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Same Sex Marriage, Civil Unions, and Domestic Partnerships

Before the U.S. Supreme Court's 2015 decision in Obergefell v. Hodges extended the right for same-sex couples to marry, some states permitted same-sex marriage, while others offered legal recognition in the form of civil unions and domestic partnerships. Below is general information on same-sex marriage, civil unions, and domestic partnerships.

Same-Sex Marriage

Same-sex marriage refers to a legally recognized marriage between two spouses of the same gender. Since the Supreme Court's decision in Obergefell, same-sex spouses have the same rights and benefits as legally married opposite-sex couples, including tax relief, emergency medical decision-making power, access to domestic relations laws, spousal benefits (including workers' compensation), inheritance rights, and spousal testimonial privilege.

Defense of Marriage Act

In 2013, the U.S. Supreme Court found key provisions of the Defense of Marriage Act (DOMA) unconstitutional. This means married gay and lesbian couples living in states that allow same-sex marriage are entitled to the same federal benefits and protections extended to married heterosexual couples. The Court did not, at the time, invalidate state bans on same-sex marriage, but rather decided that the government must recognize state-sanctioned same-sex marriages.

Obergefell v. Hodges

In 2015, the U.S. Supreme Court ruled that state bans on same-sex marriage and the refusal to recognize same-sex marriages legally entered into in another state were both unconstitutional infringements upon the rights of due process and equal protection. As a result, this decision makes same-sex marriage available throughout the nation and requires that states acknowledge legal same-sex marriages from any state, providing the same rights and benefits as heterosexual couples.

Alternatives to Traditional Marriage

Prior to the Obergefell decision, several states expanded the legal rights available to spouses in same-sex relationships through civil unions and domestic partnerships rather than permitting same-sex marriage. Since Obergefell requires that same-sex marriage be permitted in all states, it is unclear whether these alternatives will continue to be relevant or necessary; however, they remain legally available and some couples continue to maintain a legal relationship through these forms.

Civil Unions

Civil unions provide legal recognition to the couples' relationship and provide legal rights to the partners similar to those accorded to spouses in marriages.

Six states adopted civil unions available to both same-sex and opposite-sex couples including:

  • Colorado
  • Delaware
  • Hawaii
  • Illinois
  • New Jersey
  • Rhode Island

However, Delaware and Rhode Island replaced their civil union provisions with same-sex marriage that took effect on July 1 and Aug. 1, 2013, respectively.

Civil unions were first legal in 1999 in the state of Vermont as a means to provide the same state benefits, civil rights, and protections of the law to same-sex couples as married couples. Civil unions were therefore often sought after by same-sex couples who lived in states that did not recognize same-sex marriage.

Civil union benefits vary among the handful of states that allow same-sex civil unions and may include benefits relating to title, tenure, wrongful death, loss of consortium, adoption, group health insurance, emergency care, property ownership, and tort actions under contracts.

Domestic Partnerships

Similar to civil unions, domestic partnerships are a form of relationship that gives limited state rights to both same-sex and opposite-sex couples who live together but wish to remain unmarried or whose marriage is prohibited by law. Unlike civil unions, however, which are only legal in a handful of states, domestic partnerships are offered at either the state or city level, such as in New York and San Francisco. In addition, couples in domestic partnerships may receive domestic partner benefits at companies or organizations - such as employment benefits -- depending on the state.

For example, two states (California and Oregon) have adopted broad domestic partnerships that grant nearly all state-level spousal rights to unmarried couples. Other states and D.C. provide limited domestic partnerships that provide some state-level spousal rights to unmarried couples, including same-sex couples.

States that recognize domestic partnerships are:

  • California
  • Oregon
  • Washington
  • Maine
  • Hawaii
  • District of Columbia
  • Nevada
  • Wisconsin

Consult an Experienced Family Law Attorney

Marriage laws are changing constantly. If you have a question about same-sex marriage, civil unions, or domestic partnership laws in your state, you may wish to contact a family law attorney for assistance. A good lawyer can advise you about the current state of the law and any special legal protections you may want to consider. Plus it's important to speak to a lawyer familiar with the laws in your jurisdiction. Most offer free consultations, so your first step should be to contact a family attorney who's experienced in same-sex issues.

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