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Family Law Newsletter- Same-Sex Marriage

Jan. 9, 2020

The majority of jurisdictions do not recognize a marriage between persons of the same gender. Many state statutes refer to marriage as a union between a male and a female. Some statutes do not specifically address same-sex unions, however courts have interpreted such statutes as not authorizing a legal marriage between two persons of the same gender. Therefore, such a union is not recognized in that state. There are also state statutes that ban marriage between same-sex couples. In these states, same-sex marriage is prohibited, marriages in other states that have same-sex marriage are not recognized, contractual rights between married couples of the same gender will not be enforced and divorce or other disputes related to marriage will not be addressed in court.

Civil Unions and Domestic Partnerships

While many states were passing legislation banning marriage between same-sex couples, Virginia's legislature passed a law protecting couples of the same gender. The protection is called a civil union, and gives same-sex couples the same rights and benefits as married couples; however, Virginia's civil union protection did not extend the right to marry to couples of the same gender. After Virginias' ruling, additional states followed suit. Accordingly, other jurisdictions passed laws recognizing domestic partnerships.

Domestic partnerships also give couples some of the rights enjoyed by opposite-sex married couples, however not all. Rights and protections differ between civil unions and domestic partnerships, these protections differ from state to state. The criteria a couple must meet in order to form a civil union or domestic partnership may also differ by jurisdiction. However, the most common criteria are that the individuals are eighteen years of age or older, both individuals are of the same gender and each individual is not a member of another civil union or domestic partnership. Even though more states are beginning to acknowledge same-sex unions, not all states will recognize a civil union or domestic partnership from another jurisdiction. In fact, the federal Defense of Marriage Act gives states the power not to recognize civil unions/domestic partnerships from other states.

Developments in the Law

In 2008, the California Supreme Court held that laws denying same-sex couples the right to marry were unconstitutional and therefore invalid. Denying same-sex couples the right to marriage was violating the equal protection clause of the state constitution. Based on this determination, the statute was changed to open the definition of "marriage" to both opposite-sex and same-sex couples. Prior to 2008, Massachusetts recognized same-sex marriage in 2003. Other jurisdictions do not statutorily allow same-sex marriages. However, Connecticut, New Jersey, and Vermont recognize civil unions; Washington recognizes domestic partnerships and Hawaii has reciprocal beneficiary registration, which gives some benefits to same-sex couples.

At the federal level, the United States Supreme Court has upheld marriage as a fundamental right provided for by the Constitution. The Supreme Court has also struck down state statutes that have tried to make sexual relationships between consenting same-sex partners criminal. However, the court has not yet extended the right to marriage between same-gender couples.

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