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Developments in Same-Sex Marriage Law

In the traditional definition, a family consists of two or more adults living together and raising and caring for children. But this otherwise inclusive definition has historically never included gay and lesbian couples, leading to a passionate same-sex marriage debate that has raged for many decades. As time has passed, more and more states and jurisdictions have given same sex couples the same rights and responsibilities as traditional married couples, while other states have explicitly banned same-sex marriage.

States that Currently Allow Same Sex Marriage

With the same sex marriage debate occurring throughout the nation, it is no wonder that there are a few states that allow same sex marriages. As of January 2010, there are five states and one federal district within the US that recognize and allow same sex marriages. Massachusetts, Connecticut, Vermont, New Hampshire, Iowa and the District of Columbia all have laws that allow same sex marriages.

In 2003, Massachusetts made national news when it became the first state in the nation to legalize same sex marriages when the state's Supreme Court ruled that the denial of marriage rights to same sex couples was a violation of the equal protection clause of the Massachusetts Constitution. Despite repeated attempts to amend the state's constitution to explicitly define marriage as between a man and a woman in the years following this landmark decision, the state of the law remains the same.

California was the second state to allow same-sex marriages, but voters in the state rescinded that right through a ballot initiative on November 4, 2008 (see below).

In November 2008, Connecticut became the third state in the union to legalize the marriage of gay and lesbian couples. In Connecticut, same sex couples enjoy the same rights and responsibilities as opposite-sex married couples.

In early April, 2009, Iowa's Supreme Court held that the state's law defining marriage as solely between a man and a woman violated the state's constitution. The first same sex marriages were performed in Iowa later than month.

In September 2009, Vermont became the fourth state in the nation to legalize same sex marriages and was the first state to do so through legislation rather than judicial opinion. Even though the state's governor vetoed the bill, the state legislature rallied enough votes to override the veto and the bill became law.

New Hampshire recently passed legislation that will made same sex marriages legal starting on January 1, 2010. This makes New Hampshire the fifth state in the Union to recognize same sex marriage.

Lastly, the District of Columbia Council overwhelmingly passed legislation, by an 11-2 vote, in the early part of December, 2009 that recognized same sex marriages as a legal union. This law has come under heavy criticism, both from the people within the District, as well as the state of Maryland, which is currently attempting to pass a law that would ban same sex marriage. However, the law in the District of Columbia has already withstood one legal challenge, with a judge ruling that a the District can ban any vote to ban same sex marriage because it would be a violation of human rights.

Same Sex Marriage in California

California has been the site of some of the most rigorous fighting in the same sex marriage debate. In June of 2008, California made national headlines when the California Supreme Court ruled in In re Marriage Cases that the state's ban on same sex marriage violated the state's constitutional provisions regarding equal protection. This ruling effectively made California the largest hot spot for gay and lesbian marriages in the nation for a short time.

However, it wasn't long after this decision came down that a ballot measure, known as Proposition 8, made it onto the ballot for the November 2008 election. Prop 8 was written to amend the state constitution to explicitly define a marriage as a legally binding union between a man and a woman. Prop 8 passed on November 4, 2008 by a slim margin, effectively banning same sex marriages in California.

A vigorous legal battle ensued and a lawsuit was filed by Prop 8 opponents that challenged the validity of the proposition on procedural grounds. Eventually, the California Supreme Court announced that Prop 8 was valid and the state's constitution was amended, meaning that no new same sex marriages would be performed in California. However, the question remained what would happen to the thousands of same sex couples that were married between the June 2008 court decision and the November 2008 proposition. The California Supreme Court ruled that these marriages were legal when performed, meaning that they still carried legal weight and are valid.

On January 10, 2010, the nation's first trial on same sex couples' right to marry started in a federal courtroom in San Francisco, California. Even before the lawsuit challenging Prop 8 began, there was much controversy, over everything from campaign funding to whether or not the trial should be broadcast online. The United States Supreme Court eventually required the Prop 8 trial videos to remain sealed. In 2010, Judge Vaughn Walker ruled that Prop 8 was unconstitutional on the grounds that it violated federal due process and equal protection clauses. It was soon appealed to the nation's highest court.

In 2013, the U.S. Supreme Court ruled in United States v. Windsor that private parties lacked standing to defend a state constitutional amendment where the state itself refused to defend it. Therefore, the case was dismissed for lack of standing and Prop 8 remains invalid in California (which means same-sex couples may get married in the state).

Same Sex Marriage in New York

Near the end of 2009, the New York State Senate faced a vote on a bill that would allow gay and lesbian couples to legally wed inside the state. The senate decisively rejected the bill in a 38-to-24 vote. Many of the senators who voted to reject the bill reasoned that, given the state of the economy, the time was not right to fundamentally change the state's laws regarding same sex marriage.

Legal Relationships Similar to Marriages in Other States

Civil Unions in New Jersey

In the early part of 2010, the New Jersey legislature rejected a bill that would allow same sex couples to be legally wed in the state. However, same sex couples in New Jersey can currently enter civil unions which are the legal equivalent of marriage. These unions carry many of the same rights and responsibilities as a marriage including:

  • Family law rights like divorce, child custody, alimony, spousal support, division of property, annulments
  • Tort rights typically reserved for spouses such as wrongful death and loss of consortium
  • Rights typically found in hospitals such as durable power of attorney and visitation
  • State joint tax filing status, and
  • The right to get the property of a deceased partner that dies intestate (without a will)

However, there are certain restrictions that arise with civil unions that are not present with a legal marriage. For instance, the rights and responsibilities that come with a civil union only apply to the couple as long as they remain within the state that granted their civil union. In addition, these civil unions do not enjoy the benefits that a marriage enjoys under federal law, such as social security, immigration and tax benefits. Lastly, there is no law that says that states other than the state that granted the civil union have to give the above listed benefits.

An example will illustrate this point. Take for instance Jon and Frank. This couple lives in a civil union in New Jersey, but they take a vacation outside of the state and Jon gets injured during a skiing accident and must be hospitalized. There are no laws regarding civil unions in the state where Jon is being treated, and therefore Frank has no visitation rights or durable power of attorney and cannot make any decisions regarding Jon's treatment if he is incapacitated.

Domestic Partnerships in Maine, Oregon, the District of Columbia (D.C.), Washington, California, New Jersey, and Nevada

Each state that recognizes domestic partnerships defines them differently. Even though Prop 8 negated future same sex marriages in California, domestic partnerships still exist and are allowed. In California, Oregon and Washington, domestic partnerships are the equivalent to marriage in terms of the scope of rights given. In D.C. and Maine, although domestic partnerships are allowed, the rights and responsibilities are scaled back and more limited and typically only deal with end-of-life issues and disability.

For example, in Maine, a state that repealed its same sex marriage law in November, 2009, a domestic partner will be appointed the guardian of a disabled partner before a family member,and will also take property as a spouse if their partner dies without a will.

New Jersey effectively negated the use of domestic partnership when it allowed civil unions in January 2008, but the domestic partnerships that existed before this date are still valid and enforceable.

Lastly, Nevada has recently joined the ranks of states that allow domestic partnerships. Although Nevada passed a constitutional amendment in 2002 that banned same sex marriage, the state legislature, in 2009, overrode a veto from the governor on a domestic partnership bill. The bill became effective on October 1, 2009.

Reciprocal Benefits in Hawaii

Although 70% of the people in Hawaii reaffirmed their belief that a marriage should be between a man and a woman in 1999, the state does still have a system of reciprocal benefits in place for same sex couples. Any two residents of the state can register as reciprocal beneficiaries so long as both are over 18, not married, cannot legally marry each other and sign a consensual reciprocal beneficiaries agreement. These couples get some rights such as hospital visitation, the right to the tort action for wrongful death, and inheritance and property rights.

Same Sex Legal Relationships Outside of the Granting State

One major question that is still left undecided is whether a same sex couple that enters into some sort of legal relationship in their home state will be legally recognized in other states that do not have similar laws. The United States Constitution requires each state to give authority and weight to the laws of every other state under the "full faith and credit" clause, which would lead one to think that a same sex marriage in Connecticut would still be valid in Texas. The federal Defense of Marriage Act (DOMA), passed in 1996, undercut this policy in situations regarding same sex legal relationships.

But even though parts of DOMA were ruled unconstitutional by the U.S. Supreme Court in 2013, specifically those provisions granting federal benefits to married same-sex couples, their ruling did not invoke the full faith and credit clause. In other words, states that don't allow same-sex marriage are not required to recognize same-sex marriages from states that do allow the practice. 

Here are a few websites that contain additional information regarding the status of same sex marriages around the nation:

For your reference, here is a chronological history of many same-sex marriage judicial decisions:

Baker v. Nelson (Minnesota, 1971) - A gay couple argued that because the language in the Minnesota statute did not include language of sex-specific marriage, this showed the intent of the legislature to legalize same sex marriage. The couple also included arguments that denying them the opportunity to marry constituted a violation of due process and equal protection under the Constitution. The court ruled that it could not rule for the couple because there was no legal weight in the case law supporting their position.

Jones v. Hallahan (Kentucky, 1973) - A lesbian couple went to court after they were denied a marriage license. The couple argued that this denial was a violation of the constitutional rights to marry, associate and freely exercise their religion. The court decided against the couple without addressing their constitutional arguments and simply stated that the union of two women is not a marriage.

Singer v. Hara (Washington, 1974) - A gay couple argued that by denying them the right to marry, the state was violating their equal protection rights. The court decided against the couple, ruling that the Equal Protection Amendment was put in place to address the differences in legal treatment of men and women on account of sex.

Adams v. Howerton (Colorado, 1975) - A gay couple, one American and one Australian, went to court to challenge the Boar of Immigration Appeals on their refusal to allow the Australian man from obtaining American citizenship. The couple had been married in Colorado after being issued a marriage license and had then applied for the Australian man's citizenship, citing that he was the spouse of an American. The court ruled against the couple, first deciding that the word "spouse" meant someone of the opposite sex. The court also reasoned that the 1965 amendments to the Immigration Act expressly barred people with "sexual deviations," or homosexuals, from entry into America.

Thorton v. Timmers (Ohio, 1975) - A lesbian couple that was denied a marriage licensed sued. The court denied their request and ruled that the legislature intended that married people be of opposite sex.

De Santo v. Barnsley (Pennsylvania, 1984) - The parties to this lawsuit were a same sex couple that had split up, with one suing the other for divorce, claiming that the couple had entered into a common-law marriage, or a marriage by default after living together, acting as a married couple for a certain length of time. The court hearing the divorce case ruled that one could not sue the other for divorce. The court reasoned that if a common-law marriage were to include same sex couples, then the legislature would have to make that change.

Matter of Estate of Cooper (New York, 1990) - When Cooper died, his will directed a bulk of his estate be left to a former lover, who was not Cooper's lover at his death. The current lover sued, arguing that New York's inheritance laws should apply to him as if he were married to Cooper at his death. The court disagreed, holding that persons of same sex have no right to enter into a legal marriage.

Dean v. District of Columbia (Washington, D.C., 1995) - A gay couple sued the District of Columbia for refusing to allow them the right to marry. The appeal court ruled against the couple, deciding that D.C. can refuse to grant marriage licenses to gay couples.

Baehr v. Miike ( Hawaii, 1999) - Baehr argued that Hawaii's marriage rules were discriminatory against same sex couples. This case sparked a national same sex marriage debate regarding whether other states would have to recognize same sex marriages from Hawaii. However, this case was dismissed because the Hawaii legislature passed laws banning same sex marriages before the court could give its decision.

Baker v. State ( Vermont, 1999) - A same sex couple sued, arguing that the refusal to issue them a marriage license violated the Vermont Constitution. The court ruled in favor of the couple, issuing an opinion that the state's constitution required the government to extend same sex couples the same rights and responsibilities as those that entered into traditional marriages. Vermont passed its Civil Union law in 2000 in response to this judicial decision.

Goodridge v. Department of Public Health ( Massachusetts, 2003) - The Massachusetts Supreme Court ruled that a state law banning same sex marriage was unconstitutional and ordered the legislature to rectify the problem. In 2004, the court ruled that offering civil unions instead of civil marriages to same sex couples did not meet the requirements set forth in the original order by the court.

In re Marriage Cases (California, 2008) - The California Supreme Court, in a decision that shocked much of the county, ruled that laws restricting marriage to be between a man and a woman violated the state constitution and could not be used to bar same sex marriages.

Kerrigan v. Commissioner of Public Health (Connecticut, 2008) - The Supreme Court of Connecticut ruled that laws that allowed opposite sex couples to marry but only allowed same sex couples to enter into civil unions was discrimination. The court held that same sex couples could not be denied the right to marry.

In Re Marriage Cases ( California, 2009) - In response to the passage of Proposition 8, challenges sued claiming that the amendment to the state's constitution was not procedurally proper. However, the court ruled on May 26 th that the amendment was proper. However, the court also ruled that Proposition 8 was not retroactive; therefore, any marriages performed before its passage are still valid and enforceable.

Varnum v. Brien (Iowa, 2009) - The Iowa Supreme Court held that an Iowa statute restricting marriage to a male and a female violated the equal protection clause in the state's constitution.  The court ordered the restriction removed from the statute, and directed the state to interpret and apply the remaining provisions in a way that will afford "gay and lesbian people full access to the institution of civil marriage."

Perry v. Brown (U.S. 9th Circuit Court of Appeals, 2010) - Judge Vaughn Walker ruled that Prop 8 violates both the Equal Protection Clause of the 14th Amendment and the "full faith and credit" clause of Article IV. This case was appealed to the U.S. Supreme Court.

Hollingsworth v. Perry (U.S. Supreme Court, 2013) - The nation's highest court dismissed the appeal on the grounds that the sponsors of Prop 8 have no standing to challenge the Circuit Court's ruling. Therefore, the lower court's decision in Perry holds.

United States v. Windsor (U.S. Supreme Court, 2013) - This challenge to the federal Defense of Marriage Act (DOMA) was brought as a tax refund suit  by an individual who had a legal same-sex marriage under New York law, but who was denied a federal refund on estate taxes after their spouse passed away. The Court found DOMA unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.

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