Encyclopedia of Everyday Law | Gay Couples

• Background
• Pre-1993
• Baehr v. Lewin
• The Reaction
• Baker v. Vermont
• Municipalities and Corporations
• Additional Resources
• Organizations

Background

Within the already controversial realm of gay rights, no area is more controversial than gay marriage. For some, the idea that homosexual couples should have the same matrimonial benefits as heterosexual couples makes perfect sense: it is simply part of giving homosexuals equal rights and allowing them to reap the same rewards that accrue to married people. Others see the idea that homosexual unions be accorded identical respect and benefits as an abomination, a perversion of a status under the law that should only be granted to unions consisting of a man and a woman.

The debate over gay marriage is not confined to the sacrament of marriage itself, although being allowed to partake in that sacrament legally drives much of the emotionalism of the debate. It also has a more pragmatic side: whether same-sex couples should receive the same tax and estate advantages, the same rights to surviving children, the same COMMUNITY PROPERTY rights, and the same health care benefits as straight couples.

Although same-sex marriages have occurred privately for years, only recently was the idea they should be given the same status under the law as heterosexual marriages litigated. Only since 1993, with the Hawaii Supreme Court decision in Behar v. Lewin, have gay rights supporters seen any measurable progress on the state legal front concerning homosexual marriage. Since that decision, there have been steps forward and back on both sides in the battle for legalized same-sex marriage.

Pre-1993

Same-sex marriages, unions between two members of the same sex in some sort of ceremony, religious or otherwise, existed for many years before the first case was filed to gain legal recognition of them. Generally, they were kept private, with knowledge limited to immediate friends and family members. The first lawsuit seeking to legalize a same-sex marriage was filed in 1971. Baker v. Nelson was inspired by the 1967 U. S. Supreme Court decision in Loving v. Virginia, invalidating a STATUTE prohibiting interracial marriage. But Jack Baker's attempt to gain legal status for his marriage to Mike McConnell was struck down by the Minnesota Supreme Court, which ruled that marriage was by definition between a man and a woman, and thus, unlike in Loving, there was no fundamental right to marry. Moreover, in 1974, the Washington Supreme Court determined that the state's EQUAL RIGHTS AMENDMENT could not be held to allow homosexuals the right to marry. The law protected only on the basis of sex, not sexual orientation.

Following these cases, all attempts failed to get a state or federal court to recognize the right of homosexuals to marry. There were decisions allowing unmarried partners to sue for enforcement of promises of support or financial sharing (so-called "palimony" cases), beginning with the landmark Marvin v. Marvin case involving actor Lee Marvin in California in 1976. Gays also attempted to form legal relationships by having one partner "adopt" the other. Some municipalities, beginning with Berkeley in 1984, adopted domestic partnership laws that extended some recognition and benefits of marriage to registered same-sex couples. But these acts were considered by gay activists to fall far short of granting marriage recognition to gay unions.

Baehr v. Lewin

In 1993, the Hawaii Supreme Court reached a surprising decision in Baehr v. Lewin. Ninia Baehr sued the state of Hawaii, charging its refusal to issue her and her same-sex partner a marriage license amounted to illegal DISCRIMINATION. In a PLURALITY decision, the Supreme Court said her case had merit. The Court ruled the state's prohibition of same-sex marriages amounted to discrimination on the basis of sex. Under the state's Equal Rights Amendment, the state would have to establish a compelling state interest supporting such a ban, a fairly strict standard. Although the court did not directly rule that the state's prohibition of same-sex marriages was illegal, it left little doubt of its skepticism regarding the proposition. The court remanded the case to a lower court to determine whether the state could prove this compelling state interest in prohibiting same-sex marriage.

For the first time, a state Supreme Court had ruled that gay couples might have the right to marry. Although its immediate impact was only in Hawaii, the decision heartened gay rights supporters and discouraged opponents throughout the country. One reason for these responses was Full Faith and Credit Clause of the United States Constitution which states "Full Faith and Credit shall be given in each state to the public Acts, Records and judicial Proceedings of every other state." The Clause requires states to grant full weight to legal actions in other states, including marriages, divorces, and other family-related situations. In effect, argued both opponents and proponents of gay marriage, the Full Faith and Credit Clause of the Constitution suggests that a legal marriage between a same-sex couple in Hawaii is a legal marriage everywhere else in the United States.

The Reaction

Spurred by the possibility the Hawaii Supreme Court would legalize gay marriages and that action might force other states to recognize them, opponents of same-sex marriages were mobilized. Yet some disagreed over whether Hawaii's potential legalization of gay marriage would necessarily overrule other states' anti-gay marriage laws. Nevertheless, anti-gay marriage legislation was passed on both the state and federal level.

The Defense of Marriage Act

In 1996, in response to the Baehr decision and resulting objections, the U. S. Congress passed the Defense of Marriage Act (DOMA). The act was designed to prevent the Full Faith and Credit Clause from being applied to states' refusal to recognize same sex marriages. It defines marriage as a union between a man and a woman only. The act also specifically denies federal benefits to same-sex couples. The act states that any federal law that applies to married couples does not apply to same-sex couple: STATUTORY and administrative use of terms such as "marriage" and "spouse" under federal law only apply to heterosexual couples. DOMA does not ban same-sex marriages in itself. Neither does it require any state to ban them. Rather, it states that "No state, territory or possession of the United States . . . 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 a relationship."

Since its passage, DOMA has never been tested under the Full Faith and Credit Clause. Some commentators believe that it would not survive scrutiny under that Clause. As of 2001, no state had legalized gay marriage. However, Vermont has legalized "civil unions" between same-sex couples but specifically does not call these "marriages".

State Laws

Before the Hawaii court decided Baehr, every state had a ban on same-sex marriages. Since Baehr, 31 states have adopted additional laws that specify no recognition of those same-sex marriages which are legal in other states. These states, and the year they enacted non-recognition of same-sex marriage laws, are listed below.

ALABAMA: 1998

ALASKA: 1996
ARIZONA: 1996
ARKANSAS: 1997
CALIFORNIA: 1999
DELAWARE: 1996
FLORIDA: 1997
GEORGIA: 1996
IDAHO: 1996
ILLINOIS: 1996
INDIANA: 1997
IOWA: 1998
KANSAS: 1996
KENTUCKY: 1998
LOUISIANA: 1996
MAINE: 1997
MICHIGAN: 1996
MINNESOTA: 1997
MISSISSIPPI: 1997
MISSOURI: 1996
MONTANA: 1997
NORTH CAROLINA: 1995
NORTH DAKOTA: 1997
OKLAHOMA: 1996
PENNSYLVANIA: 1996
SOUTH CAROLINA: 1996
SOUTH DAKOTA: 1996
TENNESSEE: 1996
UTAH: 1995
VIRGINIA: 1997
WASHINGTON: 1998

Like DOMA, none of these state laws has been tested under the Full Faith and Credit Act.

Hawaii Revisited

One reason why neither DOMA nor any of the recently passed state non-recognition laws has been tested is the subsequent action in Hawaii. After the Hawaiian Supreme Court's decision in Baehr, the case moved slowly through the courts to determine whether the state had a compelling interest in banning same-sex marriages. In 1997, a Hawaiian Circuit Court judge determined the newly passed law still violated the state's Equal Rights Amendment and ordered the state to stop denying marriage licenses to same sex-couples. But in 1998, voters in the state changed the terms of the debate by adopting a CONSTITUTIONAL AMENDMENT allowing legislators to ban same-sex marriages, thus making the state's Equal Rights Amendment no longer applicable. In December, 1999, the Hawaiian Supreme Court determined that this new ban was effective and refused to recognize same-sex marriages in the state. As a result, no state has of this writing recognized same-sex marriages.

Baker v. Vermont

In 1999, the same year the Hawaiian Supreme Court refused to recognize same-sex marriages, the Vermont Supreme Court handed down its decision in Baker v. State. In that decision, the court said that same-sex couples must be granted the same benefits and protections that heterosexual couples received under state law. The court instructed the state legislator to determine how to grant homosexual couples those benefits and protections. It did not require the state to allow same-sex couples to be legally married but told the state legislator it had to find some way to treat those couples the same as if they were legally married.

The next year, the state passed a bill allowing same-sex couples to enter into "civil unions." Town clerks were authorized to give licenses to same-sex couples for these unions in the same way they would give out marriage licenses. They could be married by anyone authorized to perform marriages under state law and would have to DIVORCE under state law in the same way heterosexual couples would.

Same-sex couples in civil unions would be entitled to all the benefits available under state law to married couples, including medical decisions, estate INHERITANCE, overseeing burials, transferring properties, and certain tax breaks. Employers would have to treat civil union couples in the same way they treated other married couples, in matters including health benefits, marital status discrimination law, WORKERS' COMPENSATION benefits, TAXATION, family leave benefits and WAGE ASSIGNMENT laws. The Vermont civil union bill was a landmark in the fight over gay marriages. For the first time, a state was allowing gay couples to have the same benefits as married couples under state law. Because Vermont refused to label these unions as marriages, it is more unlikely that they will conflict with other states nonrecognition laws, although some commentators have suggested the Full Faith And Credit Clause might still apply.

Municipalities and Corporations

Municipalities have been generally more likely than states to grant same-sex couples the benefits of marriage than states. Since Berkeley passed the first domestic partnership law in 1984, approximately 60 cities and municipalities have enacted domestic partnership policies, including New York City and San Francisco. Although these policies do not legalize same-sex marriages (only the states can do that), they provide that same-sex couples will be treated the same as heterosexual couples under city ordinances and for such employment related purposes as health and DISABILITY benefits. Many CORPORATIONS, including companies such as Disney, Microsoft and IBM, also provide same-sex couples with the same benefits as married couples. This trend appears to be a growing.

Organizations

Lambda Legal Defense and Education Fund
120 Wall Street, Suite 1500
New York, NY 10005-3904
USA Phone: (212) 809-8585
Fax: (212) 809-0055
URL: www.lamdalegal.org
Primary Contact: Kevin Cathcart, Executive Director