Gay Marriage: A Changing Legal Landscape

Marriage

There are five countries that support same-sex marriages: The Netherlands (2001), Belgium (2003), Spain (2005), Canada (2005), and South Africa (2006). In November 2008, the High Court in Nepal published a decision that directs its government to enact new laws and amend all existing discriminatory laws so that all citizens can exercise equal rights.

In the United States, four states currently recognize same-sex marriage: Vermont and Iowa in 2009, Connecticut in 2008, and Massachusetts in 2003. In three of these states, same-sex marriages were validated by decisions of the respective state's Supreme Court, finding it unconstitutional not to extend the right of marriage to all couples. Recently, in Vermont, the support for granting marriage equality came as a result of the Legislature's enactment of SB 115 over the veto of that state's governor.

Although recognition represents a victory in many ways, marriages entered into in Massachusetts, Connecticut, Iowa and Vermont only grant state level rights and responsibilities but do not apply to federal rights and responsibilities. In addition, getting married in any one of these states (and even in one of the above-referenced countries) does not guarantee the rights of marriage in other states; in fact, most states will not recognize same-sex marriages entered into in other states.

The laws and procedures surrounding marriage do not differ significantly between these states; currently in all four states, both residents and non-residents can marry. However, getting a divorce is more complicated. There are residency requirements. In order to divorce in any one of these states, at least one of the parties must establish residency for at least six months prior to filing.

Civil Unions

Civil unions provide all of the rights and responsibilities of marriage under state law without giving the title of “marriage” to the union/partnership. Up until recently, three states granted civil unions: Vermont, New Hampshire, and New Jersey. Now, Vermont recognizes same-sex marriages. Like states that recognize same-sex marriage, states that grant civil unions only confer the rights and responsibilities under state law, no federal rights follow.

Domestic Partnerships

Domestic partnership is a title given to state laws that confer some to all of the rights and responsibilities of marriage to those couples who qualify and register as such. The rights and protections conferred vary from state to state. Five states (Oregon, Washington, California, Maine, and Hawaii) and the District of Columbia have Domestic Partnership laws. Oregon enacted its Domestic Partnership Act on Jan. 1, 2008 and this law gives the same benefits of marriage as those enjoyed by heterosexual couples. No federal protections or rights apply.

Washington first enacted it Domestic Partnership Act in June 2007, with an Expansion Act effective June 12, 2008. At the beginning of this year, it presented and now recently passed a second Expansion Bill which will offer registered domestic partners all the state rights and benefits of marriage.

Hawaii's domestic partnership law is titled Reciprocal Beneficiary Relationship, which includes the right to inheritance without a will, hospital visitation and health care decisions, ability to sue for wrongful death or reciprocal beneficiary, loan eligibility, property rights, tort liability and protection under domestic violence laws. Although this law is often used by same-sex couples to secure their rights in their partnership, it is not limited to same-sex couples and can be said to contractually bind parties who are already related, e.g., brother and sister.

Maine's domestic partnership law was effective in April 2004. This law legally makes one partner next of kin to another. This entitles the surviving partner to inherit from the other if he or she dies intestate, make funeral and burial arrangements, and be named guardian or conservator if the other partner becomes incapacitated.

California enacted the first domestic partner registry of its kind in 1999. It has been expanded in scope or modified consistently since enactment. Domestic partnership in this state offers many of the rights and responsibilities common to marriage, including, but not limited to, partner access to insurance coverage, the presumption of parenthood for a child born into the partnership, and, as of 2007, the requirement for filing a state tax return using the same filing status as a “married” couples.

The domestic partnership act in the District of Columbia was enacted in 1992 and has evolved into what it is today with rights being continually added. The current law includes the right to hospital visitation and medical decisions, the right to control the remains of a deceased partner, the right to sick leave and the right to sue for the wrongful death of a partner.

Ramifications of the U.S. Defense of Marriage Act

The U.S. Defense of Marriage Act, often referred to as DOMA, was enacted by Congress in 1996. The act bars federal recognition of same-sex marriages and allows states to do the same. The federal statute brought about a flurry of eight states enacting similar laws, whereas only three states had similar language prior to the federal DOMA. The state DOMAs define marriage as between one man and one woman. The following states have enacted DOMAs: Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Mississippi, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, Tennessee, Texas, Utah, Virginia and Wisconsin.

Not only did some states pass DOMAs, 27 states went a step further and amended their state constitutions adding language that defined marriage as between one man and one woman. These states are: Alabama, Arkansas, Arizona, Colorado, Georgia, Hawaii, 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.

Currently, states that have either DOMAs or constitutional language defining marriage as between one man and one woman (many have both) totals 45. This leaves only six states without laws prohibiting same-sex marriage: Massachusetts, Connecticut, New Jersey, New York, New Mexico, and Rhode Island.

This is sweeping change considering only three states had any DOMA legislation in place before the federal DOMA was passed. The effects of the federal DOMA continue to be felt today. Recently, three states had DOMA constitutional amendments on the ballot: Florida, California, and Arizona.

Interestingly enough, there may be a challenge brewing to the federal DOMA. The Coquille Tribe of coastal Oregon adopted a law in May 2008 conferring all the tribal benefits of marriage to a same-sex couple where at least one partner is a Coquille. The Tribe is a federally recognized sovereign nation not bound by Oregon's constitution. The issue brewing is whether or not the Tribe can pass a law that arguably conflicts with the federal DOMA.

How the Courts Are Interpreting Legislation or the Lack Thereof

Courts have gone in a variety of different directions when interpreting legislation and state constitutions on the issue of same-sex marriage. Up until recently, there were two cases pending on the issue: The Connecticut Supreme Court just recently returned a favorable ruling in Kerrigan v. Comm'r of Pub. Health, No. 17716, __ A.2d __, 2008 WL 4530885. (Conn. Oct. 28, 2008), which addressed the constitutionality of awarding all of the rights and responsibilities to same sex couples through civil unions but denying them the title of “marriage.” Just this April, Connecticut's Legislature subsequently passed a bill that redefines marriage as the legal union of two people. The bill was presented in order to phase out civil unions and ensure that same sex couples conform to the state's marriage laws. The bill will convert civil unions into marriages effective Oct. 1, 2010. The Iowa Supreme Court heard argument this past December in Varnum v. Brien, No. 07-1499 (Iowa Apr. 3, 2009), which challenged the constitutionality of not awarding the right to marriage to same-sex couples on due process and equal protection grounds. The Iowa Supreme Court has just recently returned a favorable ruling in that case. A large number of cases have been decided, but there is no consistency among the various state courts. These cases span from holding that a state constitution requires that same-sex couples be allowed to marry, to cases holding the opposite and everything in between. Two cases in Hawaii and Alaska addressing this same issue were rendered moot by amendments to their respective state constitutions.

Jurisdictions that have provided definite answers to the question of marriage hold that same-sex marriage is either constitutional or unconstitutional. The supreme courts of both Massachusetts, In re Opinions of the Justices to the Senate, 440 Mass. 1201, 802 N.E.2d 565 (Mass. 2004); Goodridge v. Dep't of Pub. Health, 440 Mass. 30, 798 N.E.2d 941 (Mass. 2003) and Connecticut Kerrigan & Mock v. Connecticut Department of Pub. Health (SC 17716) have upheld the constitutionality of marriage in their respective states. In California, the Supreme Court found similarly, In re Marriage Cases, 43 Cal.4th 757, 183 P.3rd 384 (Cal. 2008); however, the passage of Proposition 8 in November 2008 overturned that ruling. However, Proposition 8 was promptly challenged as being unconstitutional within its process, and oral argument that could reinstate same-sex marriage in California, was heard on March 5, 2009. It is still uncertain as to what the outcome will be in that state.

Contrarily, several states have held that their respective state constitutions do not require that same-sex couples be allowed to marry. See Maryland, Conaway v. Deane, 401 Md. 219, 932 A.2d 571 Md. (Md. 2007); New York, Hernandez v. Robles, 7 N.Y.3d 338, 855 N.E.2d 1 (N.Y. 2006); Washington, Andersen v. King County, 158 Wash. 2d 1, 138 P.3d 963 (Wash. 2006); Indiana, Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005); and Arizona, Standhardt v. Superior Court, 206 Ariz. 276, 77 P.3d 451 (Ariz. Ct. App. 2003).

Many states have taken a position in the middle of the spectrum. Although not stating that same-sex marriage is required by their state constitutions, state courts in New Jersey, Lewis v. Harris, 188 N.J. 415, 908 A.2d 196 (N.J. 2006); and Vermont, Baker v. State, 170 Vt. 194, 744 A.2d 864 (Vt. 1999) held that their respective state constitution requires that same-sex couples be provided the protections of marriage while leaving open whether the privileged name of “marriage” is also required. Additionally, Alaska, Alaska Civil Liberties Union v. Alaska, 122 P.3d 781 (Alaska 2005); Montana, Snetsinger v. Montana Univ. Sys., 325 Mont. 148, 104 P.3d 445 (Mont. 2004); and Oregon, Tanner v. Oregon Health Sciences Univ., 161 Or. App. 129, 980 P.2d 186 (Or. Ct. App. 1999) courts have held that their state constitutions require that state employees in same-sex relationships be provided benefits given to those who are married.

What to do when you have no precedent in the Non-Traditional Setting?

An issue that is now on the forefront of many minds, including
those of the Attorneys General of many states, is how the ability of non-resident couples to marry in Connecticut and Massachusetts will affect these couples' rights in other states. A few states have already declared that they would accept the marriage as valid in their state. New York and Rhode Island will fully accept the marriage as valid; New Jersey has stated that it will consider a couple who marries validly out-of-state to have a civil union within its state borders.

Not all states have been so accepting of these new circumstances. Attorneys General from Alaska, Colorado, Florida, Idaho, Michigan, Nebraska, South Carolina, South Dakota and Utah were concerned about potential legal complications that they asked California to postpone marrying same-sex couples until after the November 2008 elections. California refused to take such action, allowing same-sex couples to marry legally beginning in June of 2008. Those marriages that took place prior to the passing of Prop. 8 currently stand as legally valid.What states will do with these new circumstances is yet to be determined. The closest legal analogy to same-sex marriage recognition is the anti-miscegenation laws. In the 1960s, even states with mandatory segregation honored the rights of interracial couples who married in another state and traveled through or migrated to the South where such laws barred such marriages. Similar to the miscegenation laws, most states have a history of recognizing marriages from other states, except in cases that involve incest or polygamy. However, the federal DOMA, which bars federal recognition of same-sex marriage, allows states to reject same-sex marriages from other states for any reason.

Conclusion

Practically speaking, the issues pertaining to legal recognition of the status of relationships leads all of us into a flurry of conversation and speculation about how each court will view the issues encountered. Staying current with our changing legal landscape is essential.

Elizabeth Berns, a member of the Seattle firm of Helsell Fetterman, assists clients with complex business transactions, intellectual property protection, arts and entertainment matters, estate planning and probate.

The state of legal affairs for gay, lesbian, bisexual and transgendered (GLBT) issues across the county provides for a rapidly changing legal landscape. Getting personal and political about same-sex marriage is now becoming a recurrent experience ' all well-timed in light of the pending arguments and recent decisions coming from courts and legislatures across the states.

Where do the courts and legislatures stand with respect to gay marriage, civil unions, and domestic partnership laws across our county? Understanding the current landscape is essential, not only for the family law and estate planning practitioners, but also for those who offer professional support in any capacity to the GLBT Community.

Marriage, Civil Unions, And Domestic Partnerships

Marriage

There are five countries that support same-sex marriages: The Netherlands (2001), Belgium (2003), Spain (2005), Canada (2005), and South Africa (2006). In November 2008, the High Court in Nepal published a decision that directs its government to enact new laws and amend all existing discriminatory laws so that all citizens can exercise equal rights.

In the United States, four states currently recognize same-sex marriage: Vermont and Iowa in 2009, Connecticut in 2008, and Massachusetts in 2003. In three of these states, same-sex marriages were validated by decisions of the respective state's Supreme Court, finding it unconstitutional not to extend the right of marriage to all couples. Recently, in Vermont, the support for granting marriage equality came as a result of the Legislature's enactment of SB 115 over the veto of that state's governor.

Although recognition represents a victory in many ways, marriages entered into in Massachusetts, Connecticut, Iowa and Vermont only grant state level rights and responsibilities but do not apply to federal rights and responsibilities. In addition, getting married in any one of these states (and even in one of the above-referenced countries) does not guarantee the rights of marriage in other states; in fact, most states will not recognize same-sex marriages entered into in other states.

The laws and procedures surrounding marriage do not differ significantly between these states; currently in all four states, both residents and non-residents can marry. However, getting a divorce is more complicated. There are residency requirements. In order to divorce in any one of these states, at least one of the parties must establish residency for at least six months prior to filing.

Civil Unions

Civil unions provide all of the rights and responsibilities of marriage under state law without giving the title of “marriage” to the union/partnership. Up until recently, three states granted civil unions: Vermont, New Hampshire, and New Jersey. Now, Vermont recognizes same-sex marriages. Like states that recognize same-sex marriage, states that grant civil unions only confer the rights and responsibilities under state law, no federal rights follow.

Domestic Partnerships

Domestic partnership is a title given to state laws that confer some to all of the rights and responsibilities of marriage to those couples who qualify and register as such. The rights and protections conferred vary from state to state. Five states (Oregon, Washington, California, Maine, and Hawaii) and the District of Columbia have Domestic Partnership laws. Oregon enacted its Domestic Partnership Act on Jan. 1, 2008 and this law gives the same benefits of marriage as those enjoyed by heterosexual couples. No federal protections or rights apply.

Washington first enacted it Domestic Partnership Act in June 2007, with an Expansion Act effective June 12, 2008. At the beginning of this year, it presented and now recently passed a second Expansion Bill which will offer registered domestic partners all the state rights and benefits of marriage.

Hawaii's domestic partnership law is titled Reciprocal Beneficiary Relationship, which includes the right to inheritance without a will, hospital visitation and health care decisions, ability to sue for wrongful death or reciprocal beneficiary, loan eligibility, property rights, tort liability and protection under domestic violence laws. Although this law is often used by same-sex couples to secure their rights in their partnership, it is not limited to same-sex couples and can be said to contractually bind parties who are already related, e.g., brother and sister.

Maine's domestic partnership law was effective in April 2004. This law legally makes one partner next of kin to another. This entitles the surviving partner to inherit from the other if he or she dies intestate, make funeral and burial arrangements, and be named guardian or conservator if the other partner becomes incapacitated.

California enacted the first domestic partner registry of its kind in 1999. It has been expanded in scope or modified consistently since enactment. Domestic partnership in this state offers many of the rights and responsibilities common to marriage, including, but not limited to, partner access to insurance coverage, the presumption of parenthood for a child born into the partnership, and, as of 2007, the requirement for filing a state tax return using the same filing status as a “married” couples.

The domestic partnership act in the District of Columbia was enacted in 1992 and has evolved into what it is today with rights being continually added. The current law includes the right to hospital visitation and medical decisions, the right to control the remains of a deceased partner, the right to sick leave and the right to sue for the wrongful death of a partner.

Ramifications of the U.S. Defense of Marriage Act

The U.S. Defense of Marriage Act, often referred to as DOMA, was enacted by Congress in 1996. The act bars federal recognition of same-sex marriages and allows states to do the same. The federal statute brought about a flurry of eight states enacting similar laws, whereas only three states had similar language prior to the federal DOMA. The state DOMAs define marriage as between one man and one woman. The following states have enacted DOMAs: Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Mississippi, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, Tennessee, Texas, Utah, Virginia and Wisconsin.

Not only did some states pass DOMAs, 27 states went a step further and amended their state constitutions adding language that defined marriage as between one man and one woman. These states are: Alabama, Arkansas, Arizona, Colorado, Georgia, Hawaii, 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.

Currently, states that have either DOMAs or constitutional language defining marriage as between one man and one woman (many have both) totals 45. This leaves only six states without laws prohibiting same-sex marriage: Massachusetts, Connecticut, New Jersey, New York, New Mexico, and Rhode Island.

This is sweeping change considering only three states had any DOMA legislation in place before the federal DOMA was passed. The effects of the federal DOMA continue to be felt today. Recently, three states had DOMA constitutional amendments on the ballot: Florida, California, and Arizona.

Interestingly enough, there may be a challenge brewing to the federal DOMA. The Coquille Tribe of coastal Oregon adopted a law in May 2008 conferring all the tribal benefits of marriage to a same-sex couple where at least one partner is a Coquille. The Tribe is a federally recognized sovereign nation not bound by Oregon's constitution. The issue brewing is whether or not the Tribe can pass a law that arguably conflicts with the federal DOMA.

How the Courts Are Interpreting Legislation or the Lack Thereof

Courts have gone in a variety of different directions when interpreting legislation and state constitutions on the issue of same-sex marriage. Up until recently, there were two cases pending on the issue: The Connecticut Supreme Court just recently returned a favorable ruling in Kerrigan v. Comm'r of Pub. Health , No. 17716, __ A.2d __, 2008 WL 4530885. (Conn. Oct. 28, 2008), which addressed the constitutionality of awarding all of the rights and responsibilities to same sex couples through civil unions but denying them the title of “marriage.” Just this April, Connecticut's Legislature subsequently passed a bill that redefines marriage as the legal union of two people. The bill was presented in order to phase out civil unions and ensure that same sex couples conform to the state's marriage laws. The bill will convert civil unions into marriages effective Oct. 1, 2010. The Iowa Supreme Court heard argument this past December in Varnum v. Brien, No. 07-1499 (Iowa Apr. 3, 2009), which challenged the constitutionality of not awarding the right to marriage to same-sex couples on due process and equal protection grounds. The Iowa Supreme Court has just recently returned a favorable ruling in that case. A large number of cases have been decided, but there is no consistency among the various state courts. These cases span from holding that a state constitution requires that same-sex couples be allowed to marry, to cases holding the opposite and everything in between. Two cases in Hawaii and Alaska addressing this same issue were rendered moot by amendments to their respective state constitutions.

Jurisdictions that have provided definite answers to the question of marriage hold that same-sex marriage is either constitutional or unconstitutional. The supreme courts of both Massachusetts, In re Opinions of the Justices to the Senate, 440 Mass. 1201, 802 N.E.2d 565 (Mass. 2004); Goodridge v. Dep't of Pub. Health , 440 Mass. 30, 798 N.E.2d 941 (Mass. 2003) and Connecticut Kerrigan & Mock v. Connecticut Department of Pub. Health (SC 17716) have upheld the constitutionality of marriage in their respective states. In California, the Supreme Court found similarly, In re Marriage Cases, 43 Cal.4th 757, 183 P.3rd 384 (Cal. 2008); however, the passage of Proposition 8 in November 2008 overturned that ruling. However, Proposition 8 was promptly challenged as being unconstitutional within its process, and oral argument that could reinstate same-sex marriage in California, was heard on March 5, 2009. It is still uncertain as to what the outcome will be in that state.

Contrarily, several states have held that their respective state constitutions do not require that same-sex couples be allowed to marry. See Maryland, Conaway v. Deane , 401 Md. 219, 932 A.2d 571 Md. (Md. 2007); New York, Hernandez v. Robles , 7 N.Y.3d 338, 855 N.E.2d 1 (N.Y. 2006); Washington, Andersen v. King County , 158 Wash. 2d 1, 138 P.3d 963 (Wash. 2006); Indiana, Morrison v. Sadler , 821 N.E.2d 15 (Ind. Ct. App. 2005); and Arizona, Standhardt v. Superior Court , 206 Ariz. 276, 77 P.3d 451 (Ariz. Ct. App. 2003).

Many states have taken a position in the middle of the spectrum. Although not stating that same-sex marriage is required by their state constitutions, state courts in New Jersey, Lewis v. Harris , 188 N.J. 415, 908 A.2d 196 (N.J. 2006); and Vermont, Baker v. State , 170 Vt. 194, 744 A.2d 864 (Vt. 1999) held that their respective state constitution requires that same-sex couples be provided the protections of marriage while leaving open whether the privileged name of “marriage” is also required. Additionally, Alaska, A laska Civil Liberties Union v. Alaska , 122 P.3d 781 (Alaska 2005); Montana, Snetsinger v. Montana Univ. Sys. , 325 Mont. 148, 104 P.3d 445 (Mont. 2004); and Oregon, Tanner v. Oregon Health Sciences Univ., 161 Or. App. 129, 980 P.2d 186 (Or. Ct. App. 1999) courts have held that their state constitutions require that state employees in same-sex relationships be provided benefits given to those who are married.

What to do when you have no precedent in the Non-Traditional Setting?

An issue that is now on the forefront of many minds, including
those of the Attorneys General of many states, is how the ability of non-resident couples to marry in Connecticut and Massachusetts will affect these couples' rights in other states. A few states have already declared that they would accept the marriage as valid in their state. New York and Rhode Island will fully accept the marriage as valid; New Jersey has stated that it will consider a couple who marries validly out-of-state to have a civil union within its state borders.

Not all states have been so accepting of these new circumstances. Attorneys General from Alaska, Colorado, Florida, Idaho, Michigan, Nebraska, South Carolina, South Dakota and Utah were concerned about potential legal complications that they asked California to postpone marrying same-sex couples until after the November 2008 elections. California refused to take such action, allowing same-sex couples to marry legally beginning in June of 2008. Those marriages that took place prior to the passing of Prop. 8 currently stand as legally valid.What states will do with these new circumstances is yet to be determined. The closest legal analogy to same-sex marriage recognition is the anti-miscegenation laws. In the 1960s, even states with mandatory segregation honored the rights of interracial couples who married in another state and traveled through or migrated to the South where such laws barred such marriages. Similar to the miscegenation laws, most states have a history of recognizing marriages from other states, except in cases that involve incest or polygamy. However, the federal DOMA, which bars federal recognition of same-sex marriage, allows states to reject same-sex marriages from other states for any reason.

Conclusion

Practically speaking, the issues pertaining to legal recognition of the status of relationships leads all of us into a flurry of conversation and speculation about how each court will view the issues encountered. Staying current with our changing legal landscape is essential.

Elizabeth Berns, a member of the Seattle firm of Helsell Fetterman, assists clients with complex business transactions, intellectual property protection, arts and entertainment matters, estate planning and probate.