Same sex marriage (SSM) in Wyoming

Marriage statutes.
Recognition of SSMs solemnized in other states.

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Marriage statutes in Wyoming:

Marriage legislation in Wyoming specifies that only marriages between one man and one woman are recognized in the state. Statute 20-1-101 states:

"Marriage is a civil contract between a male and a female person to which the consent of the parties capable of contracting is essential." ₁

Loving, committed same-sex couples in Wyoming are recognized only as roommates; any children that they have together are considered illegitimate. The parents and their children lack the hundreds of protections, rights and privileges that are automatically granted to opposite-sex married couples. Because of the federal DOMA law, they are also denied over 1,100 federal benefits and rights.

The Wyoming marriage law may be on shaky ground. The state constitution contains passages that call for equal treatment of all citizens of Wyoming. It does not contain any sections allowing homosexuals and bisexuals to be declared second-class citizens:

	Sec. 2: "In their inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal."
	Sec. 3: "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."
	Sec. 34: "All laws of a general nature shall have a uniform operation." 2

Concerning Section 2: A major part of most people's "pursuit of happiness" is founded on marriage, the protections that it brings, and, optionally, the raising of children to form a family. Yet for a gay or lesbian, the only suitable marriage partner is a member of the same sex. Marriage is currently denied them. Marriage is also denied those bisexuals who develop a loving committed relationship with a member of the same sex.

Concerning Section 3: If "Jane" and "John" are allowed to marry, but "Jane" and "Mary" are not, the the latter couple is being discriminated against on the basis of their sex. Yet the constitution requires that "... the laws of this state affecting the political rights and privileges of its citizens shall be without distinction of ... sex ..."

Concerning Section 34: Presumably marriage laws are considered of a general nature since they apply to most adults, at least at some time during their lives. Yet the state does not treat all couples equally. It allows opposite-sex couples to marry but denies marriage to same-sex couples.

If a constitutional challenge were made to the Wyoming marriage law, a court might possibly declare the marriage law unconstitutional because it violates up to three sections of the constitution.

The only way to prevent the possibility of marriage becoming available to all loving, committed couples in the state would be to amend the constitution to specifically prohibit same-sex marriage (SSM). Such amendments have been passed in other states. They typically take one of two forms:

1. A straightforward requirement that only marriages between one man and one woman will be recognized in the state.
    
2. A stealth amendment that is promoted as simply banning same-sex marriage. However, its actual intent would be to also prohibit any legislation that gives any form of recognition, benefits, or rights to both same-sex couples, and unmarried opposite-sex couples.

The amendment proposed for Wyoming in 2009 appears to have been of the second form.

Although an amendment to the constitution is often promoted as permanently prohibiting same-sex marriage, it may only become a temporary provision. Public opinion polls show a gradual increase in support for, and a gradual decrease in opposition to, same-sex civil unions and SSM. If these trends continue, a second amendment that would permit SSM could be ratified perhaps decades in the future and thus repeal the currently proposed amendment. In 2011, a number of national public opinion polls showed that most American adults were in favor of allowing same-sex couples to marry. The margin of approval has been increasing by about 2 percentage points per year.

Recognition of same-sex marriages solemnized elsewhere:

Article IV, Section 1 of the United States Constitution is frequently called the "full faith and credit clause." It requires that states respect "public acts, records, and judicial rulings" of other states. For example, they are required to recognize each other's vehicle licenses and extradition orders. Whether this clause applies to marriage law has not yet been tested in the courts. However, on 2007-AUG-03, the Tenth Circuit Court of Appeals ruled that:

"Oklahoma's adoption amendment is unconstitutional in its refusal to recognize final adoption orders of other states that permit adoption by same-sex couples." ₃

There is every likelihood that at least one same-sex couple in Wyoming will visit the District of Columbia or one of the nine states (as of 2013-FEB) in which same-sex marriage is available, be married there, return to Wyoming, and ask the state to recognize their out-of-state marriage. Alternately, a same-sex married couple residing in one of those 10 jurisdictions could move to Wyoming and make the same demand. The state would undoubtedly refuse the request(s) and a lawsuit would almost certainly follow.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. "Title 20, Chapter 1, Article 1" Wyoming Statutes at: http://legisweb.state.wy.us/

2. "Constitution of the State of Wyoming," at: http://www.harbornet.com/

3. "U.S. Court of Appeals, Tenth Circuit, # 06-623," at: http://www.ca10.uscourts.gov/

Copyright © 2009 to 2013 by Ontario Consultants on Religious Tolerance
Original posting: 2009-FEB-10
Latest update: 2013-FEB-07
Author: B.A. Robinson

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