by Attorney Emily Doskow

The latest news on same-sex marriage, domestic partnerships, and civil unions.

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, lesbians and gay men 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 Massachusetts, California, and Connecticut

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.

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. As of June 16, 2008, same-sex couples may marry in California.

And in October, 2008, the Connecticut Supreme Court likewise ruled that the state's civil union law discriminates on the basis of sexual orientation and is 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. The state started issuing marriage licenses on October 28, 2008.

Marriage-Like Relationships in Other States

Civil Unions in Vermont, Connecticut, New Hampshire, and New Jersey

Four states now offer relationship recognition in the form of civil unions -- the legal equivalent of marriage in those states. In Vermont, Connecticut, New Hampshire, and New Jersey, same-sex couples can enter into civil unions that 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 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.

It's unclear whether Connecticut will keep its civil union law after the Supreme Court decision holding that the law is unconstitutional. There's a possibility the Supreme Court ruling will be mooted by a vote to amend the state Constitution in November, and that the civil union law will be all that's left. If that doesn't happen and the Supreme Court decision remains intact, then it's likely that civil unions will no longer be available.

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

Domestic partnership is another form of relationship recognition for same-sex couples, but what it means differs from state to state. In Oregon and Washington, domestic partnership is the legal equivalent of marriage. In Maine and D.C., the rights provided are more limited. In Maine, for example, most of the domestic partnership rules are related to disability and end-of-life issues. For example, partners take precedence over other family members to act as a guardian if one partner becomes disabled and have the right to inherit from one another without a will. But most other marital rights are not included.

Domestic Partnerships Still Exist in California and New Jersey

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

In California, the decision to provide full marriage equality did not eliminate the domestic partnership law there. Registered domestic partners in California retain the same rights and obligations as legally married spouses under state law, including community property rights and the right to receive support from one's partner after a separation. Couples who do not wish to marry can still register as domestic partners, and opposite-sex couples in which one partner is 62 or older can also register as domestic partners in California.