Several states offer civil unions or domestic partnerships, which provide some of 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 domestic partnership or civil union. But the laws do not give same-sex couples any rights and benefits under federal law. Unmarried same-sex couples are not eligible for Social Security benefits, immigration privileges, or the marriage exemption to federal estate, transfer, or gift taxes.
On November 13, 2013, Hawaii’s Governor Neil Abercrombie approved a bill legalizing same-sex marriage in the state. Same-sex weddings began taking place in Hawaii on December 2, 2013.
Although the Illinois Senate approved a same-sex marriage bill on November 6, 2013, Governor Pat Quinn did not sign that bill into law until November 20, 2013. Same-sex weddings should begin taking place in Illinois on June 1, 2014.
On October 22, 2013, the Oregon Department of Justice ruled that all state agencies in Oregon must recognize valid same-sex marriages performed in other jurisdictions, even though same-sex couples cannot get married within the state. Oregon state agencies must now recognize valid same-sex marriages performed in other states and countries for the purposes of administering state programs and extending benefits, including medical benefits and tax exemptions.
Colorado, Hawaii, Illinois and New Jersey offer civil unions. Delaware, Rhode Island, Vermont, New Hampshire and Connecticut had civil unions, but with the legalization of same-sex marriage in each of these states, valid civil unions have been (or will be) merged or converted into marriages.
California, Oregon, Washington, Maine, Hawaii, D.C., Nevada, and Wisconsin offer domestic partnerships. Rights and benefits for couples in domestic partnerships vary from state to state.
If you are in a registered domestic partnership in California, the recent ruling legalizing same-sex marraige has no effect on your relationship status. Domestic partnership registrations are different from marriage licenses. The California Secretary of State’s Office will continue to process domestic partnership registrations and notices of termination of domestic partnerships.
In Washington state, any state registered same-sex domestic partnership, where neither party is sixty-two years of age or older, will be automatically converted into a marriage as of June 30, 2014.
To find out more information about the status of same-sex marriage, check the following sites:
- National Center for Lesbian Rights: www.nclrights.org
- Equality California: www.eqca.org
- Lambda Legal Defense and Education Fund Marriage Project: www.lambdalegal.org
- Human Rights Campaign: www.hrc.org
- National Conference of State Legislatures Civil Unions and Domestic Partnership Statutes
Chronological History of Same-Sex Marriage Cases and Rulings
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, DC, 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 DC 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.
Perry v. Schwarzenegger (California, 2010). A federal court ruled that California's voter-passed Proposition 8 -- which amended the state's constitution to read "only marriage between a man and a woman is valid or recognized in California" -- is unconstitutional. On June 26, 2013, the United States Supreme Court dismissed the appeal of this decision in Hollingsworth v. Perry case (U.S. Supreme Court, 2013), thereby letting the federal court ruling stand. Gay marriages resumed in California on June 28, 2013.
United States v. Windsor (U.S. Supreme Court, 2013). The Court’s decision in United States v. Windsor puts an end to the federal definition of marriage under the Defense of Marriage Act or “DOMA,” which limited marriage to a union between a man and a woman. Now, same-sex couples that are legally married in any of the 13 states that recognize gay marriage (or D.C.) are considered “married” in the federal government’s eyes, and can enjoy the same federal benefits that opposite-sex married couples do, including immigration status, Social Security benefits and federal tax benefits. In a 5-4 decision, with the majority opinion written by Justice Anthony Kennedy, SCOTUS found that the section of DOMA defining marriage as between a man and a woman violates the Equal Protection Clause and is therefore unconstitutional.
August 2013 U.S. Department of Treasury Ruling
In August 2013, the U.S. Department of Treasury ruled that all same-sex couples that are legally married in any U.S. state, the District of Columbia, a U.S. territory or a foreign country will be recognized as married under all federal tax provisions where marriage is a factor. This includes provisions governing:
- filing status
- personal and dependency exemptions
- standard deductions
- employee benefits
- IRA contributions
- the earned income tax credit, and
- the child tax credit.
The Treasury Department further clarified that federal recognition for tax purposes applies whether a same-sex married couple lives in a jurisdiction that recognizes same-sex marriage (such as California) or a non-recognition jurisdiction (such as Texas). But the decision does not apply to same-sex couples in domestic partnerships or civil unions.
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).
Udated by: Lina Guillen on December 5, 2013
1 | 2