Location, Location, Location: Same-Sex Relationship Rights by State
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 advise their affected clients adequately.
Five jurisdictions (Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont) currently authorize civil marriage for same-sex partners, and the District of Columbia Council is poised to add the nation’s capital to that list. Last month, however, Maine voters repealed a marriage-equality statute that the Pine Tree State legislature and governor adopted in May.
Even though New York does not permit same-sex nuptials within its own borders, the Empire State presently recognizes the marriages of lesbian and gay pairs validly performed in other jurisdictions.
Another five states 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, 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 to same-sex couples): 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 (with the consent of the 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 Wisconsin attorney general has refused to defend the state’s new domestic-partnership law in court, saying that it creates a legal status “substantially similar” to traditional marriage.
The difference between Mini-DOMAs and Super-DOMAs is especially noteworthy with regard to their impact on same-sex couples. The Virginia Constitution, for example, states:
Only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.
More comprehensive language designed to limit the relationship options of lesbian and gays pairs would be difficult to imagine.
The Virginia provision is far more ambitious than, say, California’s now notorious Proposition 8 of 2008, which states: “Only marriage between a man and a woman is valid or recognized in California.” This language left in tact the comprehensive statutory system of domestic partnerships that grants virtually all of the rights and responsibilities of civil marriage to same-sex couples in the Golden State. Likewise, despite the passage of Measure 36 (“It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage”) in 2004, the Oregon Legislature three years later enacted full civil unions for gay and lesbian couples.
Accordingly, the objectives of Super-DOMAs are substantially greater than those of Mini-DOMAs such as Proposition 8 and Measure 36. While the latter speak just to marriage and are silent about relationship arrangements such as civil unions, domestic partnerships, and reciprocal benefits, the former aspire to insure that same-sex pairs can be nothing other than complete legal strangers to one another. In short, Mini-DOMAs preserve the word “marriage” exclusively for opposite-sex couples, but not necessarily the attributes of civil marriage. Whereas, the goal of Super-DOMAs is to restrict the word and all of its attributes to heterosexual pairs. Thus, lesbian and gay couples in California domestic partnerships or in Oregon civil unions inherit from each other under state intestacy law, may adopt or sue for custody of or visitation with minor children of the couple, and enjoy a plethora of other rights comparable to those of civil marriage, regardless of the constitutional Mini-DOMAs. Yet same-sex pairs in Super-DOMA jurisdictions like Virginia may not benefit from any such attributes of marriage.
Even constitutional statements less absolute than Virginia’s language have substantial bite. Although Michigan’s provision (known as Proposal 2) is more succinct (“To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose”), the Michigan Supreme Court nonetheless interpreted the words “or similar union for any purpose” to require the denial of health insurance benefits to the same-sex partners of state employees. National Pride at Work, Inc. v. Governor of Michigan (2008). The high court held that Proposal 2’s language was unambiguous and thus prevailed, despite the fact that Citizens for the Protection of Marriage, the Michigan interest group responsible for placing the amendment on the 2004 ballot and its primary supporter in the ensuing campaign, published and distributed a brochure explaining that the measure would not preclude public employers from offering health-insurance benefits to their employees’ domestic partners. The Michigan result 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 consequence, some public employees in Michigan may not even be able to provide health coverage to their children.
I have documented instances of other varieties of direct loss to gay and lesbian couples in the Wolverine State. The first involves housing rights. Oakland University is a public institution in the northern Detroit suburbs that provides employee housing near campus. Oakland faculty or administration members and their families can purchase homes in the designated area that have restrictive covenants limiting transfers of the properties to people affiliated with the school. Should the faculty member or administrator die, his or her spouse may continue to live in the house until the spouse’s death. A lesbian tenured professor and her partner made an offer on one such home and secured a mortgage to finance it. Then Oakland informed them that, because of Proposal 2, in the event of the faculty member’s death, the surviving partner would have to leave the home before the end of the calendar year.
In another instance, a graduate student at a Michigan public university who was a residence hall director asked whether her partner could move in with her. Even though opposite-sex couples cohabited in the units, the school’s vice president for student affairs determined that Proposal 2 prevented the lesbian pair from doing so.
A particularly interesting illustration of another Super-DOMA effect concerns the denial of inheritance rights. I interviewed a 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 20 years, the latter 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.
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 GP/Solo Division publishes several books on related issues, and Division members receive a special discount on such purchases. See: [put in hyperlinks for both these books: Estate Planning for Same-Sex Couples and Gay, Lesbian, and Transgender Clients: A Lawyer’s Guide.
© Copyright 2009, American Bar Association.