Same Sex Marriage, Civil Unions and Domestic Partnerships

							Same Sex Marriage, Civil Unions and
Domestic Partnerships
Last Update: April, 2010

Quick facts on key states:

      Issues marriage licenses to same-sex couples: Massachusetts, Connecticut, California*,
       Iowa, Vermont, New Hampshire, District of Columbia
      Recognizes same-sex marriages from other states: Rhode Island, New York, Maryland
      Allows civil unions, providing state-level spousal rights to same-sex couples: New
       Jersey (Note: In Connecticut, Vermont and New Hampshire, same sex marriage has
       replaced civil unions.)
      Statewide law provides nearly all state-level spousal rights to unmarried couples
       (Domestic Partnerships): California, Oregon, Nevada, Washington
      Statewide law provides some state-level spousal rights to unmarried couples
       (Domestic Partnerships): Hawaii, Maine, District of Columbia, Wisconsin
      * The California Supreme Court ruled on May 15, 2008 that same sex couples have the
       right to marry in California. Proposition 8, which limits marriage to one man and one
       woman, was passed on November 4, 2008. The decision was appealed. Same-sex
       marriages performed before Proposition 8 was passed will remain valid, but same sex
       marriages are no longer performed in California.



Resources

NCSL's Same-sex marriage timeline provides a chronological account of significant events
related to same-sex marriage since 2003.

A chart summarizing civil unions/domestic partnership state statutes provides information and
links to laws in states that allow civil unions or domestic partnerships.

A table listing states with statutes defining marriage between one man and one woman,
constitutional amendments defining marriage between one man and one woman, states without
any laws prohibiting same sex marriage and states with constitutional amendments on the ballot
this year.

States offering benefits to same-sex partners of state employees.



Same-Sex Marriage Overview
In November 2003, the Massachusetts Supreme Judicial Court ruled that barring same-sex
couples from civil marriage was unconstitutional. The Senate then asked the Court for an
advisory opinion on the constitutionality of a proposed law that would bar same-sex couples
from civil marriage but would create civil unions as a parallel institution, with all the same
benefits, protections, rights and responsibilities under law. In February, the Court answered,
"segregating same-sex unions from opposite-sex unions cannot possibly be held rationally to
advance or preserve" the governmental aim of encouraging "stable adult relationships for the
good of the individual and of the community, especially its children." Under this decision, the
state of Massachusetts began issuing marriage licenses to same sex couples in May 2004.

This ruling is part of a larger public discussion of "marriage" and "family" that started in 1993
when the Hawaii Supreme Court ruled that laws denying same-sex couples the right to marry
violated state constitutional equal protection rights unless the state could show a "compelling
reason" for such discrimination. In 1996, a trial court ruled that the state had no such compelling
reason and the case headed back to the Supreme Court. Voters adopted a Constitutional
amendment in 1998, before the final ruling was issued, giving the Legislature the power to
reserve marriage to opposite-sex couples and effectively ending the lawsuit.

In April 2000, Vermont approved landmark legislation to recognize civil unions between same-
sex couples, granting them virtually all the benefits, protections and responsibilities that married
couples have under Vermont law. The Vermont legislation was a result of the state Supreme
Court ruling in Baker v. Vermont that said same-sex couples are entitled, under the state
constitution's "Common Benefits Clause," to the same benefits and protections as married
opposite-sex couples. The court ruled that the Vermont Legislature must decide how to provide
these benefits and protections, either by legalizing marriage for same-sex couples or by
establishing an alternative system. In April 2005, Connecticut became the first state to legalize
civil unions without prompting from the courts.

The Vermont Legislature chose to preserve marriage as the "legally recognized union of one man
and one woman," but at the same time create a parallel system of civil unions for same-sex
couples that goes beyond existing "domestic partnership" and "reciprocal beneficiaries" laws that
exist in California and Hawaii and in many localities in the U.S. today.

In October, 2006, the New Jersey Supreme Court ordered the legislature to redefine marriage to
include same-sex couples or to establish a separate legal structure, such as civil unions, to give
same-sex couples the same rights as heterosexual marriage couples. In late 2006, the New Jersey
legislature passed a statute allowing civil unions beginning February 19, 2007. New Hampshire
passed legislation authorizing civil unions, which took effect on January 1, 2008.

On May 15, 2008, the California Supreme Court ruled that same-sex couples should have the
right to marry. The ruling took effect mid-June and same sex marriages were performed in
California for a short period of time before a ballot initiative defining marriage between one man
and one woman was certified in late summer. Proposition 8 passed in November, 2008, again
banning same sex marriage in California. Proposition 8 was challenged in early 2009, but the
California Supreme Court upheld the law in May, 2009.
In October, 2008, the Connecticut Supreme Court ruled that a ban against same sex marriage was
in violation of the equal protection clause in the state constitution. Connecticut became the
second state to allow same sex marriage. As of October, 2009, civil unions were no longer
offered.

In April, 2009, the Iowa Supreme Court ruled that the states ban against same sex marriage was
unconstitutional. Iowa began performing same sex marriages in June, 2009.

In May, 2009, Vermont became the first state where the legislature, without judicial mandate,
passed legislation to allow same sex marriage. Maine and New Hampshire quickly followed,
bringing the total number of states to allow same sex marriage to six. However, same sex
marriages were never performed in the state of Maine because a ballot measure passed in
November, 2009, repealed the law.

In December, 2009, the District of Columbia Council passed a same sex marriage law, subject to
a Congressional review period. It is anticipated that same sex couples in DC will be allowed to
marry beginning in March, 2010.

Defense of Marriage Act (DOMA)

Congress enacted the Defense of Marriage Act (DOMA) in 1996, which bars federal recognition
of same-sex marriages and allows states to do the same. Since 1996, many states have enacted
legislation prohibiting same-sex marriages or the recognition of same-sex marriages formed in
another jurisdiction. States have traditionally recognized marriages solemnized in other states,
even those that go against the marriage laws of that particular state. Under the full faith and
credit clause of the U.S. Constitution, states are generally required to recognize and honor the
public laws of other states, unless those laws are contrary to the strong public policy of that state.

Over half of the states have passed language defining marriage between a man and a woman in
their state constitutions. Arizona is the only state where a constitutional amendment on the ballot
in a general election has failed (2006). Typically, constitutional amendments have passed with
an overwhelming majority.

There have been several proposals before Congress to amend the federal Constitution, defining
marriage as between a man and a woman and ensuring that states would not be required to
recognize same-sex marriages from other jurisdictions. President Bush has announced his
support for such an amendment, however, he is receptive to allowing states to "define other
arrangements." This could indicate that the President does not favor enacting a federal ban on
civil union or domestic partnership laws. Opponents of the amendment cite federalism concerns
in addition to support for same-sex marriages. A constitutional amendment requires 2/3 of the
U.S. House and Senate and 3/4 of the state legislatures for enactment. For a summary of
proposed federal legislation from 2002 to present, click here.

                               Defense of Marriage Acts (DOMA)
Forty-one states currently have statutory Defense of Marriage Acts. Three of those states have
statutory language that pre-dates DOMA (enacted before 1996) defining marriage as between a
man and a woman. Thirty states have defined marriage in their constitutions. Arizona is the
only state that has ever defeated a constitutional amendment defining marriage between a man
and a woman (2006), but subsequently passed one in 2008.

States with Statutes                           States Without
                       States with                                   States that passed a
Defining Marriage                              Law Prohibiting
                       Constitutional Language                       DOMA Constitutional
Between One Man                                Same-Sex
                       Defining Marriage                             Amendment in 2008
and One Woman                                  Marriage
Alabama                Alabama                 Massachusetts         Florida
Alaska                 Alaska                  New Jersey            California
Arizona                Arizona                 New Mexico            Arizona
Arkansas               Arkansas                New York
Colorado               California              Rhode Island
Connecticut**          Colorado
Delaware               Florida
Florida                Georgia
Georgia                Hawaii*
Hawaii                 Idaho
Idaho                  Kansas
Illinois               Kentucky
Indiana                Louisiana
Iowa***                Michigan
Kansas                 Mississippi
Kentucky               Missouri
Louisiana              Montana
Maine                  Nebraska
Maryland               Nevada
Michigan               North Dakota
Minnesota              Ohio
Mississippi            Oklahoma
Missouri               Oregon
Montana                South Carolina
New Hampshire          South Dakota
North Carolina         Tennessee
North Dakota           Texas
Ohio                   Utah
Oklahoma               Virginia
Pennsylvania           Wisconsin
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming

**In October, 2008, the
Connecticut Supreme
Court invalidated the
state statute banning
same-sex marriage.

***In April, 2009, the *Hawaii's constitution was
Iowa Supreme Court     amended in 1998 to read
invalidated the state  "The Legislature shall
statute banning same   have the power to reserve
sex marriage.          marriage to opposite-sex
                       couples." The Hawaii
                       legislature subsequently
                       passed a law prohibiting
                       marriage for same-sex
                       couples.
TOTALS:             41                     30     5                   3

 The three states that had statutory language defining marriage pre-dating DOMA are Wyoming
(1957), Maryland (1973) and New Hampshire (1987).



For more information on same sex marriage issues, please contact Christine Nelson in NCSL's
Denver office at 303.364.7700 or cyf-info@ncsl.org. For federal marriage issues, contact either
Sheri Steisel or Lee Posey in the D.C. office at 202.624.5400 or fedhumserv-info@ncsl.org.

http://www.ncsl.org/default.aspx?tabid=16430