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Same-Sex Marriage: Global Comparisons

Author: CFR.org Staff
July 31, 2013

Introduction

Lesbian, gay, bisexual, and transgender rights worldwide have made significant gains in recent decades, although acceptance of non-heterosexual orientations remains uneven across and within countries. Same-sex marriage is currently legal in sixteen countries, the bulk of which are in Europe and South America.

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Same-sex marriage has emerged as a prominent issue in the United States in recent years, with proponents undergoing lengthy court battles to achieve legal recognition and full marriage rights.In the United States, the issue is left largely in the hands of the states, though the Supreme Court in 2013 notably struck down a federal barrier to marriage benefits for same-sex couples. Meanwhile, other democracies provide varying degrees of legal rights to same-sex couples, including full marriage rights, limited civil union status, and no legal recognition at all.

United States

Same-sex marriage has been under a national spotlight in the United States since the early 1990s. For the most part, the federal government has deferred the issue to the states, but in 1996, Congress passed the Defense of Marriage Act (DOMA), signed by President Bill Clinton. DOMA defined marriage solely as a union between a man and a woman, thereby denying same-sex couples federal marriage benefits, including access to healthcare, retirement, and tax benefits for spouses of veterans and federal employees, and green card approvals for immigrant spouses of U.S. citizens. However, in June 2013, the Supreme Court struck down critical parts of DOMA that restricted the definition of marriage to opposite-sex couples, thereby extending federal benefits to same-sex married couples. But at the same time, the high court upheld DOMA's stipulation that states are not required to recognize same-sex unions performed in other jurisdictions.

Same-sex marriage was not legal anywhere in the United States when DOMA was initially signed, but beginning with Vermont in 2000, states began passing their own laws to recognize these unions. Presently, thirteen states and the District of Columbia have granted same-sex couples the right to marry. Thirty-five restrict marriage to one man and one woman. Some states that do not explicitly allow same-sex marriages have alternative systems that provide a recognized legal status in civil unions and domestic partnerships, although these do not fully provide the same legal rights as marriage, such as spousal tax, health, retirement, and death benefits from federal and state governments, as well as divorce rights.

Limitations on same-sex marriage also carry implications for family and adoptive rights in the United States. As of 2013, nineteen states have laws that give legal ties for children (PDF) born to or adopted by same-sex couples in legally recognized relationships (three states and Washington, DC have laws that create these ties regardless of the parents' marital status). An estimated two million children are being raised by LGBT parents in the United States.

According to the 2010 U.S. Census, there are about 131,000 same-sex married households in the United States, though other sources have lower estimates. Meanwhile, polls show that public opinion has increasingly favored recognizing same-sex marriage, with more than 50 percent (PDF) of Americans supporting it as of 2013.

same sex marriage
France

France saw heated protests on the issue of same-sex marriage before becoming the fourteenth country to legalize it in May 2013. The country had previously established an alternative legal contract in 1999 for couples regardless of gender--the Pacte civile de solidarité (civil solidarity pact), or PACS, the equivalent of civil unions. However, PACS did not confer the same rights as marriage, namely in regard to parenting rights and inheritance.

The 2013 "Marriage for All" law gives same-sex couples the right to marry and to adopt children. However, the law does not address several aspects of family rights relating to same-sex couples, such as medically assisted procreation or coparenting rights for same-sex partners in civil unions.

Public opinion polls show that more than 60 percent of people in France support the legal recognition of same-sex marriage. However, the issue provoked fierce opposition--primarily from religious and conservative groups--when the legalization bill, endorsed by President Francois Hollande, was first proposed in 2012. Major protests against same-sex marriage labeled as "Manif pour tous" (Protest for all) drew hundreds of thousands of participants nationwide, including members of the center-right Union for a Popular Movement party. Spring 2013 throughout France was troubled with escalating violence at protests, increasing arrests by police, and a rising number of attacks on gay bars. The issue also revealed sharp divisions between urban and rural communities and within political parties, and served as a rallying point for mainstream conservatives and the far right.

Netherlands

Denmark and its Scandanavian neighbors were the first countries to provide civil unions and register partnerships of same-sex couples in the late 1980s, but it was the Netherlands that first passed landmark legislation granting same-sex couples the explicit right to marry in 2001. In doing so, the Netherlands sparked a widespread movement that continues to garner strength.

However, certain aspects of same-sex marriage in the Netherlands differ from that of opposite-sex marriage, particularly relating to the birth of children. In same-sex couples, the biological parent of a child is automatically recognized as the lawful parent, but the legal partner must seek adoption in order to be a legal coparent. Additionally, some cities do not prohibit administrators from refusing to marry same-sex couples, and homophobia persists in society. As of December 2012, nearly 16,000 same-sex couples were married.

Brazil

Brazil is one of five Latin American countries that recognizes same-sex unions, and one of three--along with Argentina and Uruguay--that has legalized same-sex marriage. Same-sex marriage in Brazil was only legal in some states until May 2013, when the National Council of Justice (CNJ), a panel that oversees the country's legal system, handed down a ruling that effectively allowed marriage between people of the same sex. In a resolution (PDF), the council prohibited government officials from refusing to authorize or execute civil marriages based on sex, and mandated the recognition of same-sex marriages performed outside Brazil. Although religious wedding ceremonies are performed in Brazil, only civil ceremonies performed at Civil Registry Offices are recognized as legally binding.

Marriage_BrazilA newly married same-sex couple after their wedding ceremony in Campinas, Brazil. (Photo: Nacho Doce/Courtesy Reuters)

Some groups, including a strong religious coalition in congress, have called the council's decision an abuse of power and questioned its legitimacy. In response, Joaquim Barbosa, chief justice of the Supreme Federal Tribunal--Brazil's highest court--and head of the CNJ, said federal legislation was unnecessary because Brazil's constitution guarantees same-sex couples the same rights as their opposite-sex counterparts. The resolution effectively legalized gay marriage throughout Brazil.

Prior to the 2013 resolution, Brazil's federal government mandated the right to "stable unions," in which couples of any gender were guaranteed many of the same rights as married couples, but retained their "single" status. Some of the rights provided included the right to joint declaration of income tax, pension, inheritance, and property sharing. People in unions were also allowed to extend health benefits to their partners, following the same rules applied to opposite-sex couples. A 2010 Supreme Federal Tribunal ruling also allowed same-sex couples that were married or in stable unions to adopt children. Since the CNJ's resolution,, same-sex married couples have enjoyed all the same rights as opposite-sex married couples.

South Africa

South Africa is the only country on the continent to permit same-sex marriage, a stark contrast to most of its neighbors that criminalize homosexuality. Thirty-eight of fifty-four African nations ban homosexuality. Under the leadership of former president Nelson Mandela, South Africa passed a new constitution in 1997 that was the first in the world to protect sexual orientation as a human right. Specifically, the charter guarantees equal protection before the law to all citizens regardless of sexual orientation. This clause ultimately led the Constitutional Court to extend the definition of marriage to include same-sex spouses in a 2005 court decision, which was reaffirmed by the legislature in 2006 with the Civil Union Act.

Since the Civil Union Act, South African couples, regardless of sex, have had equal access to civil partnerships and marriages, both of which enjoy the same rights, responsibilities, and legal consequences; joint adoption by same-sex couples was also allowed after a 2002 Constitutional Court ruling Although South African law recognizes foreign marriages, the status of civil unions and domestic partnerships has been decided on a case-by-case basis.

As of 2012, more than three thousand same-sex marriages have been performed in South Africa, but analysts say that considerable homophobia persists despite the country's progressive laws.

Japan

Although same-sex marriage ceremonies are allowed in Japan, the government does not legally recognize marriages between people of the same sex. The Japanese constitution states, "Marriage shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis." The gender-specific language ultimately led to the restriction of same-sex unions by the Japanese Civil Code, which prevents same-sex couples from enjoying full marriage rights.

As of 2010, Japan has allowed its citizens to marry same-sex partners in countries where same-sex marriage is legal, granting them the certificates necessary to enter into marriage in those countries. However, as is currently the case in the rest of Asia, Japan neither legally recognizes same-sex marriages performed abroad, nor provides visas to foreign partners in same-sex relationships. Though the country has cosponsored programs at the United Nations that prevent discrimination against LGBT communities, same-sex marriage has not yet reached a prominent position in the national debate. According to a June 2013 poll, 24 percent of people in Japan favored same-sex marriage, while 27 percent opposed.

Eleanor Albert, Noah Morgenstein, and Brianna Lee contributed to this report.

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