Same-Sex Marriage: Developments in the Law
by Attorney Emily Doskow

The latest news on same-sex marriage, domestic partnerships, and civil unions.

A common dictionary definition of family is "the basic unit in society having two or more adults living together and cooperating in the care and rearing of children." How do same-sex couples fit into this definition? Despite the all-inclusive description, lesbians and gay men have long been excluded from the legal definitions of family. But things are changing, and same-sex couples have made strides toward equal recognition of their families.

Same-Sex Marriage in Massachusetts and Connecticut

In 2003, the Massachusetts Supreme Court held that the state law barring same-sex marriage was unconstitutional under the Massachusetts constitution and ordered the legislature to remedy the discrimination within six months (Goodridge v. Department of Public Health). In February 2004, the court ruled that offering civil unions instead of civil marriage would not meet the requirements set forth in Goodridge. As a result, same-sex couples in Massachusetts can enter into civil marriages.

And in October 2008, the Connecticut Supreme Court likewise ruled that the state's civil union law discriminates on the basis of sexual orientation and is unconstitutional, and that "the segregation of heterosexual and homosexual couples into separate institutions constitutes a [constitutionally] cognizable harm." The court held that same-sex couples must be allowed to marry and the state started issuing marriage licenses in November 2008.

In California, same-sex marriage was legal for five and a half months, and now is in legal limbo. On May 15, 2008, the California Supreme Court ruled that limiting marriage to persons of the opposite sex violates the California Constitution, and ordered the language stricken from the statute. From June until November of 2008, approximately 18,000 same-sex couples wed in California. But the passage of Proposition 8 in November once again limited marriage in California to opposite-sex couples. Lesbian/gay/bisexual/transgender (LGBT) legal groups have challenged the validity of Prop. 8, and the California Supreme Court has agreed to take up the case. If the court holds that Prop. 8 is invalid, same-sex couples will once again be able to marry; if not, couples will be able to register as domestic partners, but not to marry. The Supreme Court also intends to clarify the status of the existing marriages. For more information, see I Said "I Do" With My Same-Sex Partner--But Am I Married?

Marriage-Like Relationships in Other States

Civil Unions in Vermont, Connecticut, New Hampshire, and New Jersey

Four states now offer relationship recognition in the form of civil unions -- the legal equivalent of marriage in those states. In Vermont, Connecticut, New Hampshire, and New Jersey, same-sex couples can enter into civil unions that provide the same rights and responsibilities as marriage, including:

• rights under family laws, such as annulment, divorce, child custody, child support, alimony, domestic violence, adoption, and property division
• rights to sue for wrongful death, loss of consortium, and under any other tort or law concerning spousal relationships
• medical rights, such as hospital visitation, notification, and durable power of attorney
• family leave benefits
• joint state tax filing, and
• property inheritance when one partner dies without a will.

These rights apply only to couples living in those states who enter into a civil union. But the laws do not give same-sex couples any rights and benefits under federal law. Same-sex couples are not eligible for Social Security benefits, immigration privileges, or the marriage exemption to federal estate, transfer, or gift taxes.

Domestic Partnerships in California, the District of Columbia (D.C.), Maine, Oregon, and Washington

Domestic partnership is another form of relationship recognition for same-sex couples, but what it means differs from state to state. In Oregon and Washington, domestic partnership is the legal equivalent of marriage. Registered domestic partners in California also have the same rights and obligations as legally married spouses under state law, including community property rights and the right to receive support from one's partner after a separation. In Maine and D.C., the rights provided are more limited. In Maine, for example, most of the domestic partnership rules are related to disability and end-of-life issues. For example, partners take precedence over other family members to act as a guardian if one partner becomes disabled and have the right to inherit from one another without a will. But most other marital rights are not included.

Domestic Partnerships Still Exist in New Jersey

New Jersey passed a domestic partner law in January of 2004 that offered limited rights to registered domestic partners. New domestic partnership registrations ended in January of 2008, when New Jersey began to offer civil unions that provide the same rights and responsibilities as marriage. However, couples who registered as domestic partners before January 2008 maintain the same rights they had before.

Hawaii: Reciprocal Beneficiaries

Hawaii's reciprocal beneficiaries law provides some marriage-like benefits. Any two state residents can register as reciprocal beneficiaries, as long as they are over 18 and are not permitted to marry. Couples who sign up gain some of the rights and benefits granted by the state to married couples, including hospital visitation rights, the ability to sue for wrongful death, and property and inheritance rights.

Recognition of Same-Sex Relationships In Other States

A big question mark is whether same-sex relationships entered into in any of the states listed above (California, Connecticut, D.C., Hawaii, Massachusetts, New Hampshire, New Jersey, Oregon, Vermont, Washington) will be recognized in states that don't have similar laws. Although the U.S. Constitution requires each state to give “full faith and credit” to the laws of other states, the federal Defense of Marriage Act (DOMA), passed in 1996, expressly undercuts the full faith and credit requirement in the case of same-sex marriages. Many states have also passed DOMA laws, specifically barring same-sex marriages in that state. Any state with a DOMA law -- even those that provide some form of same-sex relationship recognition -- will not recognize a same-sex marriage from Connecticut or Massachusetts, and states with so-called Super-DOMA laws won't recognize a same-sex relationship of any kind.

Because of the apparent conflict between the federal DOMA and the U.S. Constitution, as well as all the other uncertainties in this area, equal rights advocates -- and their opponents -- are eager to have the U.S. Supreme Court decide the issue of same-sex marriage once and for all.

Chronological History of Same-Sex Marriage Attempts

Baker v. Nelson (Minnesota, 1971). A gay male couple argued that the absence of sex-specific language in the Minnesota statute was evidence of the legislature's intent to authorize same-sex marriages. The couple also claimed that prohibiting them from marrying was a denial of their due process and equal protection rights under the Constitution. The court stated that it could find no support for these arguments in any United States Supreme Court decision.

Jones v. Hallahan (Kentucky, 1973). A lesbian couple argued that denying them a marriage license deprived them of three basic constitutional rights -- the right to marry, the right to associate, and the right to freely exercise their religion. The court refused to address the constitutional issues, holding that "the relationship proposed does not authorize the issuance of a marriage license, because what they propose is not a marriage."

Singer v. Hara (Washington, 1974). A gay male couple argued that denying them the right to marry violated the state Equal Rights Amendment. The court disagreed, holding that the purpose of the statute was to overcome discriminatory legal treatment between men and women on account of sex.

Adams v. Howerton (Colorado, 1975). The couple, a male American citizen and a male Australian citizen, challenged the Board of Immigration Appeals refusal to recognize their marriage for the purpose of the Australian obtaining U.S. residency as the spouse of an American. (The couple participated in a marriage ceremony with a Colorado minister and had been granted a marriage license by the Boulder, Colorado county clerk.) The court ruled that the word "spouse" ordinarily means someone not of the same sex. Then it noted the 1965 amendments to the Immigration Act, which expressly barred persons "afflicted with sexual deviations" (homosexuals) from entry into this country. The court concluded that it was unlikely that Congress intended to permit homosexual marriages for purposes of qualifying as a spouse of a citizen, when the Immigration Act explicitly bars homosexuals from entering into the United States.

Thorton v. Timmers (Ohio, 1975). A lesbian couple sought a marriage license. In denying their request that the court order the clerk to issue them a license, the court concluded that "it is the express legislative intent that those persons who may be joined in marriage must be of different sexes."

De Santo v. Barnsley (Pennsylvania, 1984). When this couple split up, De Santo sued Barnsley for divorce, claiming that the couple had a common-law marriage. A common-law marriage is one where the partners live together and act as a married couple, without going through a formal marriage ceremony. Only a few states still recognize common-law marriages -- in 1984, Pennsylvania was one of those states. The court threw the case out, stating that if the Pennsylvania common-law statute is to be expanded to include same-sex couples, the legislature will have to make that change.

Matter of Estate of Cooper (New York, 1990). Cooper died, leaving the bulk of his property to his ex-lover. His current lover sued to inherit as a surviving spouse under New York's inheritance laws. The court concluded that only a lawfully recognized husband or wife qualifies as a surviving spouse and that "persons of the same sex have no constitutional rights to enter into a marriage with each other."

Dean v. District of Columbia (Washington, D.C., 1995). Two men sued the District of Columbia for the right to get married. They lost their case at the lower level and appealed. They lost again at the appellate level when the court decided, under current D.C. laws, that the district can refuse to grant marriage licenses to same-sex couples.

Baehr v. Miike (Hawaii, 1999). A nine-year battle over the issue of same-sex marriages ended just 11 days before the Vermont ruling in Baker v. State, discussed below. The plaintiff in the Baehr case argued that Hawaii's marriage license rules were discriminatory. The case set off a national debate over same-sex marriage rights and prompted an onslaught of state and federal legislation designed to preempt the possibility that other states would be forced to recognize same-sex marriages from Hawaii. The case was finally dismissed on the grounds that the legislature had passed a prohibition on same-sex marriages before the Hawaii Supreme Court could render a favorable opinion.

Baker v. State (Vermont, 1999). Same-sex couples sued the state, the City of Burlington, and two towns, saying that refusal to issue them marriage licenses violated the Vermont Constitution and the state marriage laws. The Vermont Supreme Court, reversing a lower court decision, declared that the constitution required the state to extend to same-sex couples the same benefits and protections provided to opposite-sex couples. In response, the state legislature passed the Vermont Civil Union law, which went into effect in July 2000.

Goodridge v. Department of Public Health (Massachusetts, 2003). The Massachusetts Supreme Court held that the state law barring same-sex marriage was unconstitutional under the Massachusetts constitution and ordered the legislature to remedy the discrimination within six months. In February 2004, the court ruled that offering civil unions instead of civil marriage would not meet the requirements set forth in Goodridge.

In re Marriage Cases (California, 2008). The California Supreme Court held that the California statutes limiting marriage to opposite-sex couples violate the state constitutional rights of same-sex couples and may not be used to preclude same-sex couples from marrying.

Kerrigan v. Commissioner of Public Health (Connecticut, 2008). The Connecticut Supreme Court held that the laws allowing opposite-sex couples to marry while same-sex couples may only enter into civil unions is discirmination on the basis of sexual orientation, and that same-sex couples could not be refused the freedom to marry.

Reprinted with permission from the publisher, Nolo, Copyright 2008, http://www.nolo.com