Same-Sex Relationship Rights by State
Daniel R. Pinello is a professor of political science at John Jay College of Criminal Justice of the City University of New York. He can be contacted at firstname.lastname@example.org.
The number one rule in real estate—location, location, location—also applies to the relationship rights of same-sex partners in the United States. Where lesbian or gay couples live will determine what rights they have, and those rights vary greatly depending on the couples’ home states. Attorneys should understand the different legal regimes regarding same-sex couples to adequately advise their affected clients.
Six jurisdictions currently authorize civil marriage for same-sex partners: Connecticut, Iowa, Maine, Massachusetts, New Hampshire, and Vermont. Although the 2009 Maine marriage-equality statute may be subject to a “people’s veto” in November 2009, the right of gay and lesbian couples to marry in the other five states appears secure.
Even though they do not permit same-sex nuptials within their own borders, New York and the District of Columbia presently recognize the marriages of lesbian and gay pairs validly performed in other jurisdictions. However, the in-state legitimacy of such out-of-state ceremonies is pending before the New York Court of Appeals (the state court of last resort).
Another six jurisdictions have broad relationship-recognition laws (typically termed “civil unions” or “domestic partnerships”) that extend to same-sex couples all or nearly all of the rights and responsibilities given to married couples under state law: California, the District of Columbia, Nevada, New Jersey, Oregon, and Washington. Four other states provide limited relationship recognition: Colorado, Hawaii, Maryland, and Wisconsin.
New Mexico and Rhode Island do not regulate the recognition of same-sex relationships one way or another.
Despite some states recognizing same-sex marriages or relationships, the 1996 federal Defense of Marriage Act (DOMA) specifies that no state is required to honor same-sex marriages performed elsewhere. In addition, DOMA limits federal marital benefits to opposite-sex couples. Hence, married gay and lesbian pairs in, say, Massachusetts, may not file joint federal income-tax returns or receive Social Security survivor benefits.
Ten state constitutions have been amended to include “Mini-DOMAs” (limiting marriage to one man and one woman): Alaska, Arizona, California, Colorado, Mississippi, Missouri, Montana, Nevada, Oregon, and Tennessee. Another ten states have statutory (but not constitutionally based) Mini-DOMAs: Delaware, Hawaii, Illinois, Indiana, Minnesota, North Carolina, Pennsylvania, Washington, West Virginia, and Wyoming. The distinction between statutes and constitutional amendments is important, of course, because the former are easier to repeal than the latter.
Nineteen state constitutions have been amended to incorporate “Super-DOMAs” (denying all forms of relationship recognition, e.g., marriage, civil unions, domestic partnerships, to same-sex couples), so that lesbians and gays in relationships there may be only legal strangers to one another: Alabama, Arkansas, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, and Wisconsin. Alaska and Montana have statutory Super-DOMAs.
As these lists suggest, many states have passed both statutes and constitutional amendments limiting marriage to opposite-sex couples. Virginia, for instance, has both narrow and broad statutory marriage bans in addition to a constitutional amendment. Moreover, some state law may not be consistent. A 2006 amendment to the Wisconsin constitution, for example, says that “A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.” Yet in 2009, the Wisconsin legislature and governor adopted a domestic partner registry that extends to same-sex couples “certain dependent or survivor benefits for employee benefits, health and mental health and after-death decision making, probate matters, property matters, and motor vehicle titles.”
The impact of Super-DOMAs on same-sex couples is especially noteworthy. In May 2008, for example, the Michigan Supreme Court held that Proposal 2 (the Wolverine State’s 2004 constitutional amendment) prevents the gay and lesbian partners of public employees from receiving domestic-partner benefits. This can be particularly difficult for such partners if they do not have their own jobs that provide comparable health insurance coverage.
Super-DOMAs also have a great impact when same-sex partners are the biological parents of minor children being raised by them as Super-DOMAs typically eliminate the availability of second-parent adoptions for lesbian and gay couples. As a result, for example, some public employees in Michigan may not even be able to provide health coverage to their children.
Other varieties of direct loss to same-sex couples arising in Super-DOMA jurisdictions involve the denial of housing and inheritance rights. An example of the latter is particularly compelling. I interviewed a Michigan lesbian couple where one of the women is an heiress to a substantial family trust fund. She and her two brothers are the principal beneficiaries of the trust. Their grandmother, knowing the granddaughter to be a lesbian, designed the trust to provide that only the legal spouses of her grandchildren would receive trust payments. Accordingly, should the heiress predecease her partner of more than twenty years, her partner would receive nothing from the family trust. Indeed, the two grandsons and their wives approached the trustees and said that they were willing to include the lesbian partner as a beneficiary of the trust. But the trustees refused. Even if the lesbian couple were married in Massachusetts (where they have a vacation home), Proposal 2 would still deny inheritance rights to the heiress’s partner because the family trust is governed by Michigan law.
The information in this article should assist counsel in helping same-sex couples understand their rights under their states’ laws so they can make informed decisions about how their location deeply affects their relationships, families, and finances.
– Gay, Lesbian and Transgender Clients: A Lawyer’s Guide
(Book). 2007. General Practice, Solo, and Small Firm Division. PC # 5150317.
– To order online, visit www.ababooks.org.