Same-sex couples represent a constituency that has successfully lobbied state governments for recognition, protection and privileges under the law. However, legal recognition of committed partnership has been neither uniform nor universal for same-sex couples. The majority of states prevent government agencies from bestowing legal privileges associated with opposite-sex marriage or domestic partnership upon same-sex partnerships of any kind. A small number of states compromise by granting same-sex couples legal status but call the union a civil union rather than a marriage and limit its provisions of entitlement. An even smaller number of states equate the couplings of same-sex partners and opposite-sex partners. Marriage, civil unions and domestic partnerships represent three modes of legal association through which same-sex partners acquire recognition, rights and responsibilities.
At the state level, marriage between same-sex partners provides the same rights and responsibilities as marriage between opposite-sex partners. Both are contractual relationships dedicated to supporting family units, governed by licensure and regulated by state laws. Only Massachusetts and Connecticut give marriage licenses to same-sex couples. State law governing same-sex marriage continually shifts toward accommodating a host of new social arrangements, cultural practices and political norms expressed by citizens. At the federal level, the government stabilized marriage law in 1996 by introducing the Defense of Marriage Act.
Defense of Marriage Act
The Defense of Marriage Act (DOMA) defines marriage as a legal union of one man and one woman as husband and wife, prohibits recognition of same-sex marriages by federal agencies and ensures individual states’ right to determine marriage law at the state level. Many states followed suit and adopted legislation or amended their constitution to prevent marriage between two people of the same sex. Connecticut, Massachusetts, New Jersey, New Mexico, New York and Rhode Island lack laws that either define marriage as between one man and one woman or prevent same-sex marriages.
DOMA prohibits same-sex partners legally married under state law from receiving benefits of marriage deriving from federal laws. Same-sex couples are likely to feel the effects of the act’s denial of these benefits in relation to federal tax laws, veterans’ rights, retirement plans, Medicare benefits, Social Security benefits and immigration. Therefore, same-sex partners may not, for example, file joint tax returns as married or derive any of the benefits and protections married couples receive under federal tax law. DOMA is codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C.
In Massachusetts, same-sex resident-couples have been able to apply for licenses since 2004. In 2008, the state struck down the residency requirement, allowing nonresidents to marry.
Both partners must be age 18 or older. Minors who are at least 16 may marry if at least one parent consents at the time of filing. Minors younger than 16 must have a probate or district court judge’s permission as well as parental consent. If either partner has been previously bound by a legal contract of marriage, domestic partnership or civil union, termination of the previous contract must be final before the state will grant a new marriage license. Massachusetts prevents people related by close ties of blood or marriage from marrying one another.
How to apply
Same-sex partners who wish to marry must file an application for a license or a Notice of Intention of Marriage in person at a county clerk’s office. Both people must present legal picture identifications and state the following:
- full name
- place and date of birth
- full name of parents (including middle and maiden names)
- residential address
- number of previous marriages, civil unions or state-created domestic partnerships and the way the last legal partnership ended (death, dissolution or divorce)
- knowledge of any relation by blood or marriage
Both applicants must swear that this information is true and affirm that no legal impediment to their marriage exists.
The clerk will forward the application to the registry of vital records and statistics. Applicants must wait three days before returning to the clerk’s office to pick up their marriage license. From a license’s issuance date, the couple has 60 days to get married in any county within the state.
In the 2008 case Kerrigan v. Commissioner of Public Health, Connecticut’s Supreme Court ruled state statutes governing marriage and civil unions unconstitutional. The Court decided that the state statutory prohibition barring same-sex marriage violates due process and equal protection principles of the state constitution because it discriminates on the basis of sexual orientation and subsequently creates two ”separate but equal” categories of legal marriage. When Connecticut passed its civil unions bill in 2005, representatives from the state House attached an amendment defining marriage as limited to a man and a woman. The Court’s recent ruling overrides those measures and establishes a single legal category of marriage.
Partners filing for marriage licensure must be at least age 18. People younger than 18 may apply for a license with either notarized parental consent or written permission from a probate judge if parents do not live in the U.S. Any minor younger than 16 must get a probate judge’s written consent. Connecticut’s statutory rules prohibit marriages between close kin, relations defined not merely by blood but also by affinity. The state has no residency requirement. Each partner must prove that a prior marriage ended in divorce or death.
Disclaimer on Issues of Residence and Divorce
Connecticut and Massachusetts appeal to out-of-state same-sex couples as possible venues of marriage because neither state has a residence requirement. However, issues of non-resident marriage and divorce in Connecticut and Massachusetts are complicated by two factors: (1) federal and state defense of marriage (DOMA) initiatives preventing other states from recognizing Connecticut or Massachusetts marriages under the full faith and credit clause of the U.S. Constitution and (2) a minimum residence requirement of 12 months in Massachusetts or Connecticut prior to filing for dissolution of marriage.
Most states’ defense of marriage laws explicitly forbid recognition of any marriage that is not between a man and a woman. Consequently, even if Massachusetts or Connecticut bestows a marriage license upon a non-resident same-sex couple, the state in which the couple resides may not recognize their marriage, and by extension, will not issue a divorce. The laws of some states also penalize couples for marrying contrary to the laws of their home state by imposing prison sentences and/or fines. For example, Article 13, Section 13 of Wisconsin’s Constitution says that residents who contract a marriage prohibited by Wisconsin across state lines can be punished by $10,000 fine, nine-month prison sentence or both. It is not certain, however, that such laws, which were passed for other purposes, such as preventing underage marriage, would be enforced against gay couples.
Getting married in Massachusetts or Connecticut is much easier than getting divorced. In order to get divorced, at least one marriage partner must maintain in-state residency for at least one year. In order to file for divorce, at least one member of a same-sex marriage must have established residence in a state that recognizes same-sex marriages, and therefore same-sex divorces. If neither partner lives in a state that recognizes same-sex marriage, the couple cannot file for divorce.
Current Status of Same-Sex Marriage in California
California marriage law is grounded in legislative acts made by the legislative branch of the state’s government. In 2000, voters passed Proposition 22, which defined marriage as a union between a man and a woman. The state Assembly challenged Proposition 22 by passing a bill approving same-sex marriages in 2005. Governor Schwarzenegger vetoed the 2005 bill. However, in 2008, the California Supreme Court ruled Proposition 22 unconstitutional under the state constitution and cleared the way for same-sex marriages. Marriage licenses were awarded to same-sex couples beginning in June 2008. In the November 2008 elections, voters approved Proposition 8, which withdraws same-sex marriage rights and amends the California state constitution to define marriage as between one man and one woman. The validity of Proposition 8 currently is being challenged in the courts. Pending the result of that litigation, California is not currently issuing marriage licenses to same-sex couples.
California extends domestic partner benefits to same-sex couples. Unlike married partners, domestic partners cannot file joint state income taxes and state employees cannot acquire long-term care benefits. Also, domestic partner benefits only protect the couple inside California although non-residents may register their partnerships in California. Outside the state’s boundaries, recognition of same-sex marriage and domestic partnership entitlements cannot be assumed. Lastly, domestic partnerships may deny couples the symbolic social and cultural meanings associated with ceremonially announcing their union to the world. Domestic partnerships exist as part of public record, but do not require couples hold any kind of ceremony publicly announcing their commitment before a Justice of the Peace the way married couples must.
States Recognizing Same-sex Marriages Performed Elsewhere
New York is one of five states without a statute or a constitutional amendment prohibiting same-sex marriage. However, a state Supreme Court ruling from 2006 prohibits same-sex marriage in the State of New York. Only the legislature will be able legalize same-sex marriages. While same sex marriage licenses are not granted by the State of New York, in May 2008 Governor Patterson directed state agencies (including insurance and health care departments) to recognize legal marriages of same sex couples performed in territories where same-sex marriage is legal. Legally married gay couples are entitled to the same benefits as heterosexual married couples in the state (including tax breaks, inheritance rights, etc.).
Rhode Island is one of five states without a statute or a constitutional amendment prohibiting same-sex marriage. Its laws do not prohibit Rhode Island same-sex couples from legally marrying in another state. A Massachusetts Superior Court confirmed this fact in 2006. Rhode Island recognizes same-sex marriages performed elsewhere.