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 Six States
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 April 2009, Iowa and Vermont joined the ranks of states with full marriage equality. In Iowa, the Supreme Court ruled unanimously that the state's law limiting marriage to opposite-sex couples was unconstitutional, and that same-sex couples must have access to marriage. And Vermont became the first state to enact marriage equality through legislative action when the state legislature overrode a governor's veto and legalized same-sex marriage in that state. The law goes into effect on September 1, 2009.
In May 2009, the legislature in Maine passed a same-sex marriage bill. Governor John Baldacci, who in the past had opposed same-sex marriage, signed it immediately upon its passage in the Senate. Baldacci stated that he had changed his mind about allowing same-sex couples to marry and had come to see it as a "question of fairness and of equal protection under the law," and to believe that "a civil union is not equal to civil marriage." The bill takes effect in September 2009.
In June 2009, the New Hampshire legislature passed a same-sex marriage bill. Though Governor John Lynch personally opposes gay marriage, because religious groups were not required to officiate same-sex ceremonies or provide other services, he signed the bill into law the same day. "Today, we are standing up for the liberties of same-sex couples by making clear that they will receive the same rights, responsibilities -- and respect -- under New Hampshire law," Lynch said. The bill takes effect in January 2010.
In California, same-sex marriage was legal for five and a half months. 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 challenged the validity of Prop. 8, and the California Supreme Court agreed to take up the case. The Supreme Court held that Prop. 8 is valid, so same-sex couples are able to register as domestic partners, but not to marry. The court did however uphold existing same-sex marriages as valid. For more information, see Nolo's article I Said "I Do" With My Same-Sex Partner--But Am I Married?
Marriage-Like Relationships in Other States
Civil Unions in Connecticut, Vermont, New Hampshire, and New Jersey
Three states currently offer relationship recognition in the form of civil unions -- the legal equivalent of marriage in those states. With the advent of full marriage equality in September 2009, Vermont will no longer offer the option of civil unions, and the same is true of New Hampshire, which will get full legal marriage as of January 2010. In Connecticut 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, Nevada, 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 California, Nevada, Oregon, and Washington, domestic partnership is the legal equivalent of marriage. Registered domestic partners have the same rights and obligations as legally married spouses under state law, including property rights and the right to receive support from one's partner after a separation. In Maine, domestic partnership will give way to marriage in September 2009; in the meantime, the rights given to domestic partners are related only to disability and end-of-life issues. (For example, a domestic partner takes precedence over other family members to act as a guardian if one partner becomes disabled, and also has the right to inherit from the other partner without a will.) In the District of Columbia, the rights provided are more limited.
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.
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