Recognition of Same-Sex Relationships in Other States

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 their own 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 California, Maryland, 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?.

Finding More Information About the Status of Same-Sex Marriage

• 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

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, 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. As of August 2010, same-sex marriages are still on hold in the state, pending an appeal of this decision.

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).