I Said 'I Do' With My Same-Sex Partner -- But Am I Married?

During the time when same-sex marriage was available in California - between June and November 2008 -- same-sex couples from all over the country came to the Golden State to tie the knot. And of course, California's gay and lesbian citizens have been marrying in droves as well. All told, more than 18,000 couples married in California in that 141-day period.

Then, with the passage of Proposition 8 on November 4, 2008, it all came to an end. That was confirmed when the California Supreme Court upheld the validity of Prop 8.

In the meantime, thousands of gay people have gotten married in other states: under Massachusetts law ever since 2003, in Connecticut beginning in November 2008, in Iowa beginning in April 2009, and in Vermont beginning in September 2009, in New Hampshire beginning in January 2010 and in the District of Columbia beginning on March 9, 2010.

If you already married or intend to marry in any of the states mentioned above, a good deal of uncertainty remains. You may be asking at least one of the following questions:

• If you married in California: Is the marriage valid at all?
• If you're a resident of the District of Columbia, Massachusetts, Connecticut, Iowa, New Hampshire, or Vermont who married in your home state: Will the marriage be valid if you leave the state?
• If you're a nonresident who married in any of the above locations: Is your out-of-state marriage valid in your home state?

So what are the answers? Unfortunately, none of them are perfectly clear -- both because same-sex marriage is so new, and because most of the answers to these questions will come as a result of litigation, which takes time. (For updates on the law in all 50 states, check Nolo's article Same-Sex Marriage: Developments in the Law.) But there are some legal principles that allow for educated guesses.

And remember, everyone who has married now has the chance of becoming a test case for the state they live in -- so you may be the first to learn the answers to these questions, and pave the way for others!

Will These Same-Sex Marriages Be Recognized?

Here's a "rough guide" to the basics of relationship recognition.

California's existing same-sex marriages are valid. Though Proposition 8 was upheld by the Supreme Court, the court did confirm that same-sex marriages performed between June and November 2008 are valid, and recent legislation confirms this. Lesbian/gay/bisexual/transgender (LGBT) legal groups are advising couples to treat their marital relationships as valid, but also to register as domestic partners if they haven't done so already. Domestic partnership brings the same rights and responsibilities as marriage in California and will prevent the loss of important marital rights.

Marriages performed in any other marriage equality state are also valid in California, though marriages performed after November 4, 2008 will be recognized as domestic partnerships rather than marriages (a distinction without a real difference).

Marriages performed in California and any state that currently has marriage equality should be valid in other states, but may not be recognized. So long as you met the legal requirements for marriage when you got married (for example, you were of legal age and not married to someone else), your marriage will remain valid wherever you live. If you end up living in a same-sex marriage-recognition state, you'll be treated as married for all state law purposes. In New York and Maryland, your marriage will be recognized even though those states don't have same-sex marriage themselves.

Even in states that don't recognize same-sex marriages, you are still legally married, and if anyone asks your marital status, the correct answer is "married."However, if you are living in, or move to, one of the majority of states that has a "Defense of Marriage Act" (DOMA) law or a constitutional amendment that provides that only opposite-sex marriages are valid in your state, then most likely your marriage will not be recognized by that state. This means that state and local agencies (such as a taxing authority, public benefits agency, or local housing assistance office) will treat you as a single person. You can tell them you're married, but if they notice that you are both of the same sex, they'll probably disregard your marital status.

It's less clear what private agencies or employers will do in a nonrecognition state (a state that has passed a DOMA). Private parties have more freedom to recognize your marriage, so you may find yourself entitled to employment benefits (such as health insurance for your partner) or medical leave benefits based upon your marriage, even though the state refuses to recognize it. That depends on the individual employer or agency, and you may have to advocate for yourself before you get recognition.

The Burdens of Uncertainty

The issue of marriage recognition is being fought in many state arenas. Some courts are treating out-of-state marriages as valid, and some employers (both public and private) are extending benefits to same-sex married couples. There is real uncertainty as to what the courts and the employers really can do, and it will take several years for the issues to be resolved. In the meantime the best approach is to simply tell the truth, and let your employer or agency decide what to do. If the decision is costly to you or offends your sense of fairness, you'll then have to decide whether you're willing to go to court and make yourself a test case.

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