Same-Sex Marriages: Legal Issues
Same-Sex Marriages: Legal Issues
Updated November 18, 2008
Alison M. Smith
American Law Division
Same-Sex Marriages: Legal Issues
In 2003, state courts began to address the constitutionality of state statutes
limiting marriage to heterosexual couples. Massachusetts became the first state to
legalize marriage between same-sex couples on May 17, 2004, after the state’s
highest court held that denying gay and lesbian couples the right to marry violated the
state’s constitution. Subsequently, state courts in New Jersey, California, and
Connecticut have reached similar conclusions. In addition, the California and
Connecticut Supreme Courts found that domestic partnership/civil union laws are not
the constitutional equivalent of civil marriage. However, in New Jersey, the court left
open the option for the state legislature to provide a parallel statutory structure (i.e.,
civil unions) in which same-sex couples would enjoy the same rights, privileges, and
burdens as married opposite-sex couples.
Currently, federal law does not recognize same-sex marriages. This report
discusses the Defense of Marriage Act (DOMA), P.L. 104-199, which prohibits
federal recognition of same-sex marriages and allows individual states to refuse to
recognize such marriages performed in other states, and discusses the potential legal
challenges to DOMA. Moreover, this report summarizes the legal principles applied
in determining the validity of a marriage contracted in another state, surveys the
various approaches employed by states to prevent same-sex marriage, and examines
House and Senate resolutions introduced in previous Congresses proposing a
constitutional amendment and limiting federal courts’ jurisdiction to hear or
determine any question pertaining to the interpretation of the DOMA.
In troduction ......................................................1
Defense of Marriage Act (DOMA)....................................3
Potential Constitutional Challenges to DOMA...........................4
Full Faith and Credit Clause.....................................4
Substantive Due Process (Right to Privacy).........................6
Interstate Recognition of Marriage....................................6
State Constitutional Amendments Limiting Marriage.................15
State “Civil Union” Laws......................................20
Table 1. State Statutes Defining “Marriage”............................25
Same-Sex Marriages: Legal Issues
Massachusetts became the first state to legalize marriage between same-sex
couples on May 17, 2004, as a result of a November 2003 decision by the state’s
highest court that denying gay and lesbian couples the right to marry violated the123
state’s constitution. Similarly, state supreme courts in New Jersey, California, and
Connecticut4 found that denying same-sex couples the right to marry violated their
state constitutions. In addition, the California and Connecticut courts found that
parallel statutory structures including domestic partnerships and/or civil unions were
not the constitutional equivalent of civil marriage. However, in New Jersey, the court
left open the option for the state legislature to provide a parallel statutory structure
which would allow same-sex couples to enjoy the same rights, privileges, and
burdens as married opposite-sex couples.5
Currently neither federal law nor any state law affirmatively allows gay or
lesbian couples to marry. On the federal level, Congress enacted the Defense of
Marriage Act (DOMA) to prohibit recognition of same-sex marriages for purposes678
of federal enactments. States, such as Alabama, Alaska, Arkansas, Arizona,
1 Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003).
2 Lewis v. Harris, 908 A.2d 196 (NJ 2006).
3 In re Marriage Cases, 183 P.3d 384 (Ca. 2008).
4 Kerrigan v. Commissioner of Public Health, 957 A.2d. 407 (Conn. 2008).
5 Lewis v. Harris, 908 A.2d 196 (NJ 2006).
6 Voters approved the constitutional ban on June 6, 2006.
7 Voters approved the constitutional ban on November 2, 2004.
8 Voters approved the constitutional ban on November 4, 2008.
California,9 Colorado,10 Florida,11 Georgia,12 Hawaii, Idaho,13 Kansas,14 Kentucky,15
Louisiana,16 Michigan,17 Mississippi,18 Missouri,19 Montana,20 Nebraska,21 Nevada,
North Dakota,22 Ohio,23 Oklahoma,24 Oregon,25 South Carolina,26 South Dakota,27
9 Voters approved the constitutional ban on November 4, 2008. This vote appears to
overrule the California State Supreme’s Court decision in In re Marriage Cases, 183 P.3d
384 (Ca. 2008) granting same-sex couples the right to marry. Due to the constitutional
amendment’s passage, questions remain regarding the status of same-sex marriages which
occurred after the court’s decision. Legal challenges have been filed seeking an injunction
against the amendment’s implementation due to procedural defects.
10 Voters approved the constitutional ban on November 7, 2006.
11 Voters approved the constitutional ban on November 4, 2008.
12 Voters approved the constitutional ban on November 2, 2004.
13 Voters approved the constitutional ban on November 7, 2006.
14 Voters approved the constitutional ban on April 5, 2005.
15 Voters approved the constitutional ban on November 2, 2004.
16 Voters approved the constitutional ban on September 18, 2004. The Louisiana Supreme
Court reversed a state district judge’s ruling striking down the amendment on the grounds
that it violated a provision of the state constitution requiring that an amendment cover only
one subject. The Court found that each provision of the amendment is germane to the single
object of defense of marriage and constitutes an element of the plan advanced to achieve this
object. Forum for Equality PAC v. McKeithen, 893 So.3d 715 (La. 2005). Similarly, the
Georgia Supreme Court reversed a lower court’s ruling. Perdue v. O’Kelley, 280 GA 732
(GA. 2006). Other states that also have single-subject requirements, Ohio and Oklahoma,
may face similar legal challenges.
17 Voters approved the constitutional ban on November 2, 2004.
18 Voters approved the constitutional ban on November 2, 2004.
19 Voters approved the constitutional ban on August 3, 2004.
20 Voters approved the constitutional ban on November 2, 2004.
21 A U.S. district court judge struck down Nebraska’s ban on gay marriage, saying that the
ban “imposes significant burdens on both the expressive and intimate associational rights”
of gays “and creates a significant barrier to the plaintiffs’ right to petition or to participate
in the political process.” Citizens for Equal Protection Inc., v. Bruning, 368 F.Supp.2d 980th
(D. NE May 12, 2005). However, the 8 Circuit Court of Appeals reversed finding that the
Nebraska’s constitutional amendment “and other laws limiting the state-recognized
institution of marriage to heterosexual couples are rationally related to legitimate state
interest and therefore do not violate the Constitution of the United States.” Citizens forth
Equal Protection Inc., v. Bruning, 455 F.3d 859 (8 Cir. 2006).
22 Voters approved the constitutional ban on November 2, 2004.
23 Voters approved the constitutional ban on November 2, 2004.
24 Voters approved the constitutional ban on November 2, 2004.
25 Voters approved the constitutional ban on November 2, 2004. On April 4, 2005, the
Oregon Supreme Court invalidated Multnomah County same-sex marriages, stating that the
marriage licenses were issued to same-sex couples without authority and were void at the
Tennessee,28 Texas,29 Utah, Virginia,30 and Wisconsin31 have enacted state
constitutional amendments limiting marriage to one man and one woman. Seventeen
other states have enacted statutes limiting marriage in some manner.32 Table 1
summarizes these various approaches.
Defense of Marriage Act (DOMA)33
In 1996, Congress approved the DOMA “[t]o define and protect the institution
of marriage.” It allows all states, territories, possessions, and Indian tribes to refuse
to recognize an act of any other jurisdiction that designates a relationship between
individuals of the same sex as a marriage. In part, DOMA states:
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 such34
Furthermore, DOMA goes on to declare that the terms “marriage” and “spouse,” as
used in federal enactments, exclude homosexual marriage.
In determining the meaning of any Act of Congress, or of any ruling, regulation,
or interpretation of the various administrative bureaus and agencies of the United
States, the word ‘marriage’ means only a legal union between one man and one
woman as husband and wife, and the word ‘spouse’ refers only to a person of the35
opposite sex who is a husband or a wife.
time they were issued. Li v. State, 110 P.3d 91 (Or. 2005).
26 Voters approved the constitutional ban on November 7, 2006.
27 Voters approved the constitutional ban on November 7, 2006.
28 Voters approved the constitutional ban on November 7, 2006.
29 Voters approved the constitutional ban on November 8, 2005.
30 Voters approved the constitutional ban on November 7, 2006.
31 Voters approved the constitutional ban on November 7, 2006.
32 These states are Arizona, California, Delaware, Florida, Illinois, Indiana, Iowa, Maine,
Maryland, Minnesota, New Hampshire, North Carolina, Pennsylvania, Vermont,
Washington, West Virginia, and Wyoming.
33 P.L. 104-199, 110 Stat. 2419 (codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C).
34 28 U.S.C. §1738C.
35 1 U.S.C. § 7.
Potential Constitutional Challenges to DOMA36
Full Faith and Credit Clause
Some argue that DOMA is an unconstitutional exercise of Congress’s authority
under the full faith and credit clause of the U.S. Constitution.37 Article IV, section
Full Faith and Credit shall be given in each State to the public Acts, Records, and
judicial Proceedings of every other State; And the Congress may by general
36 It should be noted that a federal bankruptcy court in the Western District of Washington
found DOMA constitutional. Two American women, married in British Columbia, Canada
filed a joint bankruptcy petition in Tacoma, challenging the definitional part of DOMA. The
court ruled that there was no fundamental constitutional right to marry someone of the same
sex and that DOMA did not violate the Fourth, Fifth or Tenth amendments, nor the
principles of comity. In re Lee Kandu and Ann C. Kandu, No. 03-51312 (Western District
of Washington, August 17, 2004). This decision is not binding on other courts.
In Wilson v. Ake, a same-sex couple sought a declaration that their marriage was valid
for federal and Florida law purposes. To issue such a declaration, the court would have had
to invalidate both the federal DOMA and the Florida statutes defining marriage the same
way and expressly forbidding courts to recognize same-sex marriages from other states. The
Wilson court declined to invalidate any of the relevant statutes finding that (1) DOMA did
not violate the Full Faith and Credit Clause; (2) the right to marry a person of the same sex
was not a fundamental right guaranteed by the Due Process Clause; (3) homosexuals were
not a suspect class warranting strict scrutiny of equal protection claim; (4) under a rational
basis analysis, DOMA did not violate equal protection or due process guarantees; and (5)
the Florida statute prohibiting same-sex marriage is constitutional. Wilson v. Ake, 354
F.Supp.3d 1298 (M.D. Florida 2005). Moreover, the Wilson court found that it was bound
by the U.S. Supreme Court’s decision in Baker v. Nelson, 191 N.W.2d 185 (1971), appeal
dismissed, 409 U.S. 810 (1972).
In Baker v. Nelson, two adult males’ application for a marriage license was denied by
the county clerk because the petitioners were of the same sex. The plaintiffs appealed to the
Minnesota Supreme Court. Plaintiffs argued that Minnesota Statute § 517.08, which did not
authorize marriage between persons of the same sex, violated the First, Eighth, Ninth and
Fourteenth Amendments of the U.S. Constitution. The Minnesota Supreme Court rejected
plaintiffs’ assertion that “the right to marry without regard to the sex of the parties is a
fundamental right of all persons” and held that § 517.08 did not violate the Due Process
Clause or Equal Protection Clause. 191 N.W.2d at 186-87.
The plaintiffs then appealed the Minnesota Supreme Court’s ruling to the U.S.
Supreme Court pursuant to 28 U.S.C. § 1257(2). Under 28 U.S.C. § 1257, the Supreme
Court has discretion to refuse to adjudicate the case on its merits. The Supreme Court
ultimately dismissed the appeal “for want of a substantial federal question.” Baker, 409 U.S.
The Wilson court, relying on Hicks v. Miranda (422 U.S. 332 (1975)), found that a
dismissal for lack of a substantial federal question constitutes an adjudication on the merits
that is binding on lower federal courts.
37 U.S. Const. art. IV, § 1.
Laws prescribe the Manner in which such Acts, Records and Proceedings shall
be proved, and the Effect thereof.
Opponents argue that, although Congress has authority to pass laws that enable
acts, judgments and the like to be given effect in other states, it has no constitutional
power to pass a law permitting states to deny full faith and credit to another state’s
laws and judgments.38 Conversely, some argue that DOMA does nothing more than39
simply restate the power granted to the states by the Full Faith and Credit Clause.
While there is no judicial precedent on this issue, it would appear that Congress’s
general authority to “prescribe...the effect” of public acts arguably gives it discretion
to define the “effect” so that a particular public act is not due full faith and credit.
It would appear that the plain reading of the clause would encompass both expansion
Congress’s authority to legislate in this manner under the Full Faith and Credit
Clause, if the analysis set out above is accepted, does not conclude the matter. There
are constitutional constraints upon federal legislation. One that is relevant is the
Equal Protection Clause and the effect of the Supreme Court’s decision in Romer v.
Evans,41 which struck down under the Equal Protection Clause a referendum-adopted
provision of the Colorado Constitution, which repealed local ordinances that
provided civil-rights protections for gay persons and which prohibited all
governmental action designed to protect homosexuals from discrimination. The
Court held that, under the Equal Protection Clause, legislation adverse to
homosexuals was to be scrutinized under a “rational basis” standard of review.42 The
classification failed to pass even this deferential standard of review, because it
imposed a special disability on homosexuals not visited on any other class of people
and it could not be justified by any of the arguments made by the state. The state
argued that its purpose for the amendment was two-fold: (1) to respect the freedom
of association rights of other citizens, such as landlords and employers who objected
to homosexuality; and (2) to serve the state’s interest in conserving resources to fight
discrimination against other protected groups.
DOMA can be distinguished from the Colorado amendment. DOMA’s
legislative history indicates that it was intended to protect federalism interests and
state sovereignty in the area of domestic relations, historically a subject of almost
38 See 142 Cong. Rec. S5931-33 (June 6, 1996) (statement introducing Professor Laurence
H. Tribe’s letter into the record concluding that DOMA “would be an unconstitutional
attempt by Congress to limit the full faith and credit clause of the Constitution.”).
39 See Paige E. Chabora, Congress’ Power Under the Full Faith and Credit Clause and the
Defense of Marriage Act of 1996, 76 Neb. L. Rev. 604, 621-35 (1997).
40 See e.g., Wilson v. Ake, 354 F.Supp.2d at 1302 (finding that DOMA was an appropriate
exercise of Congress’s power to regulate conflicts between the laws of different states, and
holding otherwise would create “a license for a single State to create national policy.”).
41 517 U.S. 620 (1996).
exclusive state concern. Moreover, it permits but does not require states to deny
recognition to same-sex marriages in other states, affording states with strong public
policy concerns the discretion to effectuate that policy. Thus, it can be argued that
DOMA is grounded not in hostility to homosexuals but in an intent to afford the
states the discretion to act as their public policy on same-sex marriage dictates.
Substantive Due Process (Right to Privacy)
Another possibly applicable constitutional constraint is the Due Process Clause
of the Fourteenth Amendment and the effect of the Supreme Court’s decision in
Lawrence v. Texas,43 which struck down under the Due Process Clause a state statute
criminalizing certain private sexual acts between homosexuals. The Court held that
the Fourteenth Amendment’s Due Process privacy guarantee extends to protect
consensual sex between adult homosexuals. The Court noted that the Due Process
right to privacy protects certain personal decisions from governmental interference.
These personal decisions include issues regarding contraceptives, abortion, marriage,
procreation, and family relations.44 The Court extended this right to privacy to cover
adult consensual homosexual sodomy.
It is currently unclear what impact, if any, the Court’s decision in Lawrence will
have on legal challenges to laws prohibiting same-sex marriage. On the one hand,
this decision can be viewed as affirming a broad constitutional right to sexual
privacy. Conversely, the Court distinguished this case from cases involving minors
and “whether the government must give formal recognition to any relationship that
homosexual persons seek to enter.”45 Courts may seek to distinguish statutes
prohibiting same-sex marriage from statutes criminalizing homosexual conduct.
Courts may view the preservation of the institution of marriage as sufficient
justification for statutes banning same-sex marriage. Moreover, courts may view the
public recognition of marriage differently than the sexual conduct of homosexuals
in the privacy of their own homes.
Interstate Recognition of Marriage
DOMA opponents take the position that the Full Faith and Credit Clause would
obligate states to recognize same-sex marriages contracted in other states in which
they are authorized. This conclusion is far from evident as this clause applies
principally to the interstate recognition and enforcement of judgments.46 It is settled
43 539 U.S. 558 (2003). For a legal analysis of this decision, refer to CRS Report RL31681,
Homosexuality and the Constitution: A Legal Analysis of the Supreme Court Ruling in
Lawrence v. Texas by Jody Feder.
44 Lawrence v. Texas, 539 U.S. 558 (2003).
45 Id. at 2484. See e.g., Wilson v. Ake, 354 F.Supp.2d at 1306 (declining to interpret
Lawrence as creating a fundamental right to same-sex marriage).
46 See H.Rept. 104-664, 1996 U.S.C.C.A.N. 2905 (stating that “marriage licensure is not a
judgment.”). See also, 28 U.S.C. § 1738 (defining which acts, records and judicial
law that final judgments are entitled to full faith and credit, regardless of other states’
public policies, provided the issuing state had jurisdiction over the parties and the
subject matter.47 The Full Faith and Credit Clause has rarely been used by courts to
validate marriages because marriages are not “legal judgments.”
Questions concerning the validity of an out-of-state marriage are generally
resolved without reference to the Full Faith and Credit Clause. In the legal sense,
marriage is a “civil contract” created by the state which establishes certain duties and
confers certain benefits.48 Validly entering the contract creates the marital status; the
duties and benefits attached by a state are incidents of that status. As such, the
general tendency, based on comity rather than on compulsion under the Full Faith
and Credit Clause, is to recognize marriages contracted in other states even if they
could not have been celebrated in the recognizing state.
The general rule of validation for marriage is to look to the law of the place
where the marriage was celebrated. A marriage satisfying the contracting state’s
requirements will usually be held valid everywhere.49 Many states provide by statute
that a marriage that is valid where contracted is valid within the state. This “place
of celebration” rule is then subject to a number of exceptions, most of which are
narrowly construed. The most common exception to the “place of celebration” rule
is for marriages deemed contrary to the forum’s strong public policy. Several states,
such as Connecticut,50 Idaho,51 Illinois,52 Kansas,53 Missouri,54 Pennsylvania,55 South
Carolina,56 and Tennessee57 provide an exception to this general rule by declaring
out-of-state marriages void if against the state’s public policy or if entered into with
the intent to evade the law of the state. This exception applies only where another
proceedings are afforded full faith and credit).
47 Restatement (Second) of Conflict of Laws § 107.
48 On the state level, common examples of nonnegotiable marital rights and obligations
include distinct income tax filing status; public assistance such as health and welfare
benefits; default rules concerning community property distribution and control; dower,
curtesy and inheritance rights; child custody, child agreements; name change rights; spouse
and marital communications privileges in legal proceedings; and the right to bring wrongful
death, and other legal actions.
49 See 2 Restatement (Second) of Conflict of Laws § 283.
50 Conn. Gen Stat. Ann. § 45a-803-4.
51 Idaho Code § 32-209.
52 750 Ill. Comp. Stat. 5/201.
53 Kan. Stat. Ann. § 23-101.
54 Mo. Rev. Stat. § 451.022.
55 Pa. Stat. Ann. tit. 23 § 1704.
56 S.C. Code Ann. § 20-1-10.
57 Tenn. Code Ann. § 36-3-113.
state’s law violates “some fundamental principle of justice, some prevalent
conception of good morals, some deep-rooted tradition of the common weal.”58
Section 283 of the Restatement (Second) of Law provides:
(1) The validity of marriage will be determined by the local law of the state
which, with respect to the particular issue, has the most significant relationship
to the spouses and the marriage under the principles stated in § 6.
(2) A marriage which satisfies the requirements of the state where the marriage
was contracted will everywhere be recognized as valid unless it violates the
strong public policy of another state which had the most significant relationship
to the spouses and the marriage at the time of the marriage.
Massachusetts, unlike 26 states and the federal government, has not adopted a
“defense of marriage statute” defining marriage as a union between a man and59
woman. On April 11, 2001, a Boston-based, homosexual rights group, Gay and
Lesbian Advocates and Defenders (GLAD) filed suit against the Massachusetts
Department of Public Health on behalf of seven same-sex couples. The plaintiffs
claimed that “refusing same-sex couples the opportunity to apply for a marriage
license” violates Massachusetts’ law and various portions of the Massachusetts
Constitution. GLAD’s brief argued the existence of a fundamental right to marry
“the person of one’s choosing” in the due process provisions of the Massachusetts
Constitution and asserted that the marriage laws, which allow both men and women60
to marry, violate equal protection provisions.
The Superior Court rejected the plaintiffs’ arguments after exploring the
application of the word marriage, the construction of marriage statutes and finally,
the historical purpose of marriage. The trial court found that based on history and the
actions of the people’s elected representatives, a right to same-sex marriage was not
so rooted in tradition that a failure to recognize it violated fundamental liberty, nor
was it implicit in ordered liberty.61 Moreover, the court held that in excluding same-
sex couples from marriage, the Commonwealth did not deprive them of substantive
58 Loucks v. Standard Oil Co., 120 N.E. 198, 202 (N.Y. 1918)(defining public policy as a
valid reason for closing the forum to suit); see e.g. Shea v. Shea, 63 N.E.2d 113 (N.Y.
1945)(finding that a common law marriage validly contracted in another state should not be
recognized as common law marriage in New York as it was prohibited by statute).
59 It should be noted that, prior to the Goodridge case, in Adoption of Tammy, 619 N.E. 2d
315 (Mass. 1993), the Supreme Judicial Court had interpreted “marriage” to mean “the
union of one man and one woman.”
60 Hillary Goodridge v. Dept. of Public Health, 14 Mass. L. Rptr. 591 (Suffolk County,
Super. Ct. May 7, 2002).
due process, liberty, or freedom of speech or association.62 The court went on to find
that limiting marriage to opposite-sex couples was rationally related to a legitimate
state interest in encouraging procreation.63
On November 18, 2003, the Massachusetts Supreme Judicial Court overruled
the lower court and held that, under the Massachusetts Constitution, the
Commonwealth could not deny the protections, benefits, and obligations attendant
on marriage to two individuals of the same sex who wish to marry.64 The court
concluded that interpreting the statutory term “marriage” to apply only to male-
female unions lacked a rational basis for either due process or equal protection
purposes under the state’s constitution. Moreover, the court found that such a
limitation was not justified by the state’s interest in providing a favorable setting for
procreation and had no rational relationship to the state’s interests in ensuring that
children be raised in optimal settings and in conservation of state and private
financial resources.65 The court reasoned that the laws of civil marriage did not
privilege procreative heterosexual intercourse, nor contain any requirement that
applicants for marriage licenses attest to their ability or intention to conceive children
by coitus. Moreover, the court reasoned that the state has no power to provide
varying levels of protection to children based on the circumstances of birth. As for
the state’s interest in conserving scarce state and private financial resources, the court
found that the state failed to produce any evidence to support its assertion that same-
sex couples were less financially interdependent than opposite-sex couples. In
addition, Massachusetts marriage laws do not condition receipt of public and private
financial benefits to married individuals on a demonstration of financial dependence
on each other.66 As this decision is based on the Commonwealth’s constitution, it is
not reviewable by the U.S. Supreme Court. The court stayed its decision for 180
days to give the Legislature time to enact legislation “as it may deem appropriate in
light of this opinion.”67
On February 3, 2004, the court ruled, in an advisory opinion to the state senate,
that civil unions are not the constitutional equivalent of civil marriage.68 The court
reasoned that the establishment of civil unions for same-sex couples would create
64 Hillary Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003).
65 Id. at 964 (stating that it “cannot be rational under our laws, and indeed is not permitted,
to penalize children by depriving them of state benefits because the state disapproves of
their parents’ sexual orientation.”)
66 Id. at 965.
67 Id. at 968.
68 The state Senate asked the court whether it would be sufficient for the legislature to pass
a law allowing same-sex civil unions that would confer “all of the benefits, protections,
rights and responsibilities of marriage.”
a separate class of citizens by status discrimination which would violate the equal
protection and due process requirements of the Constitution of the Commonwealth.69
Following the Massachusetts decision, state Supreme Courts in New Jersey,
California, and Connecticut addressed the issue of same-sex marriage.70 The
California and Connecticut cases posed a slightly different question than the one
presented in Massachusetts, as California and Connecticut legislatures enacted
parallel statutory schemes in the form of domestic partnerships and civil unions
granting the states’ same-sex couples the same rights and benefits as well as the
obligations of civil marriage. As such, the legal issue before the California and
Connecticut Supreme Courts was whether, in light of both marriage and domestic
partnership/civil union statutes, the failure to designate the official relationship of
same-sex couples as marriage violates the states’ constitutions.71
While the California Supreme Court held that the privacy, due process, and
equal protection provisions of the state’s constitution guarantee the basic right of
civil marriage to all individuals and couples regardless of their sexual orientation,72
the Connecticut Supreme Court focused on the equal protection provision of the state
constitution.73 In addressing the privacy and due process challenges, the California
majority first looked at the nature and scope of the “right to marry.” Relying on
judicial precedent and legislative history,74 the court concluded that the fundamental
nature of the substantive rights embodied in the right to marry, and their central
importance to one’s opportunity to live a happy, meaningful, and satisfying life as a
full member of society, require that the state constitution be interpreted to protect this
right not to be “eliminated or abrogated by the Legislature or by the electorate
through the statutory initiative process.”75 In reaching its conclusion, the court
discussed the societal benefits of marriage, including child welfare and the role that
marriage plays in “facilitating a stable family setting.”76 Furthermore, the court
described marriage as the “basic unit” or “building block” of society.77 The court
noted that while marriage serves a vital societal interest, judicial precedent also
demonstrated that the right to marry is an “integral component of an individual’s
69 Opinions of the Justices to the Senate, SJC-01963, 802 N.E.2d 565 (Mass. 2004).
70 As these decisions are based exclusively on state constitutional provisions, they are non-
reviewable by the United States Supreme Court.
71 See, Kerrigan v. Commissioner of Public Health, 957 A.2d 407, 412 (Conn. 2008)(stating
“... because the institution of marriage carries with it a status and significance that the newly
creatly classification of civil unions does not embody, the segregation of heterosexual and
homosexual couples into separate institutions constitutes a cognizable harm.”).
72 In re Marriage Cases, 183 P.3d 384 (2008).
73 Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. 2008).
74 See, 183 P.3d 384, 407-410 (discussing the legislative history of marriage statutes).
75 Id. at 399.
76 Id. at 423.
interest in personal autonomy” protected by the privacy and liberty interest provisions
of the California constitution.78
While the California court acknowledged that the constitutional right to marry
did not obligate the state to afford specific tax or other governmental benefits on the
basis of a couple’s family relation, the right to marry does “obligate the state to take
affirmative action to grant official, public recognition to the couple’s relationship as
a family.”79 Thus, the court concluded that the California constitution guarantees
same-sex couples the same “substantive constitutional rights as opposite-sex couples
to choose one’s life partner and enter with that person in a committed, officially
recognized, and protected family relationship that enjoys all of the constitutionally
based incidents of marriage.”80
In addressing the equal protection question, the California and Connecticut
Supreme Courts used different standards of review. In a matter of first impression,
the California Supreme Court determined that strict scrutiny was the appropriate
standard of review for sexual orientation discrimination. According to the California
court, classification or discrimination on the basis of sexual orientation is analogous
to race, gender,81 or religious discrimination, as these types of classifications are
based on characteristics that bear no relationship to one’s ability to perform or
contribute to society.82 As such, the California court expanded protection against
sexual orientation discrimination by determining that strict scrutiny was the
Under the heightened standard of strict scrutiny, the state had to establish (1) a
compelling state interest, and (2) that the differential treatment was necessary to
achieve the compelling state interest. The court concluded that the designation of
“marriage” would not have an impact on opposite-sex couples. However, the court
concluded that a separate and differently named family for same-sex couples would
be harmful to the couples as well as their offspring due to a possible perception that
such a union is of a “lesser stature” in comparison to relationships of opposite-sex
couples. The court concluded that the state’s domestic partnership law provides
insufficient protections to same-sex couples. Specifically, the court stated that
80 Id. at 433.
81 Under the federal law, classification or discrimination based on gender is subject to
intermediate scrutiny as opposed to strict scrutiny. However, California courts have
employed strict scrutiny analysis, thus guaranteeing greater protection against gender
discrimination. For example, in Woods v. Shewwry, the court employed a strict scrutiny
analysis in finding unconstitutional a state statute that funded certain domestic violence
programs only for female victims and their children. 2008 WL 4560832 (Cal. App. 3 Dist.
October 14, 2008).
82 See, 183 P.3d 384, 444 (rejecting the argument that a group’s current political
powerlessness is a prerequisite in the classification of “suspect” class by stating that “it
would be impossible to justify the numerous decisions that continue to treat sex, race, and
religion as suspect classifications.”).
“[r]etaining the designation of marriage exclusively for opposite-sex couples and
providing only a separate and distinct designation for same-sex couples may well
have the effect of perpetuating a more general premise — now emphatically rejected
by this state — that gay individuals and same-sex couples are in some respects
‘second-class citizens.’” As such, the court found such a distinction unconstitutional
under the California constitution.83
The Connecticut Supreme Court agreed with the California Supreme Court’s
finding that laws discriminating against homosexuals must be subjected to a higher
level of scrutiny. However, the Connecticut court declined to use a strict scrutiny
analysis. Instead, the court used a variety of factors to determine that sexual
orientation is a quasi-suspect class analogous to gender, thus warranting an
intermediate scrutiny analysis.84 In exploring the nature of homosexual identity, the
history of societal views regarding homosexuality, and the limitation of political
power possessed by homosexuals, the court found that homosexuals suffered a
history of invidious discrimination based on characteristics not within their control
that bear “no relation to [their] ability to perform or contribute to society.”85
Therefore, the court concluded that homosexuals are a quasi-suspect class requiring
the state to advance a sufficiently persuasive justification for denying same-sex
couples the right to marry. As in the Massachusetts and California decisions, the
Connecticut Supreme Court rejected the state’s justifications of promoting uniformity
and preserving the traditional definition of marriage.86
Similarly, on October 25, 2006, the New Jersey Supreme Court held that the
state’s constitution requires that same-sex couples be granted the same legal rights
as married heterosexual couples. However, the court declined to label those rights
and instead ordered the state legislature to amend its marriage statutes or enact a new
statutory scheme granting the state’s same-sex couples the rights of married couples
within 180 days.87
83 On November 4, 2008, voters approved a constitutional amendment limiting the validity
and recognition of “marriages” to heterosexual couples. It would appear that this
constitutional amendment would overrule the California Supreme Court’s decision.
However, legal challenges have been filed seeking an injunction against the amendment’s
implementation. In addition, questions have arisen regarding the status of same-sex couples
who married after the state supreme court’s decision.
84 It was also a matter of first impression for the Connecticut court to classify sexual
orientation as a quasi-suspect class.
85 2008 WL 4530885 at *10.
86 Id. at *40.
87 Lewis v. Harris, 908 A.2d 196 (NJ 2006) (stating that “the name to be given to the
statutory scheme that provides full rights and benefits to same-sex couples, whether
marriage or some other term, is a matter left to the democratic process.”). As this decision
is based solely on New Jersey’s state constitution, it is not reviewable by the U.S. Supreme
In its 4-3 decision,88 the majority separated the plaintiffs’ equal protection
argument into two questions: (1) whether committed same-sex couples have a
constitutional right to the benefits and privileges afforded to married heterosexual
couples and (2) if so, whether they have the constitutional right to have their
permanent committed relationship recognized by the name “marriage.”89 In
addressing the first question, the court discussed New Jersey’s recent history of
passing laws providing benefits to same-sex couples. For example, the state forbids
sexual orientation discrimination and allows same-sex couples to become foster
parents as well as adopt children. The court concluded that the state’s statutes and
judicial opinions provide committed same-sex couples with a strong interest in
equality of treatment.90 Moreover, the court concluded that although the state’s
Domestic Partnership Act provided same-sex couples with some important rights, the
act failed to “bridge the inequality gap between committed same-sex couples and
married opposite-sex couples.”91
The court held that the state has no legitimate interest in denying the benefits
and privileges of marriage to same-sex couples.92 In assessing the public need for
denying committed same-sex couples the full benefits and privileges that flow from
marriage, the court rejected the state’s argument of uniformity with other states and
concluded that the disparate treatment of committed same-sex couples directly
disadvantages their children. Moreover, the court concluded that there “is no rational
basis for, on the one hand, giving gays and lesbians full civil rights in their status as
individuals, and, on the other, giving them an incomplete set of rights when they
follow the inclination of their sexual orientation and enter into committed same-sex
relationships.”93 As such, the court found that denying committed same-sex couples
the financial and social benefits and privileges given to married heterosexual couples
bears no substantial relationship to a legitimate government purpose.
However, the court held that there is no fundamental due process right to same-
sex marriage encompassed within the concept of “liberty” guaranteed by the state
constitution. In reaching its decision, the court adopted the general standard followed
by the U.S. Supreme Court in construing the Due Process Clause of the 14th
Amendment of the U.S. Constitution. The court found that there was no legal or
historical basis for same-sex marriage nor anything to suggest that the framers of the
federal or state constitutions considered it a fundamental right to be afforded special
protection. The court emphasized the importance of tradition to substantive due
88 This was an unanimous decision as to providing benefits and protections to same-sex
couples. The dissent concurred in granting benefits and protections but dissented in that
they believed that the name “marriage” was also required. Id.
89 Id. at 212.
90 Id. at 215.
92 Id. at 218 (stating that “in light of the policies reflected in the statutory and decisional
laws of the state, we cannot find a legitimate public need for an unequal legal scheme of
benefits and privileges that disadvantages committed same-sex couples.”).
93 Id. at 217.
process analysis — and held that, according to tradition, the right to marry a same-
sex partner is not “deeply rooted in our nation’s history.”94 As a result, the court
declined to find a fundamental right to same-sex marriage. Instead, the court ordered
the legislature to provide to committed same-sex couples the “full rights and benefits
enjoyed by heterosexual couples.”95 The court provided two options to the
legislature: (1) amend the marriage statutes to include same-sex couples; or (2) enact
a parallel statutory structure by another name, in which same-sex couples would
receive the same rights and benefits as well as the “burdens and obligations of civil
m arri age.”96
Although the aforementioned opinions deal exclusively with a state
constitution,97 an Arizona Court of Appeals, exercising its discretion to accept
jurisdiction based on the issue of first impression, held that the fundamental right to
marry protected by the 14th Amendment of the U.S. Constitution as well as the
Arizona Constitution did not encompass the right to marry a same-sex partner.98
Moreover, the court found that the state had a legitimate interest in encouraging
procreation and child rearing within the marital relationship and limiting that
relationship to opposite-sex couples.
In light of the Supreme Court’s recent decision in Lawrence, the petitioners
argued that the Arizona statute prohibiting same-sex marriages violated their
fundamental right to marry and their right to equal protection under the laws, both of
which are guaranteed by the federal and state constitutions. The Arizona court
rejected the petitioners’ argument that the Supreme Court in Lawrence implicitly
recognized that the fundamental right to marry includes the freedom to choose a
same-sex spouse.99 The court viewed the Lawrence language as acknowledging a
homosexual person’s “right to define his or her own existence, and achieve the type
of individual fulfillment that is the hallmark of a free society, by entering a
homosexual relationship.”100 However, the court declined to view the language as
94 Id. at 206.
95 Id. at 223.
96 Id. The New Jersey legislature passed a civil union bill on December 15, 2006, which
became effective February 2007.
97 The Maryland Supreme Court recently ruled that limiting marriage to a man and a woman
does not discriminate against gay couples or deny them constitutional rights. In addition,
the court stated that the state’s prohibition on same-sex marriage promotes the state’s
interest in heterosexual marriage as a means of having and protecting children. Conaway
v. Deane, 932 A.2d 571 (MD 2007). Similar results have occurred in New York and
Washington. See, Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006); Anderson v. King
County, 138 P.3d 963 (Wash. 2006). There are approximately 20 lawsuits filed that seek
same-sex marriage rights under state constitutions. These states include California,
Connecticut, Florida, Indiana, Nebraska, and Oregon.
98 Standhardt v. Superior Court of the State of Arizona, 77 P.3d 451 (Ariz. Ct. App. 2003).
99 Id. at 457.
stating that such a right includes the choice to enter a state-sanctioned, same-sex
m arri age. 101
As such, the court reviewed the constitutionality of the challenged statutes using
a rational basis analysis and found that the state has a legitimate interest in
encouraging procreation and child-rearing within the marital relationship, and that
limiting marriage to opposite-sex couples is rationally related to that interest.
Moreover, the court said that while the state’s reasoning is debatable, it is not
arbitrary or irrational. Consequently, the court upheld the challenged statutes.
State Constitutional Amendments Limiting Marriage
Marriage is inherently a unique relationship between a man and a woman. As a
matter of public policy, this state has a special interest in encouraging,
supporting, and protecting this unique relationship in order to promote, among
other goals, the stability and welfare of society and its children. A marriage
contracted between individuals of the same sex is invalid in this state.
Marriage is a sacred covenant, solemnized between a man and a woman, which,
when the legal capacity and consent of both parties is present, establishes their
relationship as husband and wife, and which is recognized by the state as a civil
No marriage license shall be issued in the State of Alabama to parties of the same
The State of Alabama shall not recognize as valid any marriage of parties of the
same sex that occurred or was alleged to have occurred as a result of the law of
any jurisdiction regardless of whether a marriage license was issued.
The State of Alabama shall not recognize as valid any common law marriage of
parties of the same sex.
A union replicating marriage of or between persons of the same sex in the State
of Alabama or in any other jurisdiction shall be considered and treated in all
respects as having no legal force or effect in this state and shall not be recognized102
by this state as a marriage or other union replicating marriage.
Marriage consists only of the union of one man and one woman. Legal status for
unmarried persons which is identical or substantially similar to marital status
101 See also, Morrison v. Sadler, 2003 WL 23119998 (Ind. Super. May 7, 2003)(holding that
the state’s law “promotes the state’s interest in encouraging procreation to occur in a context
where both biological parents are present to raise the child.”); Lewis v. Harris, 2003 WL
23191114 (N.J.Super.L. November 5, 2003)(holding that the right to marry does not include
a fundamental right to same-sex marriage).
102 2005 Ala. Acts 35.
shall not be valid or recognized in Arkansas, except that the Legislature may
recognize a common law marriage from another state between a man and a
woman. The Legislature has the power to determine the capacity of persons to
marry, subject to this amendment, and the legal rights, obligations, privileges and103
immunities of marriage.
Only a union of one man and one woman shall be valid or recognized as marriage104
in this state.
Only marriage between a man and a woman is valid and recognized in105
Only a union of one man and one woman shall be valid or recognized as a106
marriage in this state.
Inasmuch as marriage is the legal union of only one man and one woman as
husband and wife, no other legal union that is treated as marriage or the107
substantial equivalent thereof shall be valid or recognized.
This state shall recognize as marriage only the union of man and woman.
Marriages between persons of the same sex are prohibited in this state. No union
between persons of the same sex shall be recognized by this state as entitled to
the benefits of marriage. This state shall not give effect to any public act, record
or judicial proceeding of any other state or jurisdiction respecting a relationship
between persons of the same sex that is treated as a marriage under the laws of
such other state or jurisdiction. The courts of this state shall have no jurisdiction
to grant a divorce or separate maintenance with respect to any such relationship
or otherwise to consider or rule on any of the parties’ respective rights arising as108
a result of or in connection with such relationship.
103 AR. CONST. Amend. 83, sec. 1.
104 A.Z. CONST. Art. 30.
105 CA CONST. Art. 1, §7.5.
106 CO. CONST. Art. II, sec. 31.
107 FLA CONST. Art. I.
108 GA. CONST. Art. I., §IV. On May 16, 2006, a state county court stuck down Georgia’s
constitutional amendment on the grounds that it violated a rule that limits ballot questions
to a single subject. O’Kelley, et. al v. Perdue, 2004CV93494 (Super. Ct. Fulton County, GA
May 16, 2006).
A marriage between a man and a woman is the only domestic legal union that109
shall be valid or recognized in this state.
The marriage contract is to be considered in law as a civil contract. Marriage
shall be constituted by one man and one woman only. All other marriages are
declared to be contrary to the public policy of this state and are void.
No relationship, other than a marriage, shall be recognized by the state as110
entitling the parties to the rights or incidents of marriage.
Only a marriage between one man and one woman shall be valid or recognized
as a marriage in Kentucky. A legal status identical or substantially similar to that111
of marriage for unmarried individuals shall not be valid or recognized.
Marriage in the state of Louisiana shall consist only of the union of one man and
one woman. No official or court of the state of Louisiana shall construe this
constitution or any state law to require that marriage or the legal incidents thereof
be conferred upon any member of a union other than the union of one man and
one woman. A legal status identical or substantially similar to that of marriage
for unmarried individuals shall not be valid or recognized. No official or court
of the state of Louisiana shall recognize any marriage contracted in any other
jurisdiction which is not the union of one man and one woman to the state112
To secure and preserve the benefits of marriage for our society and for future
generations of children, the union of one man and one woman in marriage shall
be the only agreement recognized as a marriage or similar union for any113
109 ID CONST. Art. III, § 28.
110 KS CONST. Art. 15, § 16.
111 KY. CONST. § 233A.
112 LA. CONST. Art. XII, §15. The Louisiana Supreme Court reversed a state district
judge’s ruling striking down the amendment on the grounds that it violated a provision of
the state constitution requiring that an amendment cover only one subject. The Court found
that each provision of the amendment is germane to the single object of defense of marriage
and constitutes an element of the plan advanced to achieve this object. Forum for Equality
PAC v. McKeithen, 893 So. 2d 715 (La., 2005).
113 MI. CONST., Art. 1, Sec. 25.
Marriage may take place and may be valid under the laws of this state only
between a man and a woman. A marriage in another state or foreign jurisdiction
between persons of the same gender, regardless of when the marriage took place,
may not be recognized in this state and is void and unenforceable under the laws114
of this state.
That to be valid and recognized in this state, a marriage shall exist only between115
a man and a woman.
Only a marriage between one man and one woman shall be valid or recognized
as a marriage in this state.
Marriage consists only of the legal union between a man and a woman. No other
domestic union, however denominated, may be recognized as a marriage or given
the same or substantially equivalent effect.
Only a union between one man and one woman may be a marriage valid in or
recognized by this state and its political subdivisions. This state and its political
subdivisions shall not create or recognize a legal status for relationships of
unmarried individuals that intends to approximate the design, qualities,
significance or effect of marriage.
Marriage in this state shall consist only of the union of one man and one woman.
Neither this constitution nor any other provision of law shall be construed to
require that marital status or the legal incidents thereof be conferred upon
unmarried couples or groups. A marriage between persons of the same gender
performed in another state shall not be recognized as valid and binding in this
state as of the date of the marriage. Any person knowingly issuing a marriage116
license in violation of this section shall be guilty of a misdemeanor.
114 MISS. CONST. §263-A.
115 MO. CONST., Art. I, Sect. 33.
116 OKLA. CONST. Art. II, §35.
It is the policy of Oregon, and its political subdivisions, that only a marriage
between one man and one woman shall be valid or legally recognized as a117
Marriage in the state of South Carolina, and its political subdivisions, is
exclusively defined as a union between one man and one woman; all other
attempted or putative unions, including those recognized by other jurisdictions118
are void ab initio.
Only marriage between a man and a woman shall be valid or recognized in South
Dakota. The uniting of two or more persons in a civil union, domestic
partnership, or other quasi-marital relationship shall not be valid or recognized119
in South Dakota.
The historical institution and legal contract solemnizing the relationship of one
man and one woman shall be the only legally recognized marital contract in this
state. Any policy or law or judicial interpretation, purporting to define marriage
as anything other than the historical institution and legal contract between one
man and one woman, is contrary to the public policy of this state and shall be
void and unenforceable in Tennessee. If another state or foreign jurisdiction
issues a license for persons to marry and if such marriage is prohibited in this
state by the provisions of this section, then the marriage shall be void and120
unenforceable in this state.
Marriage in this state shall consist only of the union of one man and one woman.
This state or a political subdivision of this state may not create or recognize any121
legal status identical or similar to marriage.
Marriage consists only of the legal union between a man and a woman. No other
domestic status or union, however denominated, between persons is valid or
117 OR. CONST. Art. XV, §5a.
118 SC CONST. Art. XVII, §15.
119 SD CONST. Art. XXI, §9.
120 TN CONST. Art. XI, §3.
121 TX CONST. Art. 1, §32.
recognized or may be authorized, sanctioned or given the same or substantially122
equivalent legal effect as a marriage.
Only a union between one man and one woman may be a marriage valid in or
recognized by this Commonwealth and its political subdivisions. This
Commonwealth and its political subdivisions shall not create or recognize a legal
status for relationships of unmarried individuals that intends to approximate the
design, qualities, significance, or effects of marriage. Nor shall this
Commonwealth or its political subdivisions create or recognize another union,
partnership, or other legal status to which is assigned the rights, benefits,123
obligations, qualities, or effects of marriage.
Only a marriage between one man and one woman shall be valid or recognized
as a marriage in this state. A legal status identical or substantially similar to that
of marriage for unmarried individuals shall not be valid or recognized in this124
State “Civil Union” Laws
Civil union/domestic partnership laws confer certain rights and benefits upon
domestic partners which vary depending on state law. Some of these rights and
benefits include laws relating to title, tenure, descent and distribution, intestate
succession; causes of action related to or dependent upon spousal status,125 including126
an action for wrongful death, emotional distress, or loss of consortium; probate law
and procedure; adoption law and procedure; insurance benefits; workers’
compensation rights; laws relating to medical care and treatment, hospital visitation
and notification; family leave benefits; public assistance benefits under state laws and127
laws relating to state taxes.
122 UTAH CONST. Art. I, §29.
123 VA CONST. Art. I, §15-A.
124 WI CONST. Art. XIII, §3.
125 See Salucco v. Alldredge, 17 Mass. L. Rptr. 498 (Mass. Super., 2004)(exercising its
general equity jurisdiction to dissolve a Vermont civil union).
126 See Langan v. St. Vincent Hosp., 196 Misc.2d 440 (N.Y. Misc. 2003)(finding that New
York’s statutes did not prohibit recognition of a same-sex union nor was such a union
against New York’s public policy on marriage thus recognizing the same-sex partner as a
spouse for purposes of New York’s wrongful death statute), overruled by Langan v. St.
Vincent Hosp., 802 N.Y.S. 2d 476 (NY AD 2 Dept., 2005).
127 Constitutional amendments approved in Arkansas, Georgia, Kansas, Kentucky, Michigan,
North Dakota, Oklahoma, Ohio and Utah contain language which state that a legal status
which is substantially similar to marriage (i.e., civil unions or domestic partnerships) may
not be recognized.
For example, in Vermont, civil union status is available to two persons of the
same sex who are unrelated128 and affords parties “the same benefits, protections and
responsibilities under Vermont law, whether they derive from statute, policy,
administrative or court rule, common law or any other source of civil law, as are
granted to spouses in a marriage.”129 Civil union status is also available in
Connecticut,130 New Hampshire,131 and New Jersey.132 Domestic partnership laws in
California,133 Hawaii,134 New Jersey,135 Oregon,136 and Washington137 also offer some
marital benefits to same-sex couples, although not as comprehensive as Vermont’s
or Connecticut’s civil unions.138
128 Vt. Stat. Ann. Tit. 15 §§ 1203, 5163. See also, “The Vermont Guide to Civil Unions,”
found at [http://www.sec.state.vt.us/otherprg/civilunions/civilunions.html].
129 Vt. Stat. Ann. Tit. 15 § 1204. See also, Salucco v. Alldredge, 17 Mass. L. Rptr. 498
(Mass. Super., 2004)(discussing Vermont’s civil union statutes).
130 Connecticut’s civil union laws became effective October 1, 2005. A Connecticut civil
union is available to an individual at least 18 years of age, of the same sex as the other party
to the civil union, no more closely related to the other than first cousin and not a party to
another civil union or marriage. 2005 Conn. Legis. Serv. P.A. 05-10 (S.S.B. 963).
131 New Hampshire’s civil union laws became effective January 1, 2008. A New Hampshire
civil union is available to an individual at least 18 years of age, of the same sex as the other
party to the civil union, no more closely related to the other than first cousin and not a party
to another civil union or marriage. N.H. Rev. Stat. §§ 457-A:2-4.
132 New Jersey’s civil union laws became effective February 2007.
133 CA Fam. §§ 297, 298 and 299(extending the rights and duties of marriage to persons
registered as domestic partners on and after January 1, 2005). It should be noted that
opposite-sex domestic partners over the age of 62 meeting the eligibility requirements of
Title II of the Social Security Act (SSA) for old age benefits (as defined in 42 U.S.C. §
402(a)), or Title XVI of the SSA for aged individuals (as defined in 42 U.S.C. § 1381) are
eligible to register as domestic partners.
134 Hawaii’s term for domestic partners is “reciprocal beneficiaries.” Reciprocal
beneficiaries must be eighteen years old, ineligible to marry, and unmarried. This status
includes relationships not involving sex or the same residence. Haw. Rev. Stat. § 572C-5;
See also, [http://www.hawaii.gov/health/vital-records/vital-records/reciprocal/index.html]
(discussing Hawaii’s reciprocal beneficiary status).
135 The New Jersey Domestic Partnership Act became effective July 11, 2004, and grants
legal status to same-sex couples and unmarried, opposite-sex couples age 62 or over under
certain New Jersey laws.
136 Oregon’s domestic partnership laws went into effect on January 1, 2008.
137 Washington’s domestic partnership laws went into effect on July 22, 2007.
138 Domestic partnerships also exist at the local level. For example, New York City allows
residents an opportunity to register their domestic partnerships provided that both
individuals are eighteen years of age or older, unmarried or related by blood in a manner that
would bar his or her marriage in New York State, have a close and committed personal
relationship, live together and have been living together on a continuous basis. N.Y.C.
Admin. Code § 3-241. It should be noted that this statute allows both same-sex and
opposite-sex partners to register.
Several bills were introduced in the 110th Congress to address the issue of same-139
sex marriage. For example, on February 6, 2007, H.J.Res. 22, a proposed
constitutional amendment, was introduced. The text of the proposed amendment is
Section 1. Marriage in the United States shall consist only of a legal union of one
man and one woman.
Section 2. No court of the United States or of any State shall have jurisdiction to
determine whether this Constitution or the constitution of any State requires that
the legal incidents of marriage be conferred upon any union other than a legal
union between one man and one woman.
Section 3. No State shall be required to give effect to any public act, record, or
judicial proceeding of any other State concerning a union between persons of the
same sex that is treated as a marriage, or as having the legal incidents of
marriage, under the laws of such other State.
H.R. 107 would have defined marriage for all legal purposes in the District of140
Columbia to consist of the union of one man and one woman. In addition, H.R.
to limit federal court jurisdiction over questions under DOMA.
Although uniformity may be achieved upon ratification of the proposed
constitutional amendments, states would no longer have the flexibility of defining
marriage within their borders. Moreover, states may be prohibited from recognizing
a same-sex marriage performed and recognized outside of the United States.142 It
appears that this amendment would not affect a state’s ability to define civil unions
or domestic partnerships and the benefits conferred upon such.
139 Similar proposed constitutional amendments were introduced in previous Congresses.
S.J.Res. 1, S.J.Res. 13, H.J.Res. 39 and H.J.Res. 91 were introduced in the 109th Congress.
On June 7, 2006, the Senate considered and voted on a required procedural motion regarding
S.J.Res. 1. This motion failed by a vote of 49-48, which prevented further consideration of
S.J.Res. 1. In addition, H.J.Res. 56, S.J.Res. 26, S.J.Res. 30, S.J.Res. 40, and H.J.Res. 106th
were introduced in the 108 Congress. On July 14, 2004, the Senate considered and voted
on a required procedural motion. This motion failed by a vote of 48-50, which prevented
further consideration of S.J.Res. 40. On September 30, 2004, the House failed to pass
H.J.Res. 106 by a vote of 227-186.
140 H.R. 107 was introduced on January 4, 2007.
141 H.R. 724 is identical to H.R. 3313, the Marriage Protection Act of 2004, introduced
during the 108th Congress. On July 22, 2004, the House voted on and passed H.R. 3313. Theth
Senate did not consider the legislation during the 108 Congress. H.R. 1100 was introducedth
in the 109 Congress and contained the same language.
142 It appears that the Netherlands, Belgium, Canada and Spain are the only international
jurisdictions that sanction and/or recognize a same-sex union as a “marriage,” per se.
A further complication in the definition of marriage may arise regarding the
determination of an individual’s gender. As the first official document to indicate a
person’s sex, the designation on the birth certificate “usually controls the sex
designation on all later documents.”143 Some courts have held that sexual identity for
purposes of marriage is determined by the sex stated on the birth certificate,
regardless of subsequent sexual reassignment.144 However, some argue that this
method is flawed, as an infant’s sex may be misidentified at birth and the individual
may subsequently identify with and conform his or her biology to another sex upon
States currently possess the authority to decide whether to recognize an out-of-
state marriage. The Full Faith and Credit Clause has rarely been used by states to
validate marriages because marriages are not “legal judgments.” With respect to
cases decided under the Full Faith and Credit Clause that involve conflicting state
statutes, the Supreme Court generally examines the significant aggregation of
contacts the forum has with the parties and the occurrence or transaction to decide
which state’s law to apply. Similarly, based upon generally accepted legal principles,
states routinely decide whether a marriage validly contracted in another jurisdiction
will be recognized in-state by examining whether it has a significant relationship with
the spouses and the marriage.
Congress is empowered under the Full Faith and Credit Clause of the
Constitution to prescribe the manner that public acts, commonly understood to mean
legislative acts, records, and proceedings shall be proved and the effect of such acts,146
records, and proceedings in other states.
The Supreme Court’s decisions in Romer v. Colorado and Lawrence v. Texas
may present different issues concerning DOMA’s constitutionality. Basically Romer
appears to stand for the proposition that legislation targeting gays and lesbians is
143 Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision Between
Law and Biology, 41 Ariz. L. Rev. 265,309 (1999) (discussing biological characteristics and
144 See e.g., In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002); Littleton v. Prange, 9 S.W.
3d 223 (Tex. App. 1999); but see, M.T. v. J.T., 355 A.2d 204 (N.J. 1976)(determining an
individual’s sexual classification for the purpose of marriage encompasses a mental
component as well as an anatomical component).
145 If a mistake was made on the original birth certificate, an amended certificate will
sometimes be issued if accompanied by an affidavit from a physician or a court order.
146 It should be noted that only on five occasions previous to the DOMA has Congress
enacted legislation based upon this power. The first, passed in 1790 (1 Stat. 122, codified
at 28 U.S.C. § 1738), provides for ways to authenticate acts, records and judicial
proceedings. The second, dating from 1804 (2 Stat. 298, codified at 28 U.S.C. 1738),
provides methods of authenticating non-judicial records. Three other Congressional
enactments pertain to modifiable family law orders (child custody, 28 U.S.C. § 1738A, child
support (28 U.S.C. § 1738B) and domestic protection (18 U.S.C. § 2265)).
constitutionally impermissible under the Equal Protection Clause unless the
legislative classification bears a rational relationship to a legitimate State purpose.
Because same-sex marriages are singled out for differential treatment, DOMA
appears to create a legislative classification for equal protection purposes that must
meet a rational basis test. It is possible that DOMA would survive constitutional
scrutiny under Romer inasmuch as the statute was enacted to protect the traditional
institution of marriage. Moreover, DOMA does not prohibit states from recognizing
same-sex marriage if they so choose.
Lawrence appears to stand for the proposition that the zone of privacy protected
by the Due Process Clause of the Fourteen Amendment extends to adult, consensual
sex between homosexuals. Lawrence’s implication for statutes banning same-sex
marriages and the constitutional validity of the DOMA are unclear.
Table 1. State Statutes Defining “Marriage”
St ate Statute MarriageDe f i ni t i on a Non-Recognition
AlabamaALA. CODE § 30-1-19 (2003)XX
AlaskaALASKA STAT. § 25.05.011 (2003)X
ArizonaARIZ. REV. STAT. § 25-101 (2003)X
ArkansasARK. CODE ANN. § 9-11-109 (2003)X
CaliforniaJudicial Interpretation Xb
ColoradoCOLO. REV. STAT. § 14-2-104 (2003)X
DelawareDEL. CODE ANN. tit.13 § 101 (2002) X
FloridaFLA. STAT. Ch. 741.04 (2002)X
GeorgiaGA. CODE ANN. § 19-3-3.1 (2002)X
HawaiiHAW. REV. STAT. ANN. § 572-1 (2003)X
Idaho*IDAHO CODE § 32-209 (2003)X
Illinois*750 ILL. COMP. STAT. 5/201 (2003)XX
IndianaIND. CODE ANN. § 31-11-1-1 (2003)XX
IowaIOWA CODE § 595.2 (2003)X
Kansas*KAN. STAT. ANN. § 23-101 (2002)X
KentuckyKY. REV. STAT. ANN. § 402.020 (2002)X
LouisianaLA. CIV. CODE art. 86 (2003) X
MaineME. REV. STAT. ANN. tit. 19, § 701 (2003)X
MarylandMD. CODE ANN. FAM. LAW § 2-201 (2002)X
MichiganMICH. COMP. LAWS § 551.1 (2003)XX
MinnesotaMINN. STAT. § 517.01 (2002)X
MississippiMISS. CODE ANN. § 93-1-1 (2003)X
Missouri*MO. REV. STAT. § 451.022 (2003)X
MontanaMONT. CODE ANN. § 40-1-103 (2002)X
NebraskaNEB. REV. STAT. ANN. art. 1, § 29 (2002)X
NevadaNEV. REV. STAT. ANN. §122.020 (2003)X
NewN.H. REV. STAT. ANN. § 457:2 (2002)X
New JerseyJudicial InterpretationXe
New MexicoN.M. STAT. ANN § 40-1-1 (2002)Xf
New YorkJudicial InterpretationXg
NorthN.C. GEN. STAT. § 51-1.2 (2003)X
North DakotaN.D. CENT. CODE § 14-03-01 (2002)X
Ohio*OHIO REV. CODE ANN. §3101 XhX
OklahomaOKLA. STAT. tit. 43 § 3.1 (2003)X
OregonOR. REV. STAT. § 106.010 (2001)Xi
Pennsylvania*PA. STAT. ANN. tit. 23 § 1704 (2002)X
St ate Statute MarriageDe f i ni t i on a Non-Recognition
Rhode IslandR.I. GEN. LAWS § 15-1-1 (2002)Xj
SouthS.C. CODE ANN. § 20-1-10 (2002)X
South DakotaS. D. CODIFIED LAWS § 25-1-1 (2002)X
Tennessee*TENN. CODE. ANN. § 36-3-113 (2003)X
TexasTEX. FAM. CODE ANN. § 2.001 (2002)X
UtahUTAH CODE ANN. § 30-1-2 (2003)X
VermontVT. STAT. ANN. tit. 15 § 8 (2003)X
VirginiaVA. CODE ANN. § 20-45.2 (2003)X
WashingtonWASH. REV. CODE ANN. § 26.04.010 (2003)X
West VirginiaW. VA. CODE § 48-2-603 (2003)X
WisconsinWIS. STAT. § 765.01 (2002)Xk
WyomingWYO. STAT. § 20-1-101 (2003)X
Puerto RicoP.R. LAWS ANN. tit. 31, § 221 (2002)X
Notes: States in bold have constitutional amendments prohibiting same-sex marriage. States marked
with an asterisk have a statute establishing same-sex unions as a violation of the state’s public policy.
a. Marriage consists of a contract between one man and one woman.
b. In In re Marriage Cases, 183 P.3d 384 (Ca. 2008), the court held that the state’s constitution
guarantees the basic right to civil marriage to all individuals and couples regardless of their
sexual orientation. In November 2008, voters approved a constitutional amendment which
recognizes as valid marriages unions of heterosexual couples.
c. In Kerrigan v. Commissioner of Public Health, 2008 WL 4530885 (Oct. 28, 2008), the court held
laws restricting civil marriage to heterosexual couples violate the state’s equal protection
dc. The Supreme Judicial Court has interpreted “marriage,” within Massachusetts’ statutes, “as the
union of one man and one woman.” Adoption of Tammy, 619 N.E.2d 315 (1993). However, in
Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003), the court construed the
term “marriage” to mean the voluntary union of two persons as spouses, to the exclusion of all
e. The New Jersey Supreme Court held that the state’s constitution requires that same-sex couples be
granted the same rights as married heterosexual couples. The Court left the definition of
marriage to the legislature. Lewis v. Harris, 908 A.2d 1196 (N.J. 2006). On December 15,
2006, the legislature declined to expand the term “marriage” to include same sex couples.
Instead, the legislature created a civil union status for same-sex couples effective February
f. Marriage is a civil contract requiring consent of parties.
g. Marriage has been traditionally defined as the voluntary union of one man and one woman as
husband and wife. See, for example, Fisher v. Fisher, 250 N.Y. 313, 165 N. E. 460 (1929). A
basic assumption, therefore, is that one of the two parties to the union must be male and the
other must be female. On the basis of this assumption, the New York courts have consistently
viewed it essential to the formation of a marriage that the parties be of opposite sexes.
h. Effective May 7, 2004.
i. Marriage is a civil contract entered into in person by males at least 17 years of age and females at
least 17 years of age, who are otherwise capable, and solemnized in accordance with ORS
j. Men are forbidden to marry kindred.
k. Marriage, so far as its validity at law is concerned, is a civil contract, to which the consent of the
parties capable in law of contracting is essential, and which creates the legal status of husband