Date: Wed, 05 Nov 1997 13:34:22 -1000 From: lambda@aloha.net (Martin Rice) Subject: SA 274: POTENTIAL STATUS OF SSM IN THE U.S. Aloha awakea kakou. A research project follows to identify those states that could, in theory, support successfully the initiation of a same-gender marriage court case based on their constitutional law and the individual state's degree of protection afforded to a suspect class. It should be noted that this list is in no means complete or comprehensive of all of the factors and statutes that could come into play, but merely presents a guideline along the "Hawai`i-approach," i.e., denial of marriage licenses to same-gender couples is tantamount to gender discrimination, could be initiated. But, this approach is by no means the only approach, as witnessed by the current New York and Vermont cases. The current Alaska case could be similar to Hawai`i's, however, I'm not familiar with those dynamics either. Also, if anyone has any additions, corrections, etc., please contact me directly so that they may be added and rebroadcast for everyone's edification (lambda@aloha.net). I would also like to express my MAHALOS to Bob Summersgill, in New Mexico, whose spontaneous volunteerism and enthusiasm regarding this project is greatly appreciated. I would also like to express gratitude to Richard Harold, Bill Lorentz, Frank Kameny, Bill Kelly, Alan Easton and Peter Cannon for their contributions too. A hui hou, Martin I. Same-Gender Marriage court cases currently initiated or pending: ALASKA--http://www.gov.state.ak/ltgov/akdon/art01.html ARTICLE 1, SECTION 3. CIVIL RIGHTS. No person is to be denied the enjoyment of any civil or political right because of race, color, creed, sex, or national origin. The legislature shall implement this section. HAWAI`I--http://www.state.hi.us/lrb/con/conart1.html ARTICLE I, SECTION 4. No person shall be deprived of life, liberty, or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of his civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry. NEW YORK--gopher://lbdc.senate.state.ny.us:70/11/.const/ ARTICLE I, SECTION 11. No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state. VERMONT--http://www.leg.state.vt.us/statutes/const/const.htm II. Potential states that could support a SSM lawsuit (i.e. states that constitutionally and explicity ban discrimination based on "sex"): COLORADO--http://www.ppld.org/costatutes/streldoc/coc0029.html ARTICLE II, SECTION 29. Equality of the sexes. Equality of rights under the law shall not be denied or abridged by the state of Colorado or any of its political subdivisions on account of sex. Adopted November 7, 1972 -- Effective upon proclamation by the Governor, January 11, 1973. (See Laws 1972, p. 647.) ARTICLE II, SECTION 30, PARAGRAPH b. No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation. [Martin Rice's note: Repealed by the U.S. Supreme Court in Evans v. Romer. "No state can make a class of its citizens strangers to it laws."] CONNECTICUT--http://www.ctstate.edu/state/historical/ct-const.html ARTICLE XXI. Article fifth of the amendments to the constitution is amended to read as follows: No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability. Adopted November 28, 1984. ILLINOIS--http://www.state.il.us/gov/bio/const1.htm ARTICLE I, SECTION 18. No discrimination on the basis of sex. The equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts. LOUISIANA--http://www.senate.state.la.us/sen/senate.htm ARTICLE I, SECTION 3. Declaration of Rights. No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime. [Special Mahalo to Bob Summersgill of New Mexico] MARYLAND--http://www.state.md.us/md/docs/mdright.html ARTICLE XLVI. Equality of rights under the law shall not be abridged or denied because of sex. MASSACHUSETTS--http://www.state.ma.us/legis/const.htm ARTICLE XVI. Article I of Part the First of the Constitution is hereby annulled and the following is adopted: All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin. MONTANA--http://161.7.121.6/const.htm ARTICLE II, SECTION 4. Individual dignity. The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas. NEW HAMPSHIRE--http://www.state.nh.us/constitution/billofrights.html ARTILCE 1, SECTION 2. [Natural Rights.] All men have certain natural, essential, and inherent rights - among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting, property; and, in a word, of seeking and obtaining happiness. Equality of rights under the law shall not be denied or abridged by this state on account of race, creed, color, sex or national origin. June 2, l784, Amended l974, adding sentence to prohibit discrimination. NEW MEXICO--http://www.governor.state.nm.us/pubaccess/const/con_II.htm ARTICLE II, SECTION 18. [Due process; equal protection; sex discrimination.] No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied equal protection of the laws. Equality of rights under law shall not be denied on account of the sex of any person. The effective date of this amendment shall be July 1, 1973. (Adopted by the people November 7, 1972.) [Special Mahalo to Bob Summersgill of New Mexico] PENNSYLVANIA--http://www.state.pa.us/PA_Constitution.html ARTICLE I, SECTION 26. No Discrimination by Commonwealth and Its Political Subdivisions. Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right. ARTICLE I, SECTION 28. Prohibition Against Denial or Abridgment of Equality of Rights Because of Sex. Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual. TEXAS--http://www.capitol.state.tx.us/txconst/toc.htm ARTICLE 1, SECTION 3a - Equality Under the Law. Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self- operative. (Added Nov. 7, 1972.) VIRGINIA--http://hod.state.va.us/ctoc.htm ARTICLE I, SECTION 11. Due process of law; obligation of contracts; taking of private property; prohibited discrimination; jury trial in civil cases. That no person shall be deprived of his life, liberty, or property without due process of law; that the General Assembly shall not pass any law impairing the obligation of contracts, nor any law whereby private property shall be taken or damaged for public uses, without just compensation, the term "public uses" to be defined by the General Assembly; and that the right to be free from any governmental discrimination upon the basis of religious conviction, race, color, sex, or national origin shall not be abridged, except that the mere separation of the sexes shall not be considered discrimination. WASHINGTON--http://www.leg.wa.gov/pub/other/washington_constitution ARTICLE I, SECTION 12. Special Privileges and Immunities Prohibited. No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations. ARTICLE XXXI, SECTION 1 Equality not denied because of sex. Equality of rights and responsibility under the law shall not be denied or abridged on account of sex. WYOMING--http://www.state.wy.us/state/government/constitution/ text_constitution.html SECTION 97-1-003. Equal political rights. Since equality in the enjoyment of natural and civil rights is only made sure through political equality, the laws of this state affecting the political rights and privileges of its citizens shall be without distinction of race, color, sex, or any circumstance or condition whatsoever other than individual incompetency, or unworthiness duly ascertained by a court of competent jurisdiction. SECTION 97-6-001. Male and female citizens to enjoy equal rights. The rights of citizens of the State of Wyoming to vote and hold office shall not be denied or abridged on account of sex. Both male and female citizens of this state shall equally enjoy all civil, political and religious rights and privileges. III. States that could support a SSM lawsuit (i.e. states that implicity ban discrimination based on "sex" as a part of a broader range of inclusiveness): CALIFORNIA--http://www.leginfo.ca.gov/const-toc.html ARTICLE I, SECTION 8, PARAGRAPH b. A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked. INDIANA--http://www.law.indiana.edu/uslawdocs/inconst/art-1.html#sec-1 ARTICLE I, SECTION 23. Equal privileges. The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens. IOWA--http://www.sos.state.ia.us/register/r7/r7iacons.htm ARTICLE I, SECTION 6. Laws uniform. All laws of a general nature shall have a uniform operation; the General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens. MAINE--http://www.state.me.us/sos/arc/general/constit/conscont.htm ARTICLE I, SECTION 6-A. Discrimination against persons prohibited. No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of that person's civil rights or be discriminated against in the exercise thereof. [Special Mahalo to Bob Summersgill of New Mexico] MINNESOTA--http://www.house.leg.state.mn.us/cco/rules/mncon/mncon.htm ARTICLE 1, SECTION 2. Rights and privileges. No member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers. There shall be neither slavery nor involuntary servitude in the state otherwise than as punishment for a crime of which the party has been convicted. NORTH DAKOTA--http://www.harbornet.com/rights/nodakota.txt ARTICLE I, SECTION 20. No special privileges or immunities shall ever be granted which may not be altered, revoked or repealed by the legislative assembly; nor shall any citizen or class of citizens be granted privileges or immunities which upon the same terms shall not be granted to all citizens. OREGON--http://www.sos.state.or.us/BlueBook/1997_98/constitution/ constitution.htm ARTICLE I, SECTION 20. Equality of privileges and immunities of citizens. No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizen WISCONSIN--http://folio.legis.state.wi.us ARTICLE I, SECTION 1. Equality; inherent rights. [As amended Nov. 1982 and April 1986] All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed. [1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982; 1983 J.R. 40, 1985 J.R. 21, vote April 1986] [Note from Bob Summersgill: I found this to be very funny, and illistrative that the above language is meant to prohibit discrimination on the basis of sex: ARTICLE I, SECTION 1 - ANNOT. Prostitution raid focusing only on female participants amounts to selective prosecution in violation of equal protection; in depth discussion of constitutional analysis. State v. McCollum, 159 W (2d) 184, 464 NW (2d) 44 (Ct. App. 1990).] [Note from Peter Cannon, Senior Research Analyst, Wisconsin Legislative Reference Bureau: I know of no language in our constitution related to gender discrimination. There is language at 111.36, Wisconsin Statutes, prohibiting employment discrimination because of sex.] IV. States that do not include equal protection hased on "sex," but have anti-discrimination clauses or amendments based on other criteria (race, religion, etc.) embedded in their state constitution: FLORIDA--http://www.leg.state.fl.us/statutes/flconst.txt ARTICLE I, SECTION 2. Basic rights.--All natural persons are equaL before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race, religion or physical handicap. History.--Am. S.J.R. 917, 1974; adopted 1974. MICHIGAN--http://www.migov:state.mi.us/constitution/i.html ARTICLE I, SECTION 2. Sec. 2. No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation. [Note from Richard Harold of Michigan: ". . . discrimination based upon the sex of the individual is illegal in Michigan via statute, known as the Elliott-Larsen Civil Rights Act. We may not have it in our constitution, but we have it on the books.] NEW JERSEY--http://www.njleg.state.nj.us/folio.pgi/njconst.nfo ARTICLE I, SECTION 5. No person shall be denied the enjoyment of any civil or military right, nor be discriminated against in the exercise of any civil or military right, nor be segregated in the militia or in the public schools, because of religious principles, race, color, ancestry or national origin. ARTICLE X, SECTION 4. Wherever in this Constitution the term "person", "persons", "people" or any personal pronoun is used, the same shall be taken to include both sexes. [Bill Lorentz's note: See: N.J.S.A. 10:5-1 et seq.] RHODE ISLAND--http://www.state.ri.us/rihis/riconst.htm ARTICLE I, SECTION 2. Laws for good of whole, Burdens to be equally distributed, Due process, Equal protection, Discrimination, No right to abortion granted. All free governments are instituted for the protection, safety, and happiness of the people. All laws, therefore, should be made for the good of the whole; and the burdens of the state ought to be fairly distributed among its citizens. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied equal protection of the laws. No otherwise qualified person shall, solely by reason of race, gender or handicap be subject to discrimination by the state, its agents or any person or entity doing business with the state. Nothing in this section shall be construed to grant or secure any right relating to abortion or the funding thereof. V. Anti-discrimination laws of a non-constitutional nature: DISTRICT OF COLUMBIA [Note from Frank Kameny: The D. C. Human Rights Law or Act is found at Sections 1-2501 through 1-2557 of the D.C. Code.] [Note from Bill Kelly: I am fairly conversant with online legal research and can find no online source for D.C. ordinances, except a very few not relevant here.] IDAHO--http://www.idwr.state.id.us/idstat/const/constTOC.html TITLE 18, CHAPTER 73, PARAGRAPH 1. Freedom from discrimination constitutes a civil right. The right to be free from discrimination because of race, creed, color, sex, or national origin is recognized as and declared to be a civil right. This right shall include, but not be limited to: (1) The right to obtain and hold employment without discrimination. (2) The right to the full enjoyment of any of the accommodations, facilities or privileges of any place of public resort, accommodation, assemblage or amusement. VI. Anti-discrimination clauses not found: ARIZONA--http://www.azleg.state.az.us/ars/const/const.htm DELAWARE--http://www.state.de.us/facts/constit/welcome.htm GEORGIA--http://www.law.emory.edu/GEORGIA/gaconst.htm BUT: ARTICLE 1, PARAGRAPH 25. Status of the citizen. The social status of a citizen shall never be the subject of legislation. KANSAS--http://skyways.lib.ks.us/kansas/KSL/Ref/GovDocs/ Kan/State_Const/ks_const.html KENTUCKY--http://www.lrc.state.ky.us/const/000.htm BUT: ARTICLE I, SECTION 2. Absolute and arbitrary power denied. Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority. Text as Ratified on:  August 3, 1891, and revised September 28, 1891. History: Not yet amended. MISSISSIPPI--http://www.mscode.com/msconst/index.htm MISSOURI--http://www.moga.state.mo.us/const/moconstn.htm [Mahalo to Alan Easton of Missouri] NEBRASKA--http://unicam1.lcs.state.ne.us/legdocs/consti~1.htm NORTH CAROLINA--http://hal.dcr.state.nc.us/NC/STGOVT/PRECONST.HTM OHIO--http://members.aol.com/OhioAtty/Const.html or http://www.conwaygreene.com/oconst.htm OKLAHOMA--http://www.onenet/oklegal/okcon/index.html SOUTH CAROLINA--http://www.lpitr.state.sc.us/reports/sccnst00.htm SOUTH DAKOTA--http://www.state.sd.us/state/pride/con-index.htm TENNESSEE--http://www.state.tn.us/sos/tnconst.htm UTAH--access at http://www.scvol.com/states/utah.htm WEST VIRGINIA--http://www.state.wv.us/const/default.htm VII. Sex anti-discrimination clause not determined for the following state constitutions because: ALABAMA--on-line version not found ARKANSAS--under reconstruction, will be posted in the future NEVADA--incomplete at http://www.harbornet.com/rights/nevada.txt and, hard to read at http://www.scs.unr.edu/bgic/nev_cons.html ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ "Verbosity leads to unclear, inarticulate things." --former-Vice President Dan Quayle ~~~~~~ Fred and Martin, strangers before all but 16.7% of the law. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~