Federal Laws on Same-Sex Marriage

1. U.S. Constitution: No provision prevents same-sex marriage or any other relationship law listed below.

2. Statute - Defense of Marriage Act (DOMA) of 1996

   1. Section 1. This Act may be cited as "Defense of Marriage Act."

   2. Section 2. No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

   3. Section 3. federal definition, any act of congress or admin bureaus/agencies, marriage is only one man and woman as husband and wife, and spouse is only opposite sex.

3. Challenge to DOMA

   1. Windsor v. United States: http://www.scotusblog.com/case-files/cases/windsor-v-united-states-2/

4. Challenge to California's Proposition 8

   1. Hollingsworth v. Perry: http://www.scotusblog.com/case-files/cases/hollingsworth-v-perry/

       

Summary of State Relationship Laws

1. Full Marriage Equality: Connecticut (2010); District of Columbia (2010); Iowa (2009); Maine (2012); Maryland (2012); Massachusetts (2004); New Hampshire (2010); New York (2011); Rhode Island (2013); Vermont (2009); Washington (2012); Coquille Indian Tribe; Suquamish Tribe; Little Traverse Bay Bands of Odawa Indians.

    

2. All/Most Rights & Responsibilities of Marriage

   1. Civil Unions: Colorado (eff. 05/01/2013), Delaware (2011), Hawaii (2012), Illinois (2011), New Jersey (2007), Rhode Island (2011), Vermont (unavailable as of 09/01/2009, existing civil unions remain valid); New Hampshire (2008, until 2011, existing civil unions converted to marriage); Connecticut (2005, until 10/01/2010 when all civil unions were converted to marriages)

   2. Broad Domestic Partnerships: California (1999-2005, 4 sets of legislation); Nevada (2009); Washington; New Jersey (2004, but only for opposite sex couples over age 62); Oregon (2008)

    

3. Some Rights & Responsibilities of Marriage

   1. Limited Domestic Partnerships: Maine (2004, until 2012), Wisconsin (2009), Washington (2007; On 06/30/2014, these will be limited to couples in which one of the persons is 62 years of age or older, and all existing same-sex partnerships will be converted to marriage unless dissolved or converted to marriage before that date); District of Columbia (1992; On 03/03/2010, couples in a domestic partnership could apply for marriage license)

   2. Reciprocal Beneficiaries: Hawaii (1997; still in effect; not limited to same-sex couples; may be used by two parties, even if they are related )

   3. Designated Beneficiary Agreements: Colorado (until 05/01/2013)

4. Recognition of Out-of-State Same-Sex Marriages, Civil Unions, Domestic Partnerships

    

   1. If you have a client who has a same-sex partner, and they are validly married, civilly united, or domestic partnered in another state, it is important that you become familiar with the corresponding law in the other state. The laws in this area change frequently, and there is a lack of completely compiled documentation out there as a one-stop reference.

       

   2. Recognition of Out-of-state Same-Sex Marriages

      1. Basic marriage recognition rule: a marriage is valid in a home state if it was valid where performed unless it is against the public policy of the home state.

      2. Marriage Equality states that allow same-sex marriage should recognize other out-of-state same-sex marriages. Confirmed: Maine, D.C. & Maryland

      3. Non-Recognition states that recognize out-of-state same-sex marriages: Rhode Island (2012), Delaware (2012)

       

   3. Recognition of Out-of-state Civil Unions

      1. Colorado (eff. 05/01/2013), New Hampshire (2008), Maine, D.C. & Maryland.

       

   4. Recognition of Foreign Domestic Partnerships

      1. In most instances, DPs are not recognized outside of the jurisdiction in which they are performed.

      2. Maine; D.C.: if DP is on Mayor-maintained list and out-of-state DP is substantially similar to D.C.'s DP.

       

5. Same-sex marriage prevented by statute only

   1. Delaware, Illinois, Indiana, Minnesota, Pennsylvania, West Virginia, Wyoming

       

6. Same-sex marriage prevented by state constitutional amendment

   1. Alabama, Alaska, Arizona, Arkansas, California, Colorado, Florida, Georgia, Hawaii, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin

       

7. Same-sex marriage prevented by state constitutional amendment and statute

   1. Arkansas and others.

    

8. States with potential in 2013 for same-sex marriage through legislation, ballot measures, or court actions:

   1. Illinois, Rhode Island, Delaware, New Jersey, California, Hawaii, Minnesota.

   2. Delaware passed marriage legislation on Thursday, May 2, 2013, effective August 1, 2013. Governor Lincoln Chafee signed the legislation.