Same-Sex Marriage, Civil Unions and Domestic Partnerships

Last Update: July 14, 2011

Quick facts on key provisions:

• Issues marriage licenses to same-sex couples: Massachusetts, Connecticut, California*, Iowa, Vermont, New Hampshire, New York and the District of Columbia

• Recognizes same-sex marriages from other states:  New York, Maryland

• Allows civil unions, providing state-level spousal rights to same-sex couples: Delaware, Hawaii, Illinois, New Jersey, Rhode Island (Note:  In Connecticut, Vermont and New Hampshire, same-sex marriage has replaced civil unions.)

• Grants nearly all state-level spousal rights to unmarried couples (domestic partnerships): California, Oregon,  Nevada, Washington

• Provides some state-level spousal rights to unmarried couples (domestic partnerships): Hawaii, Maine, Wisconsin and the District of Columbia

• * The California Supreme Court ruled on May 15, 2008, that same-sex couples have the right to marry in California.  Proposition 8, which amended the California Constitution to define marriage as between one man and one woman, was passed on Nov. 4, 2008.  On Aug. 4, 2010, a federal district judge ruled that the same-sex marriage ban in Proposition 8 violated the equal protection provisions of the U.S. Constitution. Enforcement of that decision has been stayed pending appeal. California does not currently allow same-sex marriages to be performed. Same-sex marriages performed before Proposition 8 was passed remain valid.

Resources

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

A chart summarizing civil unions/domestic partnership state statutes provides information and links to laws in states that allow civil unions or domestic partnerships.

A table listing states with statutes defining marriage between one man and one woman, constitutional amendments defining marriage between one man and one woman, states without any laws prohibiting same-sex marriage and states with constitutional amendments on the ballot this year.

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

Same-Sex Marriage Overview

In Nov. 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 General Assembly 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 General Assembly 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 United States 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 legal 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 Feb. 19, 2007.  New Hampshire also passed legislation authorizing civil unions, which took effect on Jan. 1, 2008.

On May 15, 2008, the California Supreme Court ruled that same-sex couples should have the right to marry.  The ruling took effect mid-June and same-sex marriages were performed in California for a short period of time before a ballot initiative defining marriage between one man and one woman was certified in late summer.  Proposition 8 passed in November 2008, again banning same-sex marriage in California.  Proposition 8 was challenged in early 2009, but the California Supreme Court upheld the law in May 2009. 

In October 2008, the Connecticut Supreme Court ruled that a ban against same-sex marriage was in violation of the equal protection clause in the state constitution.  Connecticut became the second state to allow same-sex marriage.  As of October 2009, civil unions were no longer offered.

In April 2009, the Iowa Supreme Court ruled that the state's ban against same-sex marriage was unconstitutional.  Iowa began performing same-sex marriages in June 2009.

In May 2009, Vermont became the first state where the legislature, without judicial mandate, passed legislation to allow same-sex marriage.  Maine and New Hampshire quickly followed, bringing the total number of states to allow same-sex marriage to six. However, same-sex marriages were never performed in Maine because a ballot measure passed in November 2009, repealed the law.

In December 2009, the District of Columbia Council passed a same-sex marriage law, subject to a congressional review period. 

In August 2010, a federal district judge in California ruled that the Proposition 8 ban on same-sex marriages (passed in 2008) violated the equal protection provisions of the U.S. Constitution. The decision has been appealed and enforcement (allowing same-sex marriages to be performed) has been delayed until it can be heard by the 9th Circuit Court of Appeals.  An expedited hearing will be held in December and the decision is likely to be appealed to the U.S. Supreme Court. 

In June 2011, the New York Assembly passed legislation allowing same-sex marriage. Governor Andrew Cuomo immediately signed the legislation. The law takes effect 30 days after signing, so that same-sex marriages will be available in New York in late July 2011.

In June 2011, the Rhode Island General Assembly passed legislation allowing civil unions, offering the same benefits of marriage to those entered into a civil union.  Governor Lincoln Chafee signed the bill into law, which will take effect July 1, 2011.

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); however, in 2008 the measure ultimately passed.  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. Opponents of the amendment cite federalism concerns in addition to support for same-sex marriages. A constitutional amendment requires twp-thirds of the U.S. House and Senate and three-fourths of the state legislatures for enactment. 

Defense of Marriage Acts (DOMA)

Thirty-seven 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.  Thirty states have defined marriage in their constitutions.  Arizona is the only state that has ever defeated a constitutional amendment defining marriage between a man and a woman (2006), but subsequently passed the measure in 2008.

 The three states that had statutory language defining marriage pre-dating DOMA are Wyoming (1957), Maryland (1973) and New Hampshire (1987). 

For more information on same-sex marriage issues, please contact Jack Tweedie in the Denver office at 303.364.7700 or cyf-info@ncsl.org.  For federal marriage issues, contact Sheri Steisel in the D.C. office at 202.624.5400 or fedhumserv-info@ncsl.org.