Same-sex unions in the United States
Same-sex unions in the United States are legally recognized in some states and municipalities in various forms. These are same-sex marriage, civil unions, domestic partnerships, and reciprocal beneficiary relationships. Legally recognized same-sex unions can be formed in thirteen states and the District of Columbia.[1] None of these relationships, however, are recognized under federal law.
1May include recent laws or court decisions which have created legal recognition of same-sex relationships, but which have not entered into effect yet.
2Same-sex marriage laws in California are complicated; please see the article on same-sex marriage in California.
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[edit] Federal law
The legal issues surrounding same-sex marriage in the United States are complicated by the nation's federal system of government. Traditionally, the federal government did not attempt to establish its own definition of marriage; any marriage recognized by a state was recognized by the federal government, even if that marriage was not recognized by one or more other states (as was the case with interracial marriage before 1967 due to anti-miscegenation laws). With the passage of the Defense of Marriage Act in 1996, however, a marriage was explicitly defined as a union of one man and one woman for the purposes of federal law. (See 1 U.S.C. § 7.) Thus, no act or agency of the federal government currently recognizes same-sex marriage.
According to the federal General Accounting Office (GAO), more than 1,138 rights and protections are conferred to U.S. citizens upon marriage by the federal government; areas affected include Social Security benefits, veterans' benefits, health insurance, Medicaid, hospital visitation, estate taxes, retirement savings, pensions, family leave, and immigration law.
However, many aspects of marriage law affecting the day to day lives of inhabitants of the United States are determined by the states, not the federal government, and the Defense of Marriage Act does not prevent individual states from defining marriage as they see fit; indeed, most legal scholars believe that the federal government cannot impose a definition of marriage onto the laws of the various states by statute.[citation needed]
[edit] Same-sex marriage
Marriage is currently available to same-sex couples in six states and one district—Connecticut, Iowa, Massachusetts, Vermont, New Hampshire, New York, and the District of Columbia. Same-sex marriage is not recognized under federal law due to the Defense of Marriage Act (DOMA). The law also permits states to refuse to recognize unions "treated as a marriage" under the laws of another state, which many states have done. Same-sex marriages performed in other jurisdictions may be recognized to varying degrees in California, Maryland, New Mexico, and Rhode Island.
[edit] California
On May 15, 2008, the California Supreme Court ruled that domestic partnerships, although granting nearly the same rights as marriage, were not sufficient under the California constitution.[2] As a result, the court struck down Proposition 22 and the parts of the Marriage Act defining marriage as between one man and one woman. The court denied bids to reverse the decision and to stay the decision until after the November 4, 2008, election and clarified that the ruling took effect on June 16, 2008. The California legislature had previously passed legislation legalizing gay marriage, but it was vetoed by Governor Arnold Schwarzenegger stating that, depending on how the court ruled in In re Marriage Cases, the law was either unconstitutional or irrelevant.[3] On November 4, 2008, the ruling was annulled when voters passed Proposition 8. In the Strauss v. Horton case, the court upheld Proposition 8, but allowed existing same-sex marriages to stand (under the Grandfather clause principle). As a result, all out-of-state same-sex marriages are given the benefits of marriage under California law, although only those performed before November 5, 2008 are granted the designation "marriage".[4] United States district court Judge Vaughn Walker overturned Proposition 8 on August 4, 2010 in the case Perry v. Schwarzenegger.[5] Judge Walker issued an injunction against enforcing Proposition 8 and a stay to determine suspension of his ruling pending appeal.[6][7] Walker lifted the stay on August 12, 2010, thus allowing same-sex marriages to be performed as of August 18, 2010[8] The decision could potentially have an effect on all same-sex marriage bans nationwide. On August 16, 2010, the Ninth Circuit granted the motion to stay, ordered expedited briefing on the merits of the appeal, and directed the parties to brief the issue of why the appeal should not be dismissed for lack of standing.[9][10] On August 17, 2010, the same Ninth Circuit panel ordered expedited briefing on the Imperial County appeal.[11] The court also ordered both appeals calendared for oral argument during the week of December 6, 2010, in San Francisco.
[edit] Connecticut
On October 10, 2008 Connecticut became the third state in the U.S. to recognize same-sex marriage; the court ruling took effect November 12, 2008.
[edit] Iowa
In a unanimous decision released April 3, 2009, the Iowa Supreme Court ruled that the statute prohibiting same-sex marriage violated the equal protection clause of the state constitution.[12] The court ruling took effect April 29, 2009.
[edit] Massachusetts
The first state to legalize same-sex marriage was Massachusetts. In 2003 the Massachusetts Supreme Court ruled in favor of same-sex couples seeking marriage in a 4-3 decision. It required the legislature grant same-sex couples the rights afforded to married couples. In a separate opinion, the court rejected attempts to opt for civil unions instead, insisting that same-sex marriage was the only appropriate remedy. The ruling took effect on May 17, 2004. The 1913 law was repealed on July 31, 2008 (which bypassed the standard 90-day waiting period and made the law effective immediately). It had prevented out-of-state same-sex couples from getting married in Massachusetts if the marriage was unrecognized or illegal in their home state (originally it had prevented out-of-state interracial couples from getting married in Massachusetts for the same reason).[13][14] An attempt to reintroduce the 1913 law failed in August, 2008.[15]
[edit] Vermont
A same-sex marriage bill passed the Vermont legislature on April 2, 2009, but Governor Jim Douglas vetoed the bill on April 6.[16] However, on April 7, both houses of the legislature voted to override the governor's veto, making Vermont the first state in the U.S. to legalize same-sex marriage through legislative means.[17] The law has been effective since September 1, 2009.
[edit] Maine
A same-sex marriage bill passed the Maine legislature and was signed by the governor on May 6, 2009. The law was subsequently repealed by voters on November 3, 2009.[18]
[edit] New Hampshire
A same-sex marriage bill was signed into law by Governor Lynch on June 3, 2009. It became effective on January 1, 2010.
[edit] District of Columbia
Same-sex marriage in the District was legalized on March 3, 2010.
[edit] New York
After a 2006 New York Court of Appeals decision in which the Court upheld the constitutionality of New York State's opposite-sex definition of marriage, New York gay rights groups vowed to push for same-sex marriage in the legislature. During his 2006 gubernatorial campaign, Eliot Spitzer said that he would push to legalize same-sex marriage if elected,[19] and Spitzer proposed a same-sex marriage bill to the state legislature as governor on April 27, 2007. This legislation passed the New York State Assembly on June 19, 2007, but died in the Republican-controlled New York State Senate and was returned to the Assembly.[20] Same-sex marriage in New York was legalized on June 24, 2011.
[edit] Civil unions
Civil unions are a means of establishing kinship in a manner similar to that of marriage. The formalities for entering a civil union and the benefits and responsibilities of the parties tend to be similar or identical to those relating to marriage. Various names are used for similar relationships in other countries, but civil union was first applied in Vermont.
Some in the gay community do not see civil unions as a replacement for marriage. "Marriage in the United States is a civil union; but a civil union, as it has come to be called, is not marriage," said Evan Wolfson of Freedom to Marry.[21] "It is a proposed hypothetical legal mechanism, since it doesn’t exist in most places, to give some of the protections but also withhold something precious from gay people. There’s no good reason to do that." However, some opponents of same-sex marriage view the matter differently. Randy Thomasson, Executive Director of the Campaign for California Families, calls civil unions "homosexual marriage by another name" and contends that civil unions provide same-sex couples "all the rights of marriage available under state law".[22]
[edit] States with civil unions
[edit] Illinois
Openly gay representative Greg Harris introduced a bill to legalize civil unions for both same- and opposite-sex couples.[23] On March 21, 2007, the House Human Services Committee recommended the bill to be voted on by the full House by a 5-4 margin. On November 30, 2010, the House voted to approve the bill, and on December 1, 2010, the Senate did as well. The bill was signed by Governor Pat Quinn on January 31, 2011, and the law took effect on June 1, 2011.
[edit] New Jersey
After a ruling by the New Jersey Supreme Court, the state has provided for civil unions. The ruling, similar to the ruling in Vermont, required the state grant all the benefits given to opposite-sex couples to same-sex couples. Prior to the ruling, same-sex couples enjoyed a broad range of benefits under the state's domestic partnership law. The Civil Union Act took effect on February 19, 2007. Gay rights groups, however, have stated their dissatisfaction with the law and have promised to continue pushing for same-sex marriage.
[edit] Delaware
In April, 2011, the Delaware state legislature passed a bill recognizing civil unions with "all of the rights, benefits, and obligations of marriage under state law." Governor Jack Markell signed the bill, which would go into effect in January 2012.[24]
[edit] Hawaii
In 2011, the Hawaii state legislature passed a bill recognizing civil unions. Governor Neil Abercrombie signed the bill on February 24, 2011.
[edit] Rhode Island
In June 2011, the Rhode Island General Assembly passed a bill that would establish civil unions beginning on July 1.[25] On July 2, 2011, the bill was signed by Governor Lincoln Chafee.[1]
[edit] Domestic partnerships
Domestic partnerships are any of a variety of relationships recognized by employers or state or local government. The benefits of domestic relationships range from very limited rights to all the rights afforded to married people by the state, except where federal law makes providing benefits impossible. While most domestic partnership schemes grant those partners limited, enumerated rights, the California, Oregon, Washington, and Nevada schemes provide substantially the same rights as marriage and are therefore, essentially, civil unions.
[edit] Government domestic partnership registries
- For a full list of cities and counties see the following page: Cities and counties in the United States offering a domestic partnership registry
Some U.S. cities, including New York, San Francisco, and Toledo, offer domestic partnership registries. These registries afford registered partner specified rights otherwise reserved to married couples. The rights afforded include access to city services and rights created by city ordinances. Some private employers within such cities use the domestic partnership registries for the purpose of determining employee eligibility for domestic partner benefits.[26]
Six U.S. states and the District of Columbia have some form of domestic partnership. One of these, Hawaii, calls its scheme a "reciprocal beneficiary" registry. Domestic partnership benefits vary widely, ranging from enumerated lists of benefits similar to municipal domestic partnerships to benefits equal to marriage.
When state governments legalize same-sex unions in some form, municipalities and counties in these states may sometimes choose to sunset their own domestic partnership registries (as Cook County, Illinois did in May 2011), while others which enacted such local registries prior to the state's own registry may retain their registries for various reasons. Such registries continue to be separate from state-level registries and unions, and usually must be filed after the dissolution of a state-level union.
[edit] States offering domestic partnerships
[edit] California
A California domestic partnership is available to same-sex couples and to certain opposite-sex couples in which at least one party is at least 62 years of age. When it became law on September 22, 1999 the domestic partnership registry entitled partners to very few privileges such as hospital visitation rights. The legislature has since expanded the scope of California domestic partnerships to afford essentially the same rights and responsibilities common to marriage.[27] As such, it is now difficult to distinguish California domestic partnerships from civil unions offered in a handful of other states.
[edit] Colorado
Beginning July 1, 2009, unmarried couples have been able to enter a designated beneficiary agreement which will grant them limited rights, including making funeral arrangements for each other, receiving death benefits and inheriting property without a will.[28]
[edit] District of Columbia
The Washington, DC, domestic partnership law took effect on June 11, 1992, but was not funded by Congress until 2002. Both heterosexual and homosexual couples may register, and while benefits have increased over time, the benefits are specifically enumerated and are as extensive as those of marriage. There is also full, legal marriage for same sex couples since March 2010, when a bill to allow it took effect after the required 30 day review of congress expired.
[edit] Hawaii
Under Hawaii's reciprocal beneficiary law, any two adults barred from marrying may enjoy a very limited number of benefits granted to married couples. It has been in place since 1997, when Hawaii voters approved a constitutional amendment granting the legislature power to reserve marriage to opposite-sex couples in response to a trial court decision in favor of same-sex marriage. The legislature then approved the law in place of same-sex marriage.
[edit] Maine
Maine instituted domestic partnerships in an act that took effect on July 30, 2004. Under the law, same-sex couples are entitled to many of the state's benefits of marriage.
[edit] Maryland
On July 1, 2008, domestic partnerships became available in the state of Maryland. The new laws gave 11 marriage rights to domestic partners and added domestic partners to the list of family members that a person can add and remove from a deed to residential property without paying recordation and transfer taxes.
[edit] Nevada
Since October 1, 2009, same-sex couples and opposite-sex couples over 18 have been able to enter into domestic partnerships.[29]
[edit] New Jersey
The New Jersey domestic partnership statute provides "limited healthcare, inheritance, property rights and other rights and obligations" but "[does] not approach the broad array of rights and obligations afforded to married couples."[30] When domestic partnerships were initially available, beginning July 10, 2004, to same-sex couples and to opposite-sex couples. Since the inception of civil unions in New Jersey, they are available to same- and opposite-sex couples aged 62 and older.[30][31] Couples in a domestic partnership prior to the Civil Union Act, however, were not required to enter a civil union.
[edit] Oregon
In 2004, voters approved a state constitutional amendment banning same-sex marriage. Despite this defeat, gay rights groups have continued to push for civil unions in the state legislature. In trying to garner support for a civil unions bill, it was changed to a domestic partnership registry, although it still gave virtually all of the state level benefits that a marriage or civil union does.[32] In April 2007, the Oregon House passed the domestic partnership bill.
The bill was signed by the Governor on May 9, and made Oregon the ninth state in the United States to give some level of recognition to same-sex couples. Although the law was to take effect on January 1, 2008, it was delayed by court action and took effect on February 4, 2008.
[edit] Washington
After a 2006 court ruling rejecting same-sex marriage, gay rights groups have vowed to push for same-sex marriage in the long-term and domestic partnerships in the short-term.
In 2007, 2008 and 2009, domestic partnership bills over the years provided more rights, responsibilities and benefits to partners in domestic partnerships when they passed both the Washington state Senate and House. Governor Christine Gregoire signed all three bills into law while in office. An "all but marriage" expansion of the domestic partnership bill was signed by Gregoire on April 17, 2009. The law was approved 53% to 47% by Washington citizens in Referendum 71. Washington is the first U.S. state to approve a gay rights measure in a statewide vote.
[edit] Wisconsin
The Wisconsin legislature passed its 2009-2010 Budget on June 26, 2009. Governor Jim Doyle included language in the bill to allow for domestic partnership registrations for all unmarried persons. Wisconsin is the first state to offer such domestic partnership benefits despite having a constitutional ban on same-sex marriage and comparable alternatives, like civil unions. A legal analysis found on May 15, 2009, that adding such language to the budget despite the bans was likely legal,[33] and the state Supreme Court refused to hear an appeal to a lower court ruling affirming the law.[34] The law became effective on August 3, 2009.
[edit] Employment benefits
Some public- and private-sector U.S. employers provide health insurance or other spousal benefits to same-sex partners of employees, although the employee receiving benefits for his or her partner may have to pay income tax on the value of the benefit.
Partner benefits are more common among large employers, colleges and universities than at small businesses. The qualifications for and benefits of domestic partnership status vary from employer to employer; some recognize only same-sex or different-sex couples, while others recognize both.[26]
According to data from the Human Rights Campaign Foundation, the majority of Fortune 500 companies provided benefits to same-sex partners of employees as of June 2006.[35][36] Overall, 41 percent of HR professionals indicate that their organizations offered some form of domestic partner benefits (opposite-sex partners, same-sex partners or both).[37]
Because the U.S. federal government does not recognize same- or opposite-sex partners, tax benefits provided to opposite-sex spouses are generally not available to same-sex partners and spouses or opposite-sex partners.[38] While there are certain exceptions, generally under the Internal Revenue Code Section 152, the imputed value of the benefit will be considered taxable income. The proposed Tax Equity for Domestic Partner and Health Plan Beneficiaries Act would remove the disparity in tax treatment between such partners and married people, who are not taxed on benefits.
[edit] Same-sex unions under consideration
Same-sex couple recognition laws are being or have been considered in the following states:
[edit] Maryland
A case was heard before the Maryland Supreme Court seeking to legalize gay marriage in late 2006. On September 18, 2007, the Court of Appeals ruled against the plaintiffs in a 4-3 decision, leaving the statutory ban on same-sex marriage in place. Gay rights groups will likely seek legislation in the overwhelmingly Democratic legislature.
[edit] New Mexico
A domestic partnership bill passed the New Mexico House of Representatives and Governor Bill Richardson promised to sign the legislation should it pass the Senate. The legislation failed to advance.[when?]
[edit] Rhode Island
Gay rights organizations have for years been seeking to legalize same-sex marriage in Rhode Island, yet legislation has never been brought up for a vote. While the State Supreme Court is considering the legality of same-sex marriage in Rhode Island, gay rights groups are pushing for incremental gains in the legislature by earning individual rights for same-sex couples. While a civil union bill has been submitted to the legislature, gay rights groups are opposing it calling for no less than same-sex marriage. On February 20, 2007, Attorney General Patrick Lynch issued an opinion holding that same-sex marriages performed in Massachusetts would be recognized in Rhode Island.[39][40][41]
[edit] See also
- Civil union in the United States
- Domestic partnership in the United States
- Same-sex marriage in the United States
- LGBT rights in the United States
[edit] References
- ^ a b "Rhode Island Same Sex Civil Unions Bill Signed By Governor Lincoln Chafee". The Huffington Post. 2011-07-02. http://www.huffingtonpost.com/2011/07/02/rhode-island-same-sex-civil-unions_n_889303.html. Retrieved 2011-07-02.
- ^ "Text of the decision in In re Marriage Cases". Supreme Court of California. 2008-05-15. Archived from the original on 2008-06-03. http://web.archive.org/web/20080603070921/http://www.courtinfo.ca.gov/opinions/documents/S147999.PDF. Retrieved 2008-06-05.
- ^ "In re Marriage Cases, footnote 17, pages 29-30". Supreme Court of California. 2008-05-15. Archived from the original on 2008-06-03. http://web.archive.org/web/20080603070921/http://www.courtinfo.ca.gov/opinions/documents/S147999.PDF. Retrieved 2008-06-05.
- ^ http://www.courtinfo.ca.gov/opinions/archive/S168047.PDF -- For a review see: Thomas Kupka, Names and Designations in Law, in: The Journal Jurisprudence 6 (2010) 121-130.
- ^ "Ruling by United States District Court". The San Francisco Chronicle. http://www.sfgate.com/chronicle/acrobat/2010/08/04/Prop-8-Ruling-FINAL.pdf?tsp=1. Retrieved 4 August 2010.
- ^ Egelko, Bob; Bulwa, Demian (August 4, 2010). "Judge strikes down ban on same-sex marriage". San Francisco Chronicle. http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/08/04/MNQS1EOR3D.DTL&tsp=1. Retrieved August 4, 2010.
- ^ Keys, Matthew (August 4, 2010). "Federal Judge: Same Sex Marriage Ban Under Proposition 8 Violates Constitution". FOX40.com. http://www.fox40.com/news/headlines/ktxl-news-prop8verdict0804,0,598175.story. Retrieved August 4, 2010.
- ^ McKinley, Jesse (August 12, 2010). "Judge Sets End to Ban on Gay Marriage in California". New York Times. http://www.nytimes.com/2010/08/13/us/13prop.html?hp. Retrieved 12 August 2010.
- ^ Joel Rosenblatt and Edvard Pettersson (August 16, 2010). "California Gay Marriage Remains Banned During Appeal". Bloomberg Businessweek. http://www.businessweek.com/news/2010-08-16/california-gay-marriage-remains-banned-during-appeal.html. Retrieved August 16, 2010.
- ^ Ninth Circuit: "Order," August 16, 2010, accessed August 16, 2010
- ^ Ninth Circuit: "Order," August 17, 2010, accessed August 17, 2010
- ^ "Iowa Supreme Court upholds Hanson's ruling; marriage no longer limited to one man, one woman". Des Moines Register. 2009-04-03. http://www.desmoinesregister.com/article/20090403/NEWS/90403010/-1/LIFE04. Retrieved 2009-04-03.
- ^ http://www.pinknews.co.uk/news/articles/2005-8582.html
- ^ http://www.pinknews.co.uk/news/articles/2005-8377.html
- ^ http://www.pinknews.co.uk/news/articles/2005-8728.html
- ^ Gram, Dave (2009-04-06). "Vermont Gov. Douglas vetoes gay marriage bill". Boston Globe. http://www.boston.com/news/local/vermont/articles/2009/04/06/senate_to_take_up_gay_marriage_bill/. Retrieved 2009-04-07.[dead link]
- ^ Gram, Dave (2009-04-07). "Vermont legalizes gay marriage with veto override". Associated Press. http://www.google.com/hostednews/ap/article/ALeqM5hesb4aHbI1j_7LkIVzStq6u_hqbgD97DNOIO2. Retrieved 2009-04-07.
- ^ Susan M. Cover (4 November 2009). "Mainers vote down gay marriage law". Portland Press Herald. http://pressherald.mainetoday.com/story.php?id=293976&ac=PHnws. Retrieved 4 November 2009. "The measure is repealed in a close vote, 53-47 percent"[dead link]
- ^ Hakim, Danny (2006-10-06). "Spitzer Vows to Push for Gay Marriage". The New York Times. http://www.nytimes.com/2006/10/07/nyregion/07gays.html?ex=1317873600&en=39318db372a95934&ei=5088&partner=rssnyt&emc=rss. Retrieved 2008-05-29.
- ^ "Assembly Bill 8590". http://assembly.state.ny.us/leg/?bn=A08590.
- ^ Interview with Evan Wolfson, David Shankbone, September 30, 2007
- ^ "Bush stance on gay unions irks conservatives". http://www.msnbc.msn.com/id/6338458/.
- ^ "HB1826". http://www.ilga.gov/legislation/BillStatus.asp?DocTypeID=HB&DocNum=1826&GAID=9&SessionID=51&LegID=30661.
- ^ "DELAWARE: Civil Unions Pass House!". http://joemygod.blogspot.com/2011/04/delaware-civil-unions-debate-begins.html.
- ^ MacDougall, Ian (June 29, 2011). "RI Senate passes civil unions bill". Associated Press. Greenwich Time. http://www.greenwichtime.com/news/article/RI-Senate-passes-civil-unions-bill-1445924.php. Retrieved June 30, 2011.
- ^ a b "Human Rights Campaign - Defining Domestic Partners for Benefits Purposes". http://www.hrc.org/issues/4826.htm. Retrieved 2008-03-06.
- ^ "Text of the decision in In re Marriage Cases". Supreme Court of California accessdate=2008-06-05. 2008-05-15. http://www.courtinfo.ca.gov/opinions/documents/S147999.PDF.
- ^ "Ritter signs bill that will help gay couples". Associated Press (The Denver Post). 2009-04-09. http://www.denverpost.com/news/ci_12109357. Retrieved 2009-04-10.
- ^ House overrides governor's veto of domestic partners bill
- ^ a b Rabner, Stuart (2007-02-17). "Formal Opinion". Attorney General (New Jersey). http://www.nj.gov/oag/newsreleases07/ag-formal-opinion-2.16.07.pdf. Retrieved 2007-07-24.
- ^ "Civil Unions for Same-sex Couples in New Jersey". lambdalegal.org (Lambda Legal). 2007. http://data.lambdalegal.org/pdf/772.pdf. Retrieved 2007-07-31.
- ^ "HB 2007" (PDF). http://www.leg.state.or.us/07reg/measpdf/hb2000.dir/hb2007.en.pdf. Retrieved 2008-05-29.
- ^ Memo says Wisconsin domestic partnership plan likely legal
- ^ "Wisconsin Supreme Court Rejects Case Seeking to Strip Away Domestic Partnership Protections" (press release), Fair Wisconsin, Nov. 4, 2009.
- ^ Human Rights Campaign Foundation - State of the Workplace for Gay, Lesbian, Bisexual and Transgender Americans, 2005-2006
- ^ "Human Rights Campaign - GLBT Equality at the Fortune 500". http://www.hrc.org/issues/fortune500.htm. Retrieved 2008-03-09.
- ^ "Employees Undervalue Benefits, SHRM 2007 Survey Finds". http://www.shrm.org/rewards/library_published/benefits/nonIC/CMS_022074.asp. Retrieved 2008-03-09.
- ^ Human Rights Campaign - What the Defense of Marriage Act Does
- ^ "Attorney General's opinion letter". http://www.glad.org/News_Room/RIAttorneyGeneral_Statement.pdf.
- ^ Zezima, Katie (February 22, 2007). "Rhode Island Steps Toward Recognizing Same-Sex Marriage". The New York Times. http://www.nytimes.com/2007/02/22/us/22rhode.html. Retrieved May 23, 2010.
- ^ "GLAD press release regarding AG opinion". http://www.glad.org/News_Room/press137-02-21-07.html.
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