Developments in Same-Sex Marriage Law

The Defense of Marriage Act (DOMA), the federal law on marriages defines marriage as a contract between a man and a woman. As such it does not include same sex marriages but allows the states to decide whether or not to legally recognize a same sex marriage that is recognized in another state.

State Law

As the debate over same sex marriages continues to range, some states provide certain types of protection to same sex partners. Presently the District of Columbia, Iowa, New Hampshire, Vermont, Connecticut and Massachusetts allow and recognize same sex marriages.

In 2003 Massachusetts become the first state in the country to legalize same sex marriages. The Massachusetts Supreme Court held that denying a same sex couple the right to get married violates the equal protection clause of the state constitution. There have been repeated attempts to explicitly define marriage as a union between a man and a woman but the law has essentially remained the same.

The next state to allow same sex marriages was California but in 2008, the residents of California voted to change the law. As a result same sex marriages are no longer allowed in California.

In 2008 Connecticut became the third state to allow same sex marriages. This affords the same benefits and rights to same sex couples as it does to heterosexual couples.

In 2009 Iowa joined the states that permitted same sex unions when the Iowa Supreme Court held in Varnum v. O’Brien that prohibition of same sex marriage amounted to unconstitutional discrimination based on sexual orientation.

In 2009 Vermont passed a legislation to legalize same sex marriages becoming the first state to pass a legislation legalizing same sex marriages. Until then, the other states had done it though judicial decisions.

In 2009 the District of Columbia passed a legislation recognizing same sex marriages as a legal union. There was a lot of opposition to this legislation from some residents of the district as well as from the State of Maryland which was in the process of passing a law banning same sex marriages. Despite the opposition, the legislation was passed with an overwhelming majority.

In New Hampshire same sex marriage was legal starting January 1, 2010.


In 2008 the California Supreme Court held that the ban on same sex marriages violates the equal protection clause of the state constitution. This resulted in many same sex couples from across the nation temporarily moving to California to get married. However the victory for the advocates of same sex marriages in California was short lived.

In November 2008, the voters in California voted to ban same sex marriages in California. The vote, part of a ballot measure known as the Proposition 8 was passed by a slender margin.

This result in many lawsuit filed by the supporters and opponents of same sex marriages. Some supporters of same sex marriages filed a lawsuit challenging the validity of Proposition 8 on procedural grounds. The state Supreme Court held that it was valid and the constitution was amended. As a result same sex marriages could not performed in California after November 2008. But the court had to decide about the legal status of the same sex marriages that took place in California from the time of the Supreme Court judgment and the passing of Proposition 8. The court held that these marriages are still legal as they were legal when they were performed.

There were a lot of bitter arguments about the Proposition 8. There was enough controversy surrounding the Proposition 8 that the United States Supreme Court had to step in and ban online videos of the Proposition 8 trial.

New York

In 2009 the New York Senate rejected a bill seeking to allow same sex couples to get married in the state. The reasoning given was that as the economy was in a bad shape, it is not a good time to change the laws on same sex marriage.

Legal Relationships

New Jersey Civil Unions

Although New Jersey has rejected a bill seeking to legalize same sex marriages in the state, same sex couples in the state can legally enter into civil unions. Civil unions provide same sex couples with the same benefits and protections under state law as married couples including:

• Rights under state family law including the right to seek alimony, child support, property rights and other rights available to married couples when they divorce or separate
• Right to sue for wrongful death, loss of consortium and other tort rights usually associated with spouses
• Right to consent to medical treatment on behalf of the other partner
• Filing joint state tax returns
• Property rights under state intestacy laws

There is however certain restriction that is applicable to civil union partners that generally do not apply to married couples. For example, the rights and responsibilities will be applicable only when they are within the state in which their civil union was formed and recognized. Civil union partners do not have rights under federal law such as social security, tax and immigration benefits. States are not required to provide these benefits either.

Here’s an example to help you understand better. Tom and Peter live in a civil union in New Jersey. While on a holiday in another state with no laws on civil unions, Peter injures himself in an auto accident and is hospitalized. So while Peter was in the hospital, Tom had no visitation rights and no rights to take medical decisions on behalf of Peter.

Domestic Partnerships

Domestic partnerships are similar to civil unions. It is a form of relationship between same or opposite sex couples who live together but want to remain unmarried or whose marriage is prohibited by law. Many states, counties, towns and cities recognize domestic partnerships and a domestic partner is entitled to many of the benefits including employment benefits. States that recognize domestic partnerships include Nevada, New Jersey, California, Washington, Oregon, Maine and DC.

In Washington, Oregon and California, domestic partners have the same scope of rights as married spouses. In DC and Maine, the rights are limited and generally limited to issues of disability and death.

In Maine for example where same sex marriage laws were repealed in 2009, when it comes to appointing a guardian for a disabled individual in a domestic partnership, the domestic partner will have preference over other family members. The state intestacy laws also protect the property rights of a domestic partner.

The use of domestic partnerships has been negated in New Jersey after it legalized civil unions. However domestic partnership in New Jersey prior to the legalization of civil unions is valid and enforceable even today.

The most recent state to allow domestic partnerships is Nevada. In 2002 Nevada banned same sex marriages but in 2009 passed a bill allowing domestic partnership despite a veto from the governor.

Reciprocal Benefits in Hawaii

Although in 1999 almost 70% of the voters in Hawaii voted that a marriage should be a union between a man and women, there is a system in Hawaii that provides reciprocal benefits for same sex couples. Any two unmarried individual who are residents of the state and cannot be legally married to each other can register as reciprocal beneficiaries if they have a consensual reciprocal beneficiary’s agreement in place. Such couples get hospital visitation rights, property rights, inheritance rights and tort rights for wrongful death.

Will a legal relation entered into by a same sex couple in one state be recognized in another?

This question is still undecided. States are required by the full faith and credit clause of the US Constitution to give full authority and weight to laws of other states. Using this logic, one would think that a same sex marriage that is legal in Connecticut would be valid in Kansas. However it is not so. The Defense of Marriage Act or DOMA is a federal law passed in 1996 that undercuts this logic.

The DOMA conflicts with the full faith and credit clause but the conflict is yet to be addressed by the Supreme Court. The supports and opponents of same sex marriage are eagerly waiting for the Supreme Court to decide on the conflict once and for all.

Please click the following links for more information about the legal status of same sex marriages:

• Freedom to Marry
• Marriage Equality USA
• Yes on 8 Protect Marriage
• National Center for Lesbian Rights

Here are some landmark same sex marriage court cases in a chronological order:

Baker v. Nelson – The “Nelson” in Baker v. Nelson was Gerald Nelson, the clerk of the Hennepin County District Court who had denied Baker and McConnell a marriage license; “Baker and McConnell sued Nelson on the ground that denying them a marriage license is unconstitutional. The Minnesota Supreme Court in Baker v. Nelson affirmed the denial of Jack Baker’s and Mike McConnell’s application for a marriage license.

Jones v. Hallahan – In Jones v. Hallahan, the Kentucky Court of Appeals similarly rejected an attempt by two women to obtain a marriage license. The court rejected all constitutional arguments in a rather brief opinion and, like the Minnesota court, relied on a textual, common usage interpretation of the Kentucky marriage statute. [In substance, the relationship proposed by the appellants does not authorize the issuance of a marriage license because what they propose is not marriage,] the court declared.

Singer v. Hara – Singer v. Hara was initiated on April 27, 1972 on behalf of two men, John L. Singer and Paul Barwick, who unsuccessfully attempted on September 20, 1971 to have the King County Auditor, Lloyd Hara, issue them a marriage license. The case occurred during a period of active discussion of same sex marriage in Washington and the nation. The court held that “the state’s denial of a marriage license” to same sex appellants is required by the state law and permitted by both state and federal constitutions

Adams v. Howerton – Richard Adams, a U.S. citizen, filed a visa petition for his Australian partner, Tony Sullivan. The Immigration and Naturalization Service denied the petition citing that spouse meant a person of the opposite sex. The court of appeals upheld the INS decision, ruling that a gay man could not qualify as the “spouse” of a U.S. citizen and therefore Sullivan was ineligible to immigrate to the United States. Because Congress acted to exclude homosexuals from immigrating, the court concluded, it could not have been the intention of Congress to give homosexual spouses preferential immigration treatment. In addition to denying lawful immigrant status to Sullivan, the INS sought to deport him, and the courts later denied him relief from deportation.

Thorton v. Timmers – The court upheld the denial of a marriage license to a lesbian couple on the grounds that the legislature intended that marriage should be between a man and a woman.

De Santo v. Barnsley – A same sex couple filed a divorce lawsuit claiming that by living together and acting as a married couple for some time, they had entered into a marriage by default of into a common law marriage. The court held that they could not file a divorce petition as common law marriages do not include same sex marriages.

Matter of Estate of Cooper – Cooper willed a major part of is estate to a former lover who wasn’t his lover at the time of his death. Cooper’s lover at the time of his death claimed that the state’s inheritance laws should be applied to him as if he and Cooper were married at the time of his death. The court did not agree and held that same sex couples could not enter into a legal marriage.

Dean v. District of Columbia – The court upheld the right of the District of Columbia to refuse marriage licenses to same sex couples. The court held that the legitimate interest in promoting religious morality sufficed to justify the ban.

Baehr v. Miike Nina Baehr filed a lawsuit against the state of Hawaii claiming that she and her same sex partner were illegal discriminated against by the state when it refused to issue a marriage license. The Hawaii Supreme Court ruled in her favor and held that the ban on same sex marriages in the state amounted to discrimination. Under the state’s Equal Rights Amendment, the state can support such a ban only of there is a compelling state interest. While the court refrained from directly declaring the ban illegal, it made its stand clear. The Hawaii Supreme Court remanded the case back to the lower court to determine if there as any compelling state interest to support such a ban.

Baker v. State – In Baker v. State, the Vermont Supreme Court held that the state constitution requires that same-sex couples be afforded the opportunity to receive the same benefits, protections, and security that married couples receive. That decision represents a milestone in the movement to secure equal rights for lesbians, gays, bisexuals, and transgendered people and will have great legal significance in the years to come.

Goodridge v. Department of Public Health – By a razor-thin margin, the Supreme Judicial Court of Massachusetts ruled that “the right to marry means little if it does not include the right to marry the person of one’s choice.” The lead opinion in Goodridge explained that the “Massachusetts constitution affirms the dignity of all individuals” and “forbids the creation of second-class citizens.

In re Marriage Cases (California, 2008) – The Supreme Court held that laws that restrict marriage to between members of the opposite sex violate the state constitution and cannot be used to prevent same sex marriages.

Kerrigan v. Commissioner of Public Health – The Connecticut Supreme Court held that laws that allow opposite sex couples to get married but allow same couples to only enter into a civil union was discriminatory and that same sex couples cannot be denied the right to marry.

In Re Marriage Cases ( California, 2009) – After the Proposition 8 was passed banning same sex marriages in California, many lawsuit were filed challenging the procedural validity of Proposition 8. The Court held that it was procedural valid but it was not retroactive and so same sex marriage performed before Proposition 8 was passed continue to remain valid.

Varnum v. Brien – A unanimous Iowa Supreme Court struck down a statutory same-sex marriage ban as unconstitutional.

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