Legal Developments in Marriage Law for Same-Sex Couples

By Shannon Minter and Christopher Stoll

Lisa Pond died at Jackson Memorial Hospital in 2007 after suffering a brain aneurysm while on a family vacation with Janice Langbehn, her female partner of 17 years, and their three children, who had traveled to Florida from Washington for a cruise. As Lisa lay dying, a hospital social worker refused to let Janice into Lisa’s room. Janice remembers the worker saying that Florida was “an anti-gay state.” In September of this year, a Miami, Florida, federal district court dismissed Janice’s case. The court held that Florida law did not require a hospital to permit a same-sex partner to visit, even when presented with a valid medical power of attorney document. This is the reality faced by most same-sex couples in the United States, and it contrasts dramatically with how married different-sex couples are treated virtually everywhere.

State laws affecting the legal status of same-sex couples vary widely, ranging from full marriage rights in some states to a complete denial of any recognition in most others.

Legal planning is always advisable for couples, but for same-sex couples it is truly vital, given the tremendous variation in state laws. Attorneys for these couples need to be aware of state laws on marriage, as well as a range of issues related to parenting, legal and financial decision making, and estate planning. This article focuses on the current state of marriage law for same-sex couples across the country. There have been significant developments in the past year, and practitioners should be aware that there are a wide range of laws in all 50 states that affect how same-sex couples and lesbian, gay, bisexual, and transgender individuals are treated.

A Patchwork of Conflicting State Laws
State laws affecting the legal status of same-sex couples vary dramatically, ranging from full marriage rights at one end of the spectrum to a complete denial of any recognition at the other.

Five states permit same-sex couples to marry. Eight states and the District of Columbia permit same-sex couples to register as partners in civil unions or domestic partnerships that provide all or most of the substantive rights and obligations of marriage under state law.

New York and the District of Columbia do not permit same-sex couples to marry but will honor marriages of same-sex couples from other jurisdictions. Most states, however, deny same-sex couples any official recognition or protection for their relationships. Forty states expressly bar same-sex couples from marriage, including 29 that do so through state constitutional amendments.

As a result of that patchwork of conflicting state laws, the mere act of crossing a state line can have significant legal consequences for same-sex couples traveling or moving to another state. Even within the space of a day’s travel across state lines, the same two individuals may be legally married in one state, demoted to domestic partners in another, and treated as complete legal strangers in a third. Attorneys must be aware that families are at legal risk and help them do all that they can to protect themselves given current law, including understanding the risks of interstate travel to states that do not respect these familial relationships.

States That Have Permitted Same-Sex Couples to Marry
Connecticut. Since 2005, Connecticut has allowed same-sex couples to enter into civil unions. In October 2008 the Connecticut Supreme Court held that civil unions fail to provide full equality for lesbians and gay men and ordered the state to permit same-sex couples to marry. Pursuant to that decision, same-sex couples have been legally marrying in Connecticut since November 12, 2008. Beginning October 1, 2010, Connecticut will phase out civil unions and convert existing civil unions to marriage. The Connecticut legislature has also determined that couples that have entered into civil unions or comprehensive domestic partnerships in other states will be treated as married in Connecticut.

Iowa. Same-sex couples have been allowed to marry in Iowa since April 27, 2009, shortly after the Iowa Supreme Court unanimously struck down Iowa’s statutory ban on marriage for same-sex couples. The court held that Iowa’s constitutional guarantee of equal protection requires that same-sex couples must have full access to marriage, and that civil unions and domestic partnerships were inadequate to provide full equality under the state constitution.

Maine. Maine has permitted same-sex couples to enter into domestic partnerships with limited rights since 2004. In May 2009, Maine amended its law to permit same-sex couples to marry, making Maine the second state (following Vermont) to enact a marriage equality law without a court mandate and the first to pass a law including same-sex couples in marriage without passing through the way station of civil unions or comprehensive domestic partnerships. Although Maine’s marriage equality law was scheduled to take effect in September 2009, opponents gathered enough signatures to subject the new law to a voter referendum. The Maine initiative rejecting the new law passed on November 3, 2009. As a result, same-sex couples are not permitted to marry in Maine.

Massachusetts. Same-sex couples have been able to marry in Massachusetts since May 2004, after the Supreme Judicial Court became the first in the country to strike down a state ban on marriage for same-sex couples. In a decision noted around the world, the court held that denying marriage and its protections to same-sex couples violated the equality and liberty guarantees of the Massachusetts Constitution. That court was also the first to hold that civil unions would not provide full equality. Initially, Massachusetts did not allow same-sex couples from other states to marry in Massachusetts if their home states prohibited such marriages. Massachusetts removed that restriction on July 31, 2008. Since then, same-sex couples from anywhere in the country have been free to marry in Massachusetts regardless of where they live, as is also true for Connecticut, Iowa, and Vermont.

New Hampshire. New Hampshire has permitted same-sex couples to enter into civil unions since 2008 and has allowed same-sex couples to marry since January 1, 2010. When the New Hampshire Legislature first passed a marriage equality bill in 2008, Governor John Lynch vetoed the bill, but he promised to sign it if it were amended to clarify that religious institutions would retain full freedom to determine which marriages they wished to solemnize and recognize. The legislature added that clarification, and Governor Lynch signed the marriage bill into law on June 3, 2009. Until the new law took effect, same-sex couples in New Hampshire could continue to enter into civil unions. After January 2010, however, New Hampshire stopped performing civil unions, and existing civil unions will be automatically converted into marriages on January 1, 2011. In the interim, couples may convert their civil unions into marriages by marrying or by submitting an application to the county clerk to designate their civil unions as marriages. New Hampshire also recognizes civil unions and comprehensive domestic partnerships from other states as marriages.

Vermont. In 2000, Vermont became the first state to adopt a civil union law, after the Vermont Supreme Court held that the state must provide same-sex couples with substantive protections, but stopped short of requiring full marriage equality. On April 7, 2009, Vermont became the first state to permit same-sex couples to marry without a court mandate when the Vermont legislature overrode Governor Jim Douglas’s veto to enact a marriage equality bill. Same-sex couples have been able to legally marry in Vermont since September 1, 2009. Vermont will continue to recognize civil unions that were entered before September 1, but same-sex couples may no longer enter into new civil unions now that marriage is available. Vermont will continue to recognize civil unions and comprehensive state domestic partnerships such as those from California, Washington, and Nevada and provide those couples with all of the protections and responsibilities of marriage under Vermont state law.

California. In addition to the five states where same-sex couples can either legally marry or will be able to soon, California permitted same-sex couples to marry during a five-month period in 2008, following a decision by the California Supreme Court.

In May 2008, the California Supreme Court became the second state court to strike down a state marriage ban and the first to hold that same-sex couples have a fundamental right to marry and that laws that discriminate based on sexual orientation are subject to strict scrutiny under the state constitution’s Equal Protection Clause. As a result of that decision, more than 18,000 same-sex couples from California and other jurisdictions were legally married in California. In the November 2008 election, however, a slim majority of California voters passed Proposition 8, which partially overrode the court’s decision by amending the California Constitution to prohibit same-sex couples from marrying.

The California Supreme Court subsequently upheld Proposition 8 against a state constitutional challenge but also construed Proposition 8 very narrowly. The court held that, apart from the designation “marriage,” the state must continue to provide full equality for same-sex couples. The court also held that Proposition 8 could not be applied retroactively and thus that the state must continue to recognize for all purposes the marriages of same-sex couples that married in California between June 16, 2008, and November 4, 2008. The court did not specifically address the marriages of same-sex couples that married outside the state before the effective date of Proposition 8; however, that issue has now been clarified by the legislature. On October 12, 2009, Governor Arnold Schwarzenegger signed the Marriage Recognition and Family Protection Act. This statute provides that same-sex couples married before the passage of Proposition 8 are recognized as married spouses in California, regardless of whether they married in California or in another state or nation.

Although same-sex couples can no longer enter into new marriages in California, the state continues to provide domestic partnerships that include most of the rights and responsibilities of marriage. Notably, California’s domestic partnership law permits a person who is legally married to enter into a domestic partnership so long as it with his or her spouse. As a practical matter, family law experts encourage married same-sex couples in California to additionally register as domestic partners in order to obtain maximum protection in other jurisdictions because some states will recognize an out-of-state domestic partnership but not a marriage between two people of the same sex.

In May 2009, former solicitor general Ted Olson and David Boies, who were opposing counsel in Bush v. Gore, joined forces to challenge Proposition 8 in federal district court, arguing that Proposition 8 wrongfully bars same-sex couples from the fundamental right to marry and violates the Equal Protection guarantee of the United States Constitution. The named defendants are Governor Schwarzenegger and California attorney general Jerry Brown. However, Brown agreed that Proposition 8 is unconstitutional and has declined to defend it, and Governor Schwarzenegger has taken no position on the measure’s constitutionality.

The proponents of Proposition 8 have intervened in the lawsuit to argue that the measure is constitutional. The case is scheduled for trial in January 2010. If the case is successful, it will be the first time a court has struck down a state constitutional amendment barring same-sex couples from marriage.

Recognition of Out-of-State Marriages
Although they do not currently allow same-sex couples to marry, New York and the District of Columbia recognize marriages between same-sex couples that were validly entered in other jurisdictions. The District of Columbia began recognizing marriages between same-sex couples from other jurisdictions on July 6, 2009, after the D.C. Council passed a bill requiring the District to extend such recognition. In New York, numerous courts have held that the state must recognize marriages of same-sex couples validly entered into in other jurisdictions. Based on these decisions, Governor David Paterson has directed all New York agencies to revise their policies to recognize marriages between same-sex couples legally married in other states and countries.

In addition to jurisdictions that recognize civil marriages between same-sex couples, many other states, including Colorado, Hawaii, Maryland, Nevada, New Jersey, Oregon, Washington, and Wisconsin, provide for civil unions, domestic partnerships, or other forms of relationship recognition for same-sex couples.

The rights, benefits, and duties available to families under these laws vary widely, from laws that provide substantially all the benefits of marriage to laws that provide only a very limited set of rights.

Although laws creating civil unions and comprehensive domestic partnerships advance the equal treatment of same-sex couples, official reports commissioned by the legislatures of Vermont and New Jersey have concluded that they fall short of full equality in multiple respects. First, parties to a civil union or domestic partnership are denied hundreds of rights, benefits, and responsibilities that the federal government provides to married couples. Second, marriage is universally understood and respected by third parties and government actors, but civil unions and domestic partnerships are not. Third, while marriage is generally understood as portable, it is uncertain whether other states will honor civil unions or domestic partnerships. And finally, many view these restrictions as creating a second-class status that does provide the same dignity, security, and clarity as marriage and does not carry the same personal or social meaning. In the words of one Vermont attorney, “no one writes love songs about civil unions.”

The Defense of Marriage Act
Since 1996 the Defense of Marriage Act (DOMA) has prohibited the federal government from recognizing marriages between same-sex couples for any purpose, even if such marriages are valid and recognized under state law.

DOMA provides that states are not required to recognize marriages between same-sex couples that were legally performed in other states. DOMA also provides that legally married same-sex couples are denied access to a vast number of federal benefits that are available to all other married couples. These include access to health insurance, pensions, and other spousal benefits provided to federal employees; Social Security survivor benefits; and the many federal income and estate tax benefits that are available to other married couples.

In early 2009 several same-sex couples and individuals who were legally married in Massachusetts filed a lawsuit in federal district court in Boston challenging the constitutionality of DOMA’s denial of a variety of federal benefits to married same-sex couples. The lawsuit has already succeeded in prompting one change in federal policy. On May 27, 2009, the U.S. State Department announced that it will allow people who have changed their name after marrying someone of the same sex to get a passport reflecting their new married name.

The U.S. Department of Justice has moved to dismiss the remainder of the Massachusetts suit, arguing that First Circuit precedent establishes that DOMA’s withholding of federal benefits survives constitutional scrutiny under the rational basis test. The Justice Department has stated that it believes it has a duty to defend DOMA, despite President Obama’s opposition to the measure on policy grounds. The Department of Justice has abandoned many of the arguments advanced in prior briefs by the Bush administration, including the argument that DOMA is justified based on considerations relating to procreation or the welfare of children. In its motion to dismiss, the Justice Department specifically rejected those arguments and recognized that “many leading medical, psychological, and social welfare organizations have issued policies opposing restrictions on lesbian and gay parenting upon concluding, based on numerous studies, that children raised by lesbian and gay parents are as likely to be well-adjusted as children raised by heterosexual parents.”

In July 2009 Martha Coakley, attorney general of the Commonwealth of Massachusetts, filed a separate challenge to DOMA. The Commonwealth’s lawsuit argues that in addition to denying equal treatment to same-sex married couples, DOMA represents an unprecedented and unlawful intrusion by the federal government into the traditional and historical power of the states to regulate marital status.

In September 2009 a bill to repeal DOMA, the Respect for Marriage Act, was introduced in the House of Representatives.

More Change Ahead
The state of the law on marriage equality for same-sex couples is clearly in flux, as courts and legislatures continue to grapple with the issue. Attorneys who practice in this area are well advised to stay on top of these and other legal developments in order to effectively counsel their clients. There is a great deal at stake for families related to financial, health care, and emotional security for couples and their children, not only in changes to marriage laws across the country, but also in being represented by attorneys who understand how to use existing law to protect families as much as possible.

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