Joanna L. Grossman

The State of the Same-Sex Union: Part Two in a Three-Part Series

By JOANNA L. GROSSMAN & EDWARD STEIN
Tuesday, July 21, 2009

As we described in Part One of this series, the battle over same-sex marriage in the United States has been hard-fought in legal, political, and social arenas. Proponents and opponents have scored both victories and losses, leading to the checkered current landscape, in which same-sex couples' rights can vary widely from state to state. The rights of same-sex couples to gain formal recognition of their relationship differ by state – in terms both of whether any recognition is available and, if it is, what kind of recognition.

Here, in Part Two, we describe in detail the states in which same-sex couples can obtain formal recognition from the state – whether in the name of "marriage" or some alternative status – and the states in which recognition is banned. We also explain why significant additional changes to the landscape are unlikely in the near future.

Formal Recognition of Same-Sex Relationships: A Sliding Scale of Rights

Through the combination of court rulings and legislative action, a sliding scale of relationship rights has developed – ranging from full marriage equality to a complete ban on formal recognition. (An excellent graphic representation of the current landscape is made available here by the National Gay and Lesbian Task Force.)

As of today, six states – Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, and Maine – have authorized full marriage rights for same-sex couples, though each has reached that endpoint by proceeding along a different path. (Three of these states have not yet started issuing marriage licenses, but will within the next several months.) Seven foreign countries also grant full marriage rights: The Netherlands, Belgium, Canada, Spain, South Africa, Norway, and Sweden.

As we discussed in Part One, in 2004, Massachusetts became the first state to permit the celebration of same-sex marriages and, for more than four years, was the only state to do so. When same-sex marriages first began to be celebrated there, state officials enforced a century-old marriage evasion law, which Joanna Grossman discussed in a previous column, restricting same-sex marriage to Massachusetts residents alone. (In general, states do not impose residency requirements for marriage, though they do for divorce.) That law withstood a legal challenge, but it was ultimately repealed by the Massachusetts legislature in 2007, thereby opening the door to the celebration of the marriages of same-sex couples from other jurisdictions.

The second state to grant full marriage rights was California, though, perhaps confusingly, it does not count towards the six states that currently provide marriage equality. As detailed in a previous column, the California Supreme Court ruled in May 2008, in In re Marriage Cases, that the state's ban on same-sex marriage violated California's state constitution. Though more than 14,000 same-sex couples had been married in California after that ruling, the right of same-sex marriage was stripped away by voters in the November 2008 election. Proposition 8, which amended the California constitution to ban same-sex marriage, was recently upheld by the California Supreme Court in Horton v. Strauss. Though the Court preserved the validity of the same-sex marriages that had already been contracted in the state, it upheld the ban going forward.

Connecticut's highest court invalidated that state's ban on same-sex marriage. The October 2008 ruling focused heavily on the importance of the name "marriage," since the state already offered a marriage-like form of recognition (civil union) for same-sex couples.

Iowa followed suit in April 2009, with a ruling that emphasized the Iowa way of life and equality for all "Iowans."

Then, in a somewhat unexpected New England cascade, the legislatures of Vermont, New Hampshire, and Maine all adopted same-sex marriage without a court ruling nudging them along. (The Vermont law and its unique history are discussed here.) Same-sex marriage licenses will begin to issue in each of those states over the next six months, although an attempt is underway to gather signatures to put marriage for same-sex couples on the ballot in Maine through a "People's Veto," a feature of the state constitution that allows citizens to gather signatures to try to overturn recently-enacted legislation. For this reason, the status of same-sex marriage in Maine will be in limbo for a while.

The Points on the Sliding Scale: Marriage, Civil Unions, Domestic Partnerships, Etc.

In these six states with full marriage rights, there are no state-level distinctions between same-sex and different-sex married couples. Marriage has simply been opened to include same-sex couples.

Because of the federal law known as DOMA (we will have more to say about this law in Part III), however, validly celebrated same-sex marriages will not be recognized for any federal law purpose such as tax status, immigration, Social Security, etc. (This state/federal split leads to sometimes odd conundrums such as the need to create "dummy" federal tax returns to include with state tax returns that permit joint-filing status for same-sex spouses.) But within the state in which the marriage was celebrated, a spouse is a spouse, regardless of sex.

One step away from full marriage equality on the sliding scale is the civil union – an alternative legal status that provides all of the benefits and obligations of marriage under a different name. Civil unions were invented in Vermont (which has since upgraded to full marriage equality) as an alternative legal status that would be identical to marriage in every respect other than name. Civil unions spread beyond Vermont – eventually being adopted in Connecticut, New Hampshire, and New Jersey, too. But because Connecticut and New Hampshire have also upgraded to marriage equality, civil unions are now confined to New Jersey. (The New Jersey ruling that led to the legislature's adoption of civil unions is discussed here.)

California offers a domestic partnership status to same-sex couples, which is very close to marriage, but not identical. Oregon and Washington also offer a domestic partnership status that is a near-equivalent to marriage, though not as close as California's. The District of Columbia offers domestic partnership with many of the same rights as marriage, although the rules of dissolution are not identical. Most recently, Nevada adopted a new domestic partnership status, but it is not identical to marriage. It offers many of the same rights and obligations, but it imposes a different set of rules regarding formation and dissolution of the partnership and, importantly, it exempts employers from providing spousal health insurance benefits for same-sex couples.

Further down on the sliding scale from civil unions and "robust" domestic partnerships are the handful of states that offer same-sex couples a legal status that provides a bundle of relationship rights, but falls far short of marriage. Colorado, Hawaii, and Maryland fall into this category.

And still further down on the scale are six states -- Alaska, Arizona, Illinois, Montana, Rhode Island, and New Mexico – that provide limited benefits to same-sex partners of state employees only.

Finally, many municipalities, including New York City, Boston, Philadelphia, and San Francisco, as well as smaller cities, have adopted ordinances to provide limited rights for same-sex couples who register for them. City employees tend to be the main – or, in some cases, only -- beneficiaries of these laws.

In New York City, for example, city employees with a registered domestic partner can obtain spousal health insurance benefits. In this same vein, President Obama recently issued a memorandum granting some very modest benefits to the same-sex partners of federal employees, excluding, notably, the right to obtain spousal health insurance benefits.

Anti-Same-Sex-Marriage States: Mini-DOMAs and Constitutional Amendments

In Part One of this series, we discussed how the marriage litigation in Hawaii triggered a backlash. During the three-and-a-half years between the Hawaii Supreme Court's remanding the case and the trial court's ruling that prohibitions on same-sex marriages were unconstitutional, fifteen states passed laws that effectively refused recognition in their state for valid marriages between two people of the same sex from other jurisdictions, even though not a single valid same-sex marriage had yet taken place anywhere in the United States.

Also, in that time period, the federal Defense of Marriage Act (DOMA) was enacted. It exempted states from having to recognize marriages of same-sex couples from other states and defined marriage, for purposes of federal law, as a union between one man and one woman.

Many states have taken the same approach that the legislature and voters of Hawaii did by amending their state constitutions to prohibit same-sex marriage. Twenty-nine states have "constitutionalized" a prohibition against same-sex marriage (Alabama, Alaska, Arizona, Arkansas, California, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wisconsin).

Moreover, nineteen of these states have passed broader amendments that prohibit not only same-sex marriages but also explicitly deny any recognition to other jurisdictions' same-sex marriages, civil unions, and other such relationships between people of the same sex (Alabama, Arkansas, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, and Wisconsin).

Whatever the future holds, the present polarization of attitudes toward relationships between people of the same sex has led to a legal patchwork across the nation of recognition and non-recognition for couples in same-sex relationships. A relationship that is recognized as a marriage or its equivalent in some states may not be recognized in others. Forty states have either a law or a constitutional amendment explicitly restricting marriage in that state to one man and one woman, and almost all of these also deny recognition to same-sex marriages from other jurisdictions.

The only states that do not have such provisions are the six states that have legalized same-sex marriage, plus New Jersey, New Mexico, New York, and Rhode Island. (An updated graphic representation of the current landscape for non-recognition is made available here by the group Freedom to Marry.)

Potential for Changes in the Landscape? Why the Status Quo Is Likely to Hold Steady for a While

Although same-sex marriage developments and setbacks have sometimes been unpredicted and even surprising, the current landscape is probably going to hold steady, in large part, for the near- and medium-term future. Laws legalizing marriage between same-sex couples can come about either through voluntary legislative enactment, a ruling by the state's highest court that an existing ban violates the state's constitution, or a ruling by a federal court finding that bans on same-sex marriage violate the federal constitution. As we explain in this section, there are a limited number of states in which either of these possibilities exist, or are likely to occur.

In the twenty-nine states that have enshrined their same-sex marriage bans in a constitution, state courts do not have the power to intercede. A ruling from the U.S. Supreme Court that same-sex marriage bans violate the U.S. Constitution would effectively invalidate all such bans, but such a ruling is not likely given the current composition of the Court. Constitutional amendments can only be overridden by a new constitutional provision, and such a new provision would be an unlikely development given the wide margin by which most of the amendments passed, and the unlikelihood that legislators and voters would have changed their views in such a relatively short period of time. Thus, those states will very likely continue to ban same-sex marriage for some time.

In five of the six states that currently provide, or will soon provide, full marriage rights, change is also unlikely. Connecticut, Iowa, and Massachusetts cannot eliminate same-sex marriage without amending their constitutions because the highest court in each of those states has ruled that banning same-sex marriage is unconstitutional. Given the cumbersome nature of the process and the political forces in each of those states, constitutional amendment is unlikely. In Vermont, New Hampshire, and Maine, the legislature could take away same-sex marriage in the same manner it was granted, but that seems unlikely given that the enactments were voluntary (i.e., not ordered by a court ruling) and very recent. In Vermont, the legislative support was strong enough to override a gubernatorial veto. However, as previously mentioned, a possible state ballot initiative could eliminate same-sex marriage in Maine before the first same-sex couple marries there.

There are thus thirty-five states in which the law of same-sex marriage is more or less fixed for the near future. Although fifteen states remain, significant movement is probably unlikely in most of them, as well, at least in the short run.

Let's consider briefly those remaining states:

  • In New York, Maryland, and Washington, the state's highest court has ruled that neither same-sex marriage, nor an alternative like the civil union, is constitutionally-required. Maryland and Washington have statutory bans on same-sex marriage, but these states have recently expanded their recognition for same-sex relationships. In New York, the governor supports same-sex marriage and legislative adoption is possible, though history suggests that New York's legislature often evades easy prediction.

  • In New Jersey, the state's highest court has ruled that civil unions are constitutionally sufficient. However, the state's civil union review commission has issued a report, which is discussed here, detailing the problems created by an alternative legal status for same-sex couples, so there has been some movement towards legislative adoption of full marriage rights in the state.
  • In Hawaii, the legislature is constitutionally empowered to ban same-sex marriage and did so, but it could change its mind.

  • Rhode Island and New Mexico are the only two states with no statute or court ruling relating to same-sex marriage rights. In those states, we could see either voluntary legislative adoption of same-sex marriage, or a court ruling ordering it as a matter of constitutional necessity.
  • In eight additional states -- Delaware, Illinois, Indiana, Minnesota, North Carolina, Pennsylvania, West Virginia, and Wyoming – there is a statutory ban on same-sex marriage, but no constitutional ban. Thus, it is theoretically possible in any of these states that the highest court could invalidate the existing ban on constitutional grounds. It is also possible that the state legislatures could reverse themselves, but, again, that is unlikely given how recently most of the bans were enacted.

If we had to make a prediction as to which state would be the next to legalize same-sex marriage, it would be one of the following: Maryland, Minnesota, New York, Rhode Island, or Washington. Beyond these states, change in the landscape seems unlikely to come soon.

Same-Sex Marriage Will Gain Support, But Progress May be Modest in the Near Future

In sum, although the developments in the same-sex marriage have been fast and furious at times, we are likely to see a slower pace in the coming years. Same-sex couples have earned important recognition rights in several states, but still face substantial obstacles in others.

Time, however, will work in favor of greater support for same-sex marriage, as we have seen a narrowing of the margin between those who oppose same-sex marriage and those who support it since it became legal in Massachusetts.


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

Edward Stein is Acting Dean, Professor of Law, and Director, Program in Family Law, Policy, and Bioethics at Cardozo Law School. His current research focuses on issues at the intersection of family law and sexual orientation, gender and the law.