Defining Marriage: Defense of Marriage Acts and Same-Sex Marriage Laws

Updated May 2012

Quick facts on key provisions:

 State law and/or constitutional provision limits marriage to relationships between a man and a woman:

Alabama, Alaska, Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, Wyoming

State issues marriage licenses to same-sex couples:

Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York and the District of Columbia

* Legislation passed in Washington and Maryland in February 2012 will allow same-sex marriages, but those laws have not yet taken effect. In California, a federal appeals court found that the state constitution's restriction on same-sex marriage was invalid, but has postponed enforcement pending appeal.

States allows civil unions, providing state-level spousal rights to same-sex couples: 

Delaware, Hawaii, Illinois, New Jersey, Rhode Island (Note:  In Connecticut, Vermont and New Hampshire, same-sex marriage has replaced civil unions.)

State grants nearly all state-level spousal rights to unmarried couples (domestic partnerships):

California, Nevada, Oregon,  Washington

State provides some state-level spousal rights to unmarried couples (domestic partnerships):

Hawaii, Maine, Wisconsin and the District of Columbia

State Defense of Marriage Acts and Same-Sex Marriage Laws

* Legislation passed in Washington and Maryland in February 2012 will allow same-sex marriages, but those laws have not yet taken effect. In California, a federal appeals court found that the state constitution's restriction on same-sex marriage was invalid, but has postponed enforcement pending appeal.

History and Overview

State legislatures have been deeply involved in the public debates about how to define marriage and whether the official recognition of “marriage” should be limited to relationships involving one man and one woman or that same-sex couples should also be entitled to “marriage.” State legislatures have gone both ways in this debate: either enacting “defense of marriage” laws and constitutional provisions or, going the opposite direction, adopting laws allowing same sex marriage.

Most states (38) have adopted prohibitions of same-sex marriage. Most states do so by adopting “defense of marriage” language that defines marriage in their state  constitution and/or state law in a way similar to the language in the federal Defense of Marriage Act (DOMA) —“the word 'marriage' means only a legal union between one man and one woman as husband and wife.” Other states prohibit same sex marriages or marriages between persons of the same sex or gender. Twenty-nine states have placed that language in their state constitutions (26 of these states also have statutory provisions adopting this language). A further nine states have statutory language adopting the restrictive language. Note that this count does not include Maryland or Washington, where legislatures in 2012 adopted laws allowing same-sex marriage, or California, where federal courts have invalidated a 2008 initiative that added constitutional language defining marriage as limited to unions involving one man and one woman.

Six states and the District of Columbia currently allow same-sex marriages. In Massachusetts, Connecticut, and Iowa, the states’ highest courts ruled that the state constitution required that same-sex couples be accorded the same marriage rights as opposite-sex couples. In Vermont, New Hampshire, the District of Columbia and New York, legislative bodies have passed statutory changes that allow same-sex marriages. Same-sex marriages are currently being performed in those states. 

In 2012, the Washington and Maryland legislatures passed laws allowing same-sex marriage, but these laws have not yet taken effect. In addition, the California appeals court decision means that same-sex marriages will be allowed in California unless a higher court reverses that decision. Same-sex marriages are not currently allowed in those three states.

Several states have also expanded the legal rights available to spouses in same-sex relationships while also limiting marriage to opposite-sex couples with civil unions and domestic partnerships.

• Five states adopted civil unions available to both same-sex and opposite-sex couples. Civil unions provide legal recognition to the couples’ relationship while providing legal rights to the partners similar to those accorded to spouses in marriages.
• Three states have adopted broad domestic partnerships that grant nearly all state-level spousal rights to unmarried couples. Domestic partnerships are available to both same-sex and opposite-sex couples.
• Three states and D.C. provide limited domestic partnerships that provide some state-level spousal rights to unmarried couples, including same-sex couples.

Resources

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

Civil unions and domestic partnerships statutes provides information and links to laws in states that allow civil unions or domestic partnerships.

State laws limiting marriage to opposite-sex couples provides information on state Defense of Marriage Acts.

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

Same-sex marriage on the ballot provides information on statewide votes on marriage issues.

For more information on defense of marriage acts (DOMA) and same-sex marriage issues, please contact Jack Tweedie in the Denver office at 303.856.1546 or cyf-info@ncsl.org.  For federal marriage issues, contact Sheri Steisel in the D.C. office at 202.624.5400 or fedhumserv-info@ncsl.org.