Same-Sex Marriage: Developments in the Law

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, same-sex couples and LGBT families 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 and D.C., Plus Two States Pending

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 thousands have done so in the last five-plus years.

In October 2008, the Connecticut Supreme Court likewise ruled that the state's civil union law discriminates on the basis of sexual orientation and was 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, and Maine returned to being a "marriage lite" state, where same-sex couples have some of the rights of marriage but don't share equal rights with opposite-sex couples.

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 became effective in January 2010.

In March 2010, same-sex marriage became legal in D.C. after the city council's vote went through a Congressional approval period without a glitch. In 2011, the New York legislature legalized same-sex marriage.

In February 2012, both Washington State and Maryland passed same-sex marriage laws through the legislature, and the governors of both states signed the bills into law. However, there are anti-marriage-equality referenda on the November 2012 ballot in both states. If the challenge in Washington is unsuccessful, same-sex couples will be able to marry no later than January 2013. In Maryland, if the November referendum fails, marriage equality will take effect in January 2013. 

Same-Sex Marriage in California

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 2008 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, and follow-up legislation confirmed not only that married California couples will have their marriages recognized, but also that the state will recognize couples married in other states and countries. For more information, see Nolo's article I Said "I Do" With My Same-Sex Partner--But Am I Married?.

In January 2010, a landmark federal trial took place in California -- another challenge to Proposition 8, this time based on federal law. Two weeks of testimony concluded, and U.S. District Judge Vaughn Walker ruled that Proposition 8 is unconstitutional (the case is called Perry v. Schwarzenegger). An appeal to the Ninth Circuit federal court resulted in the appeals court upholding Judge Walker's opinion, but that decision is now on appeal, and no marriages will take place until the appeal is completed. It's likely to go to the Supreme Court before all is said and done.

Marriage-Like Relationships in Other States

California, Delaware, Hawaii, Illinois, New Jersey, Nevada, Oregon, Rhode Island, and Washington state offer either civil unions or domestic partnerships that are the legal equivalent of marriage in the states that offer them and 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 domestic partnership or 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 Still Exist in New Jersey

New Jersey passed a domestic partner law in January 2004 that offered limited rights to registered domestic partners. New domestic partnership registrations ended in January 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.

Marriage Lite Relationships

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.) A reciprocal beneficiaries law in Colorado provides some marriage-like benefits. 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. Wisconsin also provides some limited rights and benefits for same-sex partners.

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