Making It Legal
A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions
Emily Doskow, Attorney and Frederick Hertz, Attorney
January 2011, 2nd Edition
The ultimate guide to the past, present, and future of same-sex relationship laws in the U.S.
Same-sex relationships are treated differently under each state's laws, and nearly a quarter of the U.S. population lives in a state with some form of legal recognition for same-sex couples. More than 85,000 same-sex couples have entered a legal relationship since 1997.
Making It Legal is the only book that offers a comprehensive review of all the issues that influence the decision to marry, breaks down the complex and ever-changing rules of same-sex relationship laws. This book provides guidance on the important factors involved in the personal decision to marry along with the issues that every married couple may face:
- Is a pre-nup advisable? What does it involve?
- What happens when you want to file your taxes?
- When is a will or a living trust needed?
- What are the special needs of same-sex couples with kids?
- When should you turn to professionals for help during disagreements?
- How do you work with step-parents, past partners, and the blended family?
Nationally-recognized same-sex relationship law expert Attorney Frederick Hertz and Attorney Emily Doskow have written the ultimate guide to the ultimate decision -- whether to enter into a marriage or other legal relationship with your same-sex partner.
Since the first edition was published, numerous changes have taken place across the country. Some states have passed laws stating that they will acknowledge same-sex marriages from other states, even if they don’t have same-sex marriage. The 2nd edition is updated to account for these changes in state laws and projects additional changes likely to happen in the future.
“Indispensable and informative.” - Gavin Newsom, Lieutenant Governor of California
“Hertz and Doskow offer the sensible fruits of their decades of experience so you can sort through your options and make a plan.” - Jennifer C. Pizer, Senior Counsel and Director, National Marriage Project, LAMBDA Legal
“For gay couples and their professional helpers this is a necessary guide through the confusing patchwork of laws that apply to gay relationships, partnerships, unions and marriages.” - Don Clark, phD, Author of Loving Someone Gay
Emily Doskow is a practicing attorney and mediator who has worked with families in the Bay Area since 1989. She is the author of Nolo's Essential Guide to Divorce, the co-author of Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnership & Civil Unions and The Sharing Solution: How to Save Money, Simplify Your Life & Build Community, and the editor of many Nolo titles, including Divorce Without Court: A Guide to Mediation and Collaborative Divorce and the bestselling Neighbor Law: Fences, Trees Boundaries & Noise. She specializes in family law, including adoption, parentage issues, domestic partnership formation and dissolution, and divorce. She is a graduate of the Boalt Hall School of Law at the University of California at Berkeley.
Emily blogs on the ever-changing laws that affect gays and lesbians at Queer Justice: Nolo's LGBT Law Blog. She also blogs on marriage, adoption, parenting, divorce, child custody and child support at Nolo's Divorce, Custody & Family Law Blog, and on practical tips for sharing everything from lawnmowers and land to time and information at The Sharing Solution.
Frederick Hertz is a practicing attorney-mediator and the author of Legal Affairs: Essential Advice for Same-Sex Couples (Owl Books) and co-author of Nolo's Living Together: A Legal Guide for Unmarried Couples, A Legal Guide for Lesbian & Gay Couples and Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnership & Civil Unions. He lives and works in Oakland, California.
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1. A Brief History of the Same-Sex Marriage Movement
- The Not-So-Good Old Days
- The Marriage Pioneers
- The Emergence of Gay Families
- Domestic Partnership: In the Beginning
- The Question of Marriage
2. Same-Sex Marriage Around the World and at Home
- The International Landscape
- The Domestic Landscape
- State by State: Marriage and Relationship Recognition in America
- Equality in the Works
- When Is a Spouse Not a Spouse? Introduction to the Problem of Nonrecognition
3. What It Means to Be Married: The Rules of Marriage and Divorce
- The Architecture of Marriage
- Rules of Marriage in the Present
- Rules of Divorce
- Marriage and Parentage
- The Benefits of Marriage
4. The Real-Life Consequences of Legal Discrimination
- Federal Nonrecognition
- Interstate Nonrecognition
- Special Issues for Transgender Partners
- Recognition … Of What You Can and Can’t Control
5. Marriage Material
- Applying Logic to Picking a Partner
- Selecting a Mate: The Historical Backdrop
- Legal Barriers to Commitment
- Things to Consider Before Saying “I Do”
6. Ten Steps to a Decision
- The Ten Steps to a Decision
7. To Prenup or Not to Prenup
- What’s a Premarital Agreement?
- Essential Ingredients of a Prenup
- The Process of Creating a Prenup
- The Emotional Dimensions
- Making Agreements If You Choose to Remain Unmarried
- The Bottom Line: Costs of a Prenup
8. Avoiding the Ugly Gay Divorce
- The Lessons of Experience
- Things You Should Know About Divorce
- Divorce Stories
- Don’t Become the Bad or the Ugly
- How to Resolve Conflict at Divorce
- Collaborative Divorce
- Avoiding the Ugly Gay Divorce When You’re Unmarried
9. Estate Planning for Same-Sex Couples
- Planning for Disability
- Planning for Death
- Intestacy Rules
- Other Ways to Transfer Property at Death
- Fiduciary Duties and the Problem of “Influence”
- Special Issues for Parents
- Cautionary Tales
- Estate Planning When You’re Not Married or Legally Partnered
10. Legal Change in Action: How Change Happens and What to Expect
- How Legal Change Happens
- Marriage in the Courts
- Marriage in the Legislature
- Marriage and the Voters
- What Does the Uncertain Future Mean to Your Present?
- The End
A. Relationship Recognition Chart
C. The Marriage License Test
A Brief History of the Same-Sex Marriage Movement
The Not-So-Good Old Days ....................................................... 6
The Marriage Pioneers................................................................ 8
The Emergence of Gay Families.............................................. 10
Domestic Partnership: In the Beginning .................................. 10
The Impact of AIDS ............................................................. 12
The Expansion of Domestic Partnership ............................. 13
The Question of Marriage......................................................... 14
Gay Soldiers and Lesbian Moms.......................................... 15
Aloha: Marriage Equality Comes and Goes in Hawaii.......... 16
The Political Game................................................................ 17
The Marriage Equivalent Movement ................................... 18
The Marriage Equality Movement ........................................ 19
hy read about the history of the gay marriage movement? For one thing, you don’t have to worry that it will take up a lot of your time. We have come so far, so fast, in so many ways, that the time period you’ll be reading about is fairly compressed (and this summary is a compressed version of it). For another, it’s a fascinating story of a diverse community evolving in the face of political and social forces that no one could have anticipated even 50 years ago. The current confusion of rules for same-sex couples has emerged from a complex political and legal history, and knowing the history will help you in trying to make sense of your legal options.
Just over ten years ago, in the introduction to my previous book, Legal Affairs, I offered readers the following caution: “If same-sex marriage is ever allowed, you will need to think about whether marriage is right for the two of you, not just whether it’s politically correct.” Little did I imagine in 1998 that we would all be facing this question so soon.
The Not-So-Good Old Days
While there certainly were same-sex relationships back through the ages, and even cultures where such relationships were socially acceptable, the modern movement for relationship recognition in the United States only began around 1969. In those years, getting married was of little interest to most lesbians or gay men—either legally or personally. If the topic of marriage ever arose, it usually related to getting out of a straight marriage—not getting into a gay one. Even long-term same-sex couples lived in a world of personal bonds, social networks, and private commitments—not a world of formal marriage or legal recognition. (And by the way, we were all simply “gay” back then, not LGBT, Q, or I.)
Both personal and political struggles in those early years focused on obtaining recognition and validation as gay individuals, not as couples, and on winning the basic right to be safe from harassment, discrimination, violence, and social exclusion. Couples knew that their relationships were not likely to be acknowledged, and most of us accepted, sometimes almost happily, the lack of any public recognition of our relationships. (The quintessential novel of gay coupledom in that period was Christopher Isherwood’s A Single Man, which tells the story of a recently widowed gay man whose long-term partnership was invisible even to those closest to him, and who must therefore endure the pain of mourning his recently deceased lover alone.)
This was a time when most homosexuals lived deep in the closet, and coming out at all could jeopardize one’s physical safety, never mind one’s social standing or economic security. Among the small minority of gay folks who were open about their lives, many appreciated the experience of living outside of the social framework of marriage and divorce, creating their own living arrangements in isolation from most of mainstream society.
The legal battles of those years reflected this reality. For gay men, the relevant law was criminal law. Men were frequently arrested if they attempted to pick up a sexual partner in a public place, subscribed even to a non-pornographic gay magazine, or frequented a local gay watering hole. Given this oppressive atmosphere, legal and political organizing was directed at lifting the criminal prosecutions. Legalizing a love relationship in any way, let alone by marriage, would have seemed an impossible and, for most of us, an irrelevant quest.
For lesbians, the battlefields were typically located on quite different legal terrain. There were fights to keep women’s social institutions free from harassment, to publish lesbian magazines, or to form social organizations, but for the most part, lesbians were in court most often when they tried to retain custody of their children after leaving a heterosexual marriage. Newly out lesbian moms often faced legal fights with ex-husbands over the right to continue coparenting their children, and for the most part, courts were not sympathetic. Homosexuality alone was often seen as sufficient grounds for denying a lesbian parent all access to her children or for justifying limitations on custody or visitation.
Given these realities, legal marriage was the last thing that most lesbians and gay men worried about. Also, many newly liberated lesbians and gay men had already served their time in heterosexual marriages and were not eager to re-create the same arrangements in their new lives. For women, negative experiences as the subordinate partner in a heterosexual marriage, coupled with an emerging feminism, led to a view of marriage as a restrictive, confining, sexist institution that had little appeal. And for gay men, marriage meant gender roles, conventionality, and monogamy, none of which matched the real lives of most sexually active gay men. Even those who were living in long-term relationships did not view them as marriages, but rather, as long-term partnerships that thrived outside of any legal framework.
This self-image as outsiders was reinforced by the living arrangements and political values of those who were the most vocal in the gay community—for the most part a younger, more activist crowd. Gay liberation itself was framed as a “movement” that existed in opposition to mainstream society—a struggle for liberation, not assimilation. Marriage, to the extent it was even discussed at all, was viewed as an institution that resided deep in the heart of the mainstream, and that was not where many of us wanted to live.
In that political context, lesbians and gay men who had the audacity to advance a campaign for legal marriage were seen as retrograde—to the extent they were even noticed at all. Marriage simply was not a high legal or political priority, despite the fact that the lack of marriage equality was broadly understood to have discriminatory consequences for many lesbians and gay men.
The Marriage Pioneers
In 1969, the historic Stonewall riots took place in New York City—the first time in the United States that the LGBT community fought back visibly and powerfully against oppression and homophobia. It was a time of enormous social change and agitation, with liberation movements breaking out in the women’s community and other marginalized communities everywhere. The sexual “revolution” of the 1960s was spreading wildly—for gays and straights alike. And then in Minneapolis, Minnesota, of all places, Jack Baker and Mike McConnell walked out on that highly charged political stage. In contrast to Stonewall and other political events, and even against the backdrop of a fairly active gay community in Minnesota, Baker and McConnell were about as mainstream as a gay couple could be. Baker was a law student and later student body president at the University of Minnesota, and his lover McConnell was a university librarian. Together they went to Minneapolis City Hall and applied for a marriage license.
I well remember their story, as I was living in Minnesota at the time—not as a gay activist or lawyer, but rather, as a high school senior trying to figure out my own sexuality and my place in the larger society. I had sat in the back row of a meeting of Minnesota’s vibrant gay liberation organization, named “F.R.E.E.,” which stood for “Fight Repression of Erotic Expression”—not the sort of organization that would ever be fighting for the right to get married. I’d even been taken by my older sister and her gay best friend to the local gay bar, where I got to see men kissing and enjoyed watching the drag queens having a great old time. But marriage?
As news of Baker and McConnell’s rejection at City Hall and subsequent lawsuit spread, the reaction from the gay community was intensely and universally negative. Baker and McConnell were not expressing the rejection of straight society that was the gay norm, but rather, a desire to enter the most conventional core of the heterosexual mainstream. Their agenda appeared to defy everyone’s sense of how the world worked. Homosexuals wanting to get married was as strange a concept for gay people to absorb as it was for straight folks—and for the latter, it was virtually unthinkable.
Not surprisingly, Baker and McConnell’s efforts were not successful, either legally or politically. Their application for a marriage license was denied, and in a series of rulings over the next few years the Minnesota courts upheld that denial—resulting in the world’s first published appellate court case on the issue of gay marriage.1 Applying reasoning that presaged the recurring basis for rejecting such appeals over the next three decades, the Minnesota justices concluded that because marriage was “by definition” the union of a man and a woman, homosexual couples could not assert a right to marry. The court rejected any application of Loving v. Virginia, the U.S. Supreme Court case that lifted the ban on interracial marriage.2 In other words, the definition of the word “marriage” set the rules for the reality of marriage—end of story.
A few couples launched similar efforts to marry legally in other states over the ensuing years, but each attempt was isolated and none garnered much support. Each of these efforts simply failed. Gay people remained outside of mainstream society, and while we would fight vigorously to improve the quality of our marginalized lives, we didn’t really expect—and some of us didn’t desire—to be invited back in from the margins.
The Emergence of Gay Families
It seems ironic now, but looking back through the prism of subsequent legal developments, the dramatic successes of a gay liberation movement that disdained marriage may actually have sowed the seeds for the later marriage campaign. Throughout the 1970s and 1980s lesbians and gay men emerged from the closet, embraced their sexual identities and formed new and lasting relationships, gathered the courage to come out at work, and (primarily in the women’s community in the early decades), found ways to raise children proudly and openly—all in the absence of legal marriage. We weren’t getting married, but we were sexually active, socially alive, and creating loving relationships and solid communities across the United States.
Although no one was trying to do it, the movement’s establishment of greater freedom and visibility for lesbian and gay couples created underlying societal conditions that made the creation of legal relationships both desirable and, in the end, achievable. As the number and visibility of long-term same-sex couples grew, and especially as so many couples formed lasting bonds that ended up looking very similar to traditional heterosexual families, it was only a matter of time before the injustices wrought by the denial of legal marriage would become increasingly unacceptable. In this way, a path of liberation that was not directed toward the legalization of gay marriage ended up taking us there indirectly.
Not that it happened in any straightforward or direct way. Instead, in an odd congruence of political realism with legal practicalities and the community’s underlying discomfort with the institution of marriage, domestic partnership was born.
Domestic Partnership: In the Beginning
By the early 1980s I was a young lawyer living in the San Francisco Bay Area, and it was there that the gay community launched a series of campaigns designed to obtain limited benefits for couples at the local level—with health insurance coverage for city employees as the highest priority—under the newly minted term for nonmarital relationships: “domestic partnership.”
Domestic partnership appeared to be an ideal alternative to marriage. It covered the immediate practical needs of socially conventional cohabiting partners, like health insurance, without trying to barge into any established social norms such as marriage, and thus it was unlikely to offend the heterosexual community. The fact that the campaign wouldn’t be seen as a quest for conventional marriage was also a plus within the gay activist community. In some settings it even offered an option for opposite-sex couples who wanted to escape the confines of traditional marriage.
In practical political terms that were key to its success, domestic partnership was a legal status that could be granted by local governments and private employers without getting into political fights on a national or even a statewide level. Progressive cities like Berkeley or innovative companies like New York City’s Village Voice newspaper could extend spousal benefits to their own residents or employees, with no need to ask permission from any less enlightened entities.
Even so, these early efforts were not always an easy sell. It took five years of lobbying by a stalwart city employee before the city of Berkeley enacted the nation’s first domestic partnership ordinance in 1984. At the outset only city employees could register, and the program offered only dental insurance coverage and leave benefits to city employees, but within a year Berkeley began including medical insurance benefits as well. In 1985, West Hollywood took a major step forward by creating a domestic partnership registry open to all residents, not just city employees. Private employers now could extend similar benefits to those who signed up on the city’s registry.
Access to health insurance and having a say in the treatment of one’s seriously ill partner were the central concerns in the debate about the domestic partnership ordinance that was submitted to the San Francisco Board of Supervisors in 1982. The legislation was approved, but vetoed by then-Mayor Dianne Feinstein, who felt it was too radical for the time. (This was only two decades before San Francisco issued the nation’s first marriage licenses to same-sex partners. Change indeed has occurred quickly.)
It took the city several more years before the “gay capital” was ready to embrace a domestic partnership ordinance, but eventually, in 1989, San Francisco followed Berkeley and West Hollywood and enacted a citywide domestic partnership law (which exists to this day).
Domestic partnership in the 1980s meant different things to different people, but one thing it was not was marriage. It did not require a solemnization ceremony; the state system of marital property law did not apply; it had no hint of religious sanctification; and it did not fundamentally change the legal or financial relationship between the partners. The local rights and employment benefits that it provided were only marginally beneficial to the gay community at large, though they were of real value to the affected employees. Nevertheless these new laws were meaningful to the extent they established the first legal framework for governmental recognition of same-sex relationships.
Early domestic partnership ordinances also set up a system of registration that other cities and private employers could use as a model. Recognizing that domestic partnership was an alternative to marriage, many jurisdictions and companies allowed opposite-sex unmarried couples to register as domestic partners as well—but overall it was the LGBT community that carried the domestic partnership campaign forward.
The Impact of AIDS
Shortly after the first domestic partnership registration systems were set up in 1984, AIDS began to spread through the gay community. What had begun as a thin trickle of sad stories about how the absence of marriage affected lesbian or gay couples turned into a torrent. The realities of illness and death transformed a theoretical injustice into a daily tragedy for thousands of people. At the same time, the heartrending story of Karen Thompson, a lesbian who was barred from caring for her partner, Sharon Kowalski, after a car accident left the latter incapacitated, became the poster story for the lack of rights, standing in for the stories of many others.
All across the country gay men were being kept out of their sick lovers’ hospital rooms, denied the right to make medical decisions for their partners, and deprived of their rightful share of financial assets, all because they were not legally “related” to their dying partners. The refusal by families and social institutions to recognize these caregiving partners as family brought home in a powerful way the truth about the legal discrimination that had existed for so many decades. Domestic partnership registration became all the more valuable, as it offered a set of basic rights, like hospital visitation and health insurance, that could make a critical difference in the lives of those with AIDS (and other medical conditions) and their same-sex partners.
AIDS didn’t just bring to the surface the discriminatory treatment of our relationships. It also changed, sometimes for the better, the way in which others viewed those relationships. As a San Francisco lawyer doing legal work for men with AIDS in the mid-1980s, I witnessed many families arrive in San Francisco and meet the partners of their dying sons and brothers for the first time. Parents were forced to acknowledge their sons’ chosen community, and often helped to care for their dying relative under the welcoming umbrella of their host, the surviving “domestic partner.” At the same time, same-sex relationships were gaining new respect and recognition in films, plays, and personal stories about the epidemic.
The Expansion of Domestic Partnership
In the 1980s and early 1990s, a growing number of cities began offering local tax benefits to registered domestic partners, and others extended employment benefits such as bereavement and parental leave. By 1992, even some publicly traded companies were offering such benefits, as were many of the larger university systems. Eventually, a majority of Fortune 500 companies began extending benefits to domestic partners—some only to same-sex partners, and others to opposite-sex unmarried partners as well. However limited the benefits were, they bestowed an increasingly meaningful symbolic benefit to the entire community, and they raised the expectations of same-sex couples.
In 1987, just when life in our gay community seemed as bad as it could be amid the widening scourge of AIDS, it got worse. The United States Supreme Court ruled that it was not unconstitutional for the state of Georgia to criminalize homosexual acts simply because, in effect, the Bible said so.
If sentencing two adult men to jail for enjoying a consensual sexual relationship in the privacy of their own home was legally acceptable in the eyes of the highest court in the land, then it was evident that extending the rights of legal marriage to our families was utterly beyond hope. Activist attorneys weren’t just discouraged, we were preoccupied with other tasks. The growing needs of gay men who were dying from—and then, as medical progress was made, learning to live with—AIDS, and increasingly, the needs of lesbians raising their own children, were much higher legal priorities for most of us.
The Question of Marriage
During this same period of the 1980s and 1990s the number of same-sex couples in long-term committed partnerships and the number of lesbian families raising children continued to grow. Nonetheless, marriage was still not a front-burner issue for our community.
The marriage issue was framed very differently in the early 1990s than it is now. Gay civil rights groups openly debated whether to devote resources to a fight to legalize same-sex marriage. The pro-marriage-equality camp argued that marital relationships are the basis of significant material benefits and social legitimacy. For that reason alone, advocates argued, lesbians and gay men should have equal access to marriage and the right to make the same choices as opposite-sex couples. Many shared the view that marriage was not the ideal way to organize society, but still felt that justice required allowing lesbians and gay men equal access to the institution.
On the other side of the debate, skeptics took the position that marriage was fundamentally a sexist institution based upon a social model that presumes a dominant and higher-paid husband, a deferential and lower-earning wife, a presumption of monogamy and permanence in the relationship (“till death do us part”), and a societal favoritism of couples over single people—all of which fostered values directly contrary to those espoused by the gay liberation movement. The marriage skeptics argued that it was better to work toward building a society that would provide housing, health insurance, and social dignity for every individual, single or coupled, instead of trying to squeeze everyone into a marriage “box” that was constricting and narrow.
This debate still exists, but it continues under the surface, as the marriage equality movement has emerged as the primary battleground for equality.
Gay Soldiers and Lesbian Moms
In the mid-1990s two seemingly unrelated developments occurred: the opposition to the military’s policy of discharging gay soldiers became more vocal and visible, and there was a noticeable “gayby” boom in the lesbian community. While on the surface these developments had little to do with the marriage movement, they had a profound impact on how society saw our relationships, and in turn, how we envisioned our own place in society. Gay soldiers? Lesbian moms? Clearly, this was not the 1970s picture of homosexual activists rioting in the streets, and certainly it was not the world of radical lesbian feminist separatists and sexually adventurous gay men. Over time, and quite unpredictably, these two trends didn’t just change the way the straight world saw us; they also fostered and then highlighted a noticeable trend toward the mainstream in our own communities. Call it conservative or call it assimilationist—or call it equality. Whatever you call it, what it meant to be gay was changing dramatically. Lesbians and gay men were moving out of gay ghettos, raising kids of their own, demanding to join the military, and at the same time coming out in the corporate workplace all over the country.
These changes could be felt and seen everywhere. I certainly saw them in my legal practice. Couples throughout the San Francisco Bay Area were buying houses, raising kids, taking on corporate leadership positions, and entering politics. Over time, some of them were, inevitably, breaking up. All of them needed advice about how to structure their family lives in the face of a still-homophobic world where marriage remained unavailable.
In light of these social changes, it should have been no surprise to see a blossoming of the desire to legalize same-sex marriage. Couples were already living lives that resembled marriage in many ways, and yet they were continually confronting the discriminatory reality of the lack of marriage equality. It was frustrating, not to mention expensive, for partners in marriage-like relationships to try to craft protections without the support of the legal framework of marriage. The gap between social reality and legal exclusion was growing intolerable.
Aloha: Marriage Equality Comes and Goes in Hawaii
Despite the growing awareness of marriage inequality on the part of couples and the lawyers working with them on structuring (and dissolving) their relationships, the first marriage cases did not originate with any of the legal advocacy groups. On the local level, lawyers were too focused on meeting the practical needs of clients, and on the national level the advocacy groups were too discouraged by negative court decisions. The early lawsuits were grassroots efforts—brought by idealistic couples who were tired of being mistreated and disenfranchised, with the help of lawyers who were not always part of the gay legal mainstream.
This new chapter of the marriage story began to unfold in 1993, when a few gutsy couples in Hawaii linked up with a straight civil liberties attorney and sued to lift the state’s ban on same-sex marriage. Around the same time, a couple in New York State launched a parallel battle, also on their own, without the support of any national gay rights legal group.
Gay People Can Save Themselves for Marriage, Too
While the New York case was never able to achieve any legal success, the plaintiffs in that case exemplified just the sort of maverick independence that was fueling the marriage effort. To them their case was a simple matter of justice, not political strategy. They were in love, and they were so traditional that they didn’t even want to live together until they were married! All they wanted was what their straight friends and relatives had: a traditional marriage, public legal recognition, and the identity of spouses to each other. They didn’t care if the courts seemed unsympathetic or if the timing of their case didn’t seem “prudent” to the gay legal strategists. They were outraged by the injustice of their situation and they wanted to right that wrong, right away. Even though they went on to lose their case in the courts, this couple and others like them deserve much of the credit for helping to bring us to where we are today.
The Hawaii marriage campaign was a telling illustration—and a precursor —of how unpredictable the struggle for legal marriage would be. Initially, the courts were not persuaded by the arguments for legalizing gay marriage, but eventually the Hawaii Supreme Court sided with the gay plaintiffs and ordered the parties to return to court for a trial on the question of whether there was any legal justification to ban gay marriage.
This ruling was itself a tremendous victory, as it set a new standard of questioning the government’s position and distinguished between civil and religious marriage, rather than simply deferring to a dictionary definition of marriage. It opened the possibility of actually winning such a battle. No longer was a mere citation to Webster’s dictionary or the Bible the end of the legal analysis.
After the trial, the lower court found that the government was not justified in prohibiting same-sex marriage, and legal marriage suddenly seemed possible. But then, as would happen later in so many other states, antimarriage activists switched tactics, bolted out of the courtroom, and launched a statewide ballot campaign to ban same-sex marriage. If they couldn’t win in court, they would take the issue to the voters—and in a terrible blow for the marriage movement, the people of Hawaii voted to enact a constitutional amendment banning same-sex marriage. A few more years of political wrangling ensued, but Hawaii’s great marriage victory was left in tatters. In the end, the state only managed to offer a “reciprocal beneficiary” registration scheme that provides very few substantive rights. (In 2010, the Hawaii legislature passed a marriage-equivalent civil union bill, but governor Linda Lingle vetoed it.)
The Political Game
The Hawaii victory invigorated antigay activists, who ramped up efforts to prevent same-sex marriage at both the state and federal levels. The anti-equality forces won their biggest victories in the legislatures. In 1996 the United States Congress enacted the “Defense of Marriage Act” (DOMA), which precludes federal recognition of any same-sex marriage—even one that is lawful in the state where it occurs. Over the next five years, more than 40 states passed “mini-DOMA” statutes, prohibiting same-sex marriage in the state. Some passed so-called “super-DOMA” laws, which provide not only that the state itself doesn’t sanction same-sex relationships of any kind, but also that same-sex relationships that are legal in other states won’t be recognized there.
Whether marriage as an institution was good for people and whether marriage was the right choice for any particular couple were no longer the pressing political issues for the LGBT community, which had no choice but to respond to the homophobic activism. And so, very quickly, and quite surprisingly to some of us older gay rights advocates, marriage equality became the front line gay civil rights battle.
The Marriage Equivalent Movement
Even as the marriage equality campaigns progressed, domestic partnership continued to play an important role. For politicians, domestic partnership offered a safe harbor—it provided an expandable package of practical rights without stepping into the political danger zone of marriage, instead keeping the focus on the practical and legal dimensions of the relationship.
In an odd juxtaposition of political agendas, antimarriage and pro-marriage forces could join in support of domestic partnership, with one faction (ours, that is) viewing it as a stepping-stone to marriage, and the other side hoping that it would be the only status ever granted to same-sex couples. More and more companies, universities, and municipalities enacted domestic partnership programs.
For a while it appeared as though the “domestic partnership but no marriage” stalemate would rule the day. Starting in the late 1990s, however, the line between domestic partnership and legal marriage began to blur. The roots of the U.S. breakthrough came from Europe: A comprehensive civil partnership system called PACS was enacted in 1999 in France, granting some marriage rights to registered couples of any gender configuration, without calling it marriage. Again, the idea was to avoid the highly charged language and the symbolic dimensions of marriage, while providing marital rights as practical benefits.
Inspired by this blended approach, a new kind of in-between arrangement emerged in the United States as well. In 1999 the Vermont Supreme Court ruled that denying marital benefits to same-sex couples was unconstitutional. The court didn’t say there had to be marriage, but rather, that it was wrong to deny marital rights to lesbian and gay couples. After a great deal of statewide political haggling, the Vermont legislature opted not to legalize same-sex marriage, but instead to establish a civil union status that came with all of the same rights and duties of marriage.
The resulting political compromise made sense historically and was probably unavoidable, but the adoption of the model in other U.S. states has created a messy patchwork of laws that can make life extraordinarily complex for many same-sex couples. So far, ten states have established some form of domestic partnership or civil union—some nearly identical to marriage except by name, and others offering only a limited selection of marital benefits. Meanwhile, as this book goes to press, five states and the District of Columbia allow marriage, and every state is following its own course with regard to the recognition of partnerships or marriages originating elsewhere. (See Chapters 2 and 4 and Appendix A for the specifics of the state rules.) It’s a crazy and, in the end, an unworkable system, but it is our current legal reality.
The Marriage Equality Movement
To an extent that would have been unforeseeable even five years ago, the “just don’t call it marriage” compromise was itself not destined to last very long. In 2003 the Massachusetts Supreme Court rejected the compromise approach and issued a landmark ruling declaring that nothing short of marriage would remedy the discriminatory impact of the state’s opposite-sex-only marriage rules. The court’s written opinion was deeply touching, as it spoke of the need to impart dignity and respect to all couples. This wasn’t just a matter of extending practical benefits that could be conferred by state registration, but rather, an insistence by the court on full marriage equality, including the name.
After the ruling, the Massachusetts legislature resisted the clamoring demands of antigay activists to rescind the court’s ruling, and in May 2004 the nation’s first legal gay weddings were celebrated in the Bay State. Since then, more than 15,000 same-sex couples have married in Massachusetts.
Gay activists weren’t the only ones demanding change. Also in 2004, San Francisco’s new mayor, Gavin Newsom, was so deeply offended by antigay comments made by then-President Bush in his State of the Union address that Newsom came back to San Francisco and ordered city officials to start issuing marriage licenses to same-sex couples.
The result was an episode of political theater that was extraordinary even by San Francisco standards. Lesbians and gay men lined up in the pouring rain to receive official blessings on their relationships, and San Francisco City Hall was awash in wedding gowns and tuxedos, buoyantly happy couples, and beaming relatives celebrating the weddings of their children, parents, and friends. The California courts shut down the unauthorized weddings within a few weeks (and soon after that invalidated all of the marriages), but the genie was out of the bottle. Within a day of the California Supreme Court’s issuance of an order to stop the San Francisco marriages, four separate lawsuits challenging the ban on gay marriage were filed in California courts.
The California legal train had left the station, and four years later, on May 15, 2008, it arrived at the ultimate destination when the California Supreme Court threw out the ban on same-sex marriage. The court’s ruling was eloquent in its defense of the rights of all people in loving relationships to enjoy the rights and privileges of marriage. While the justices recognized that couples already had access to the technical rights of marriage under California’s domestic partnership laws, they ruled that the creation of a second-class status was constitutionally unacceptable and—for the first time—included lesbians and gay men in the category of suspect classes entitled to the highest level of constitutional protection in the courts.
But just six months after the court ruled, and after nearly five months’ worth of weddings had taken place, California voters approved Proposition 8, which provides that only marriage between a man and a woman is valid and recognized in California. Once again, the marriage door had slammed shut. Supporters of marriage equality protested the proposition in a lawsuit to the California Supreme Court, which ruled in May 2009 that Prop 8 was valid and allowed the constitutional amendment to stand. Same-sex couples thus continue to be barred from legal marriage in California—but the Supreme Court also ruled that those who married between June and November 2008 are still married. The California legislature also passed a law clarifying that California will recognize same-sex marriages, as well as civil unions and domestic partnerships, from other states. In 2009, two same-sex couples filed a federal lawsuit challenging Proposition 8, and a trial was held, ending in a ruling by Judge Vaughn Walker that Proposition 8 is unconstitutional. The case was immediately appealed to the Ninth Circuit Court of Appeals and no marriages can take place while the appeal is pending. All of these important developments do nothing to mitigate the fact that continuing inconsistencies in the laws create confusion for families as well as the institutions, like employers and insurers, for whom family relationships are relevant.
In another landmark decision in 2008, the Connecticut Supreme Court ruled in October that the state’s ban on same-sex marriage was unconstitutional, and that the civil union option already in effect there was separate, and thus not equal. Following the same reasoning as the California Supreme Court, the Connecticut justices ruled that segregating same-sex couples into a lesser form of partnership—even one offering the same rights and duties
of marriage—was unacceptable. That decision stood firm through the
November 2008 elections, and that month same-sex couples began marrying in Connecticut. Then, within a few short months, the Iowa Supreme Court and the Vermont and New Hampshire legislatures opened the door to legal marriage for same-sex couples. In 2010, Washington D.C. also began issuing marriage licenses to same-sex couples.
And so, as of Decembeer 2010, full legal marriage is available in five states and the District of Columbia. Massachusetts originally prohibited out-of-state couples from marrying there if they lived in a state that barred same-sex marriage, but that ban has been lifted, and currently couples from anywhere in the world can travel to Canada, Iowa, or New England and be legally married.
In other words, it took just 40 years for the marriage-equality movement to evolve from the lonely fantasy of two Minnesota men to a reality for every same-sex couple in the county.
–Several male couples married in a Catholic church in Rome, 11 of whom were later burned to death as heretics
–Stonewall Riots in New York City
–Jack Baker and Michael McConnell apply for a marriage license
–Minnesota Supreme Court rejects marriage claim
–Washington State court rejects marriage claim
–Anita Bryant forms a group called “Save Our Children” to repeal antidiscrimination laws in Florida
–Antigay teachers campaign in California (Briggs Initiative)
–Assassination of Harvey Milk
–First reported case of AIDS (originally known as GRID)
–Lawsuit seeking domestic partnership rights defeated in San Francisco
–San Francisco’s domestic partnership ordinance vetoed
–Village Voice newspaper gives domestic partner benefits
–Liberace sued for palimony by ex-lover
–Wisconsin passes first statewide antidiscrimination law
–Berkeley city employees win domestic partnership protection
–West Hollywood establishes public domestic partnership registry
–Rock Hudson dies of AIDS
–First lesbian second-parent adoption approved in Oregon
–U.S. Supreme Court upholds antisodomy criminal laws
–San Francisco establishes domestic partnership registry
–Denmark legalizes same-sex domestic partnerships
–Berkeley enacts public domestic partnership registration
–Hawaii couples file a lawsuit to legalize same-sex marriage
–“Don’t Ask, Don’t Tell” gays in the military rules enacted
–U.S. Congress enacts the Defense of Marriage Act
–Hawaii voters pass constitutional amendment banning same-sex marriage
–Vermont court rules marriage ban unconstitutional
–France establishes PACS (domestic partnership registration)
–California enacts first statewide domestic partnership registration
–Vermont legislature creates civil union (marriage equivalent) registration
–Same-sex marriage legalized in the Netherlands
–Massachusetts court invalidates ban on same-sex marriage
–Belgium legalizes same-sex marriage
–U.S. Supreme Court invalidates antisodomy statutes
–San Francisco allows same-sex marriages; court says no
–Massachusetts allows first legal same-sex marriages
–Same-sex marriage legalized in Spain and Canada
–South Africa legalizes same-sex marriage
–New Jersey civil unions (marriage equivalent) commence
–Civil partnership (marriage equivalent) authorized in Great Britain
–Mexico City legalizes same-sex domestic partnership
–Uruguay legalizes same-sex civil unions
–California Supreme Court lifts ban on same-sex marriage
–California voters enact Proposition 8, reinstating ban on same-sex marriage
–Connecticut court invalidates ban on same-sex marriage
–New Hampshire authorizes marriage equivalent civil unions
–New York State recognizes legal marriages from other states
–Norway legalizes same-sex marriage
–California Supreme Court upholds Proposition 8, limiting marriage to a man and a woman; court also upholds validity of existing same-sex marriages
–Iowa Supreme Court invalidates ban on same-sex marriage
–Vermont, Maine, and New Hampshire gain marriage equality through legislative action, but equality in Maine is lost after a public vote
–Nevada legislature creates domestic partnership law
–Maryland recognizes legal marriages from other states
–District of Columbia legalizes same-sex marriage
–Argentina legalizes same-sex marriage
–Mexico’s Supreme Court upholds marriage equality law for Mexico City
–Iceland’s lesbian prime minister marries her partner
–Illinois passes civil union bill, to go into effect June 2011
As later chapters will explain, there is still significant uncertainty about
relationship recognition between states, and it may be years before the federal government honors any same-sex partnerships. There are maddening inconsistencies regarding parentage and custody rights, daunting problems resulting from disparate tax treatment of same-sex couples, and terrible dilemmas for couples who are binational, who move across state lines, or who break up in a nonrecognition state. But the right to enter into a legal marriage—or at least some reasonable facsimile of it—is now available to each of us.
Marriage is no longer just a theoretical question. It’s now a personal one for each of us. That’s why you are free to ask—and obligated to ask—whether you and your partner should walk down the proverbial aisle. Wholly apart from what activists and lawyers have been fighting over for the past four decades, when we meet Mr. or Ms. Right and want to settle down, each of us is now free to ask whether we should simply cohabit as we used to do, without any formal legal relationship between us, or whether we should “make it legal.”
It’s taken the heroic legal and political efforts of thousands of your gay brothers and sisters to bring us to this transformative point in our history. It’s now up to you to answer this all important personal question for yourselves—and we hope this book will help.
To stay up to date on the progress of marriage equality, check the legal updates at www.nolo.com and the blogs at www.makingitlegal.net and www.queerjustice.com. l