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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.
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 went 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 was scheduled to take effect in September 2009 but was stayed pending a November ballot measure. The voters of Maine repealed marriage equality on November 3, 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 is effective as of 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?
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 no longer offers 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:
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 partnership is another form of relationship recognition for same-sex couples, but what it means differs from state to state. In California, the District of Columbia, 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, with the repeal of marriage equality the state returns to domestic partnership rights that are related primarily to disability and end-of-life issues. (For example, a domestic partner would take precedence over other family members to act as a guardian if one partner becomes disabled, and also would have the right to inherit from the other partner without a will.)
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.
Reciprocal beneficiaries laws in Colorado and Hawaii provide some marriage-like benefits. In Hawaii, 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. In Colorado, reciprocal beneficiaries may own property jointly, inherit from a partner in the absence of a will, receive priority for appointment as a conservator, and receive a number of other rights similar to those of married couples, though the list is far from complete.
A big question mark is whether same-sex relationships entered into in any of the marriage equality or marriage equivalent states 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 any of the states that allow it, 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, advocates for marriage equality -- and their opponents -- are eager to have the U.S. Supreme Court decide the issue of same-sex marriage once and for all. So far, only New York and the District of Columbia explicitly recognize same-sex marriages and marriage-equivalent relationships from other states. For more information, see Nolo's article I Said 'I Do' With My Same-Sex Partner -- But Am I Married?
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 discrimination on the basis of sexual orientation, and that same-sex couples could not be refused the freedom to marry.
Varnum v. O'Brien (Iowa, 2009). The Iowa Supreme Court held that the law prohibiting same-sex marriage violated the state constitution's equal protection clause, and that the law was not furthering any valid governmental objective. The court rejected a civil union or domestic partnership approach and held that full marriage equality must be provided to same-sex couples.
SB-115 (Vermont, 2009). The Vermont legislature overrode Governor Jim Douglas's veto to pass a law that defines marriage as "the legally recognized union of two people." The bill also repeals the procedure for obtaining a civil union.
For a comprehensive review of the complex and ever-changing rules of same-sex relationship laws, see Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions, by attorney Frederick Hertz with attorney Emily Doskow (Nolo).
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