal recognition was politically possible and survivable. The Nordic experience refuted predictions that recognition would cause social collapse, marriage rates to fall, or family structures to deteriorate. None of those things happened. Marriage rates in Scandinavia continued their pre-existing trends, family life carried on, and the surveys showed steadily rising public acceptance.

In 1993, the Hawaii Supreme Court ruled in Baehr v. Lewin that the state's refusal to license same-sex marriages might violate the state constitution's equal-protection clause. The decision did not yet establish marriage rights, but it created the first credible possibility in the United States and triggered a national backlash. Congress passed the Defense of Marriage Act in 1996, signed by President Clinton, defining marriage federally as between one man and one woman and allowing states to refuse recognition of same-sex marriages performed elsewhere. Thirty states passed their own DOMAs over the following decade. The Hawaii case was eventually mooted by a state constitutional amendment. The setback was severe, but the issue was now in play.

In 1999, the Vermont Supreme Court ruled in Baker v. Vermont that the state had to provide same-sex couples with the legal benefits of marriage, leading to the creation of civil unions. In 2003, the Massachusetts Supreme Judicial Court went further in Goodridge v. Department of Public Health and ruled that same-sex couples must be allowed to marry. Massachusetts became the first U.S. jurisdiction to issue same-sex marriage licenses in 2004. The state-by-state campaign that followed — Connecticut, Iowa, Vermont by legislation, New Hampshire, New York, Maine, Washington, Maryland — built a critical mass of recognition states, accompanied by careful public-opinion work and legal preparation for a federal case.

While the U.S. was litigating state by state, the Netherlands passed full marriage equality in April 2001. Belgium followed in 2003. Spain in 2005. Canada in 2005. South Africa in 2006. Norway in 2009. Sweden in 2009. Each new country lowered the cost of advocacy in others. By the time the Obergefell case reached the U.S. Supreme Court in 2015, the international landscape had shifted decisively. The "untested experiment" framing that opponents had used in the 1990s no longer worked. The experiment had been running for fifteen years across multiple wealthy democracies, and the predicted catastrophes had not materialized.

The U.S. federal resolution came in two cases. In 2013, U.S. v. Windsor struck down DOMA's federal definition of marriage, holding that the federal government had to recognize same-sex marriages performed by states. In 2015, Obergefell v. Hodges held 5-4 that the right to marry is a fundamental right guaranteed by the Fourteenth Amendment, and that states must license and recognize same-sex marriages. Justice Kennedy wrote both majority opinions, building on a doctrinal foundation that included Lawrence v. Texas (2003) decriminalizing same-sex intimacy. The legal architecture was complete. Whether it remains complete is now an open question following the personnel shifts on the Court since 2018.

Taiwan became the first Asian jurisdiction to recognize same-sex marriage in May 2019, following a 2017 ruling by its Constitutional Court. The campaign was driven by a coalition of LGBTQ groups, allied legislators, and a relatively open civil society. The success in Taiwan demonstrated that marriage equality is not a culturally Western phenomenon, despite frequent claims to the contrary by its opponents in other Asian states. Thailand followed with civil-union legislation, and pressure has continued in Japan, South Korea, and elsewhere, though without further full-marriage recognition in East Asia as of the mid-2020s.

Argentina recognized same-sex marriage by legislation in 2010, the first Latin American country to do so. Uruguay, Brazil, Colombia, Mexico (state by state, then federally), Ecuador, Costa Rica, Chile, and Cuba followed across the 2010s and early 2020s. The pattern in Latin America has been heavily judicial — constitutional courts reading their charters' equal-protection or human-dignity provisions to require marriage equality — and the Inter-American Court of Human Rights' 2018 advisory opinion accelerated the trend across the region. Catholic Latin America has been substantially more accepting of marriage equality than many observers in the 1990s would have predicted.

Sub-Saharan Africa has been the major exception to the global trajectory. South Africa is the only African country with full marriage equality, established by the Civil Union Act of 2006 following the Constitutional Court's decision in Fourie. Across the rest of the continent, more than thirty countries criminalize same-sex acts, and several — Uganda, Ghana, Nigeria, Kenya — have intensified criminal penalties in the past decade. The colonial origins of these sodomy laws, mostly inherited from British codes, are well documented but have not slowed the political project of presenting them as authentic African values. Activism continues, often at significant personal cost to those involved.

A persistent strand of queer theory and activism has criticized the marriage-equality campaign for assimilationism — for accepting the conjugal household as the privileged form of intimate life and merely seeking inclusion within it rather than challenging the institution itself. Michael Warner, Lisa Duggan, and others have argued that marriage equality consolidated a "homonormative" politics that abandoned more radical aims around sexual freedom, family diversity, and the redistribution of social goods away from marriage and toward universal entitlements. The critique has force, particularly regarding the political opportunity cost. It also coexists with the lived material gains that marriage recognition produced.

When queer couples entered marriage, the institution itself shifted. Gender roles within marriage became more visibly negotiable, since same-sex couples could not default to "the husband does X and the wife does Y." Parenting arrangements, financial divisions, and household labor all came under explicit discussion rather than implicit assumption, and some of that explicit-discussion habit has spread to heterosexual marriage as well. Coontz and others have documented how marriage in the early twenty-first century is more egalitarian, more conditional, and more chosen than at any previous point in its history. Queer entry into the institution was one of several forces driving this transformation, alongside no-fault divorce, women's economic autonomy, and the long retreat of religious authority.

Legal recognition of same-sex marriage is not secure even where it exists. The U.S. Supreme Court that decided Obergefell no longer exists in the same form, and Justice Thomas's 2022 concurrence in Dobbs explicitly invited reconsideration of Obergefell along with Lawrence and Griswold. The Respect for Marriage Act of 2022 provides some federal statutory protection if Obergefell were overturned but does not require all states to license same-sex marriages. Hungary, Russia, and other illiberal democracies have moved in the opposite direction, banning recognition or even discussion of same-sex partnership. Italy and Greece have moved partially toward recognition without full marriage. The story is not over. The first law's slow widening of recognized unity continues to be contested, and the contest is not symmetric across the world. The Manual records this so that the gains, where they exist, are not mistaken for permanent and the losses, where they continue, are not mistaken for absence of effort.

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