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Same Sex Marriage, Civil Unions and Domestic Partnerships

Last Update: May, 2008

• Issues marriage licenses to same-sex couples: Massachusetts, California* 
• Recognizes same-sex marriages from other states:  Rhode Island
• Allows civil unions, providing state-level spousal rights to same-sex couples: Connecticut, Vermont, New Jersey, New Hampshire
• Statewide law provides nearly all state-level spousal rights to unmarried couples (Domestic Partnerships): California, Oregon
• Statewide law provides some state-level spousal rights to unmarried couples: Hawaii, Maine, District of Columbia, Washington

* The Calfornia Supreme Court ruled on May 15, 2008 that same sex couples have the right to marry in California.  This decision could be made moot if a ballot initiative to define marriage between one man and one woman passes in November, 2008.

Same-sex marriage timeline
Civil unions/domestic partnership state statutes

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 legsl 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 will take effect on January 1, 2008.

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

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.  Twenty-seven states have defined marriage in their constitutions.  Arizona (2006) is the only state that has ever defeated a constitutional amendment defining marriage between a man and a woman. 

States with Statutes Defining Marriage	States with Constitutional Language Defining Marriage	States with No Provision Prohibiting Same-Sex Marriage	States with a Constitutional Amendment on ballot in 2008
Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland* Michigan Minnesota Mississippi Missouri Montana New Hampshire North Carolina North Dakota Ohio Oklahoma Pennsylvania South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming *-In January 2006, a state judge found the Maryland statute unconstitutional but it remains in effect pending appeal.	Alabama Alaska Arkansas 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 Wisconsin                 *Hawaii's constitution was amended in 1998 to read "The Legislature shall have the power to reserve marriage to opposite-sex couples."  The Hawaii legislature subsequently passed a law prohibiting marriage for same-sex couples.	Massachusetts New Jersey New Mexico New York Rhode Island	Florida
TOTALS:                42	27	5	1

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.