During the past few decades, U.S. courts have been slowly expanding the definition of family. There is growing recognition of homosexuals as parents, because courts are increasingly granting visitation and custody rights not only to the gay or lesbian natural parent but also to stepparents in same-sex relationships. Courts are also approving adoption petitions of single gay men and lesbians and of same-sex coparents, as well as petitions of a same-sex couple to jointly adopt an unrelated child. The availability of artificial insemination for lesbians is another contributing factor to the expanding recognition of alternative families in the United States.
In recognizing new family structures and living arrangements alternative to marriage, the prevalent statutory solution to the status of unmarried cohabitants in the United States during the past decade has been domestic partner legislation and policies. Alongside the marketplace and statutory recognition of domestic partnership, a large number of state courts have taken into account the changes in society during the past few decades—the rise in nonmarital cohabitation of opposite-sex couples and the large number of same-sex cohabiting couples—and have provided some protections for these relatively new forms of cohabitation by way of according limited rights in various contexts to same-sex couples and recognizing certain kinds of cohabitation agreements. In addition to cohabitation contracts and domestic partnerships, adult adoption, whereby one partner in a same-sex relationship adopts the other partner, has been used as an alternative to marriage.
The latest and most controversial development in the United States in the field of same-sex partnerships is the fight of same-sex couples to enter the institution of marriage. In recent years, a few courts have come close to according gays the right to civil marriage; this in turn has led to a national backlash against gay rights and has prompted legislation whose aim is to prevent the opening up of marriage to gay and lesbian couples.
The different means of securing some of the rights associated with marriage as well as the possibility of same-sex couples̓ gaining access to marriage are the issues of this chapter.
Traditional definitions of parenthood were exclusive and did not encompass the families of same-sex couples.1 Yet definitions and conceptions of family and parenthood are quite flexible and are in constant fluctuation. American statutes and case law are unclear as to whether current definitions of parenthood preclude or include the families of same-sex couples: as I explain below, a large number of cases suggest the former, whereas others (some of the favorable decisions pertaining to second-parent adoptions [see below]) suggest the latter. It thus seems that, at least as far as some states are concerned, there is still a long way to go before we can say with some certainty that legal definitions of parenthood include the families of same-sex couples. The law requires a child to have only one parent of each sex, and natural parents have all of the rights and obligations of parenthood, whereas de facto parents have relatively few of the rights and obligations associated with parenthood.2 However, despite the history of judicial hostility toward lesbian and gay families with children, and despite the negative stereotypes,3 an increasing number of adoption petitions by gay and lesbian couples have been filed in state courts around the country during the past two decades,4 and courts have extended visitation and custody rights to nonbiological parents. Artificial insemination has also become popular as a means for lesbian couples to create a two-parent family. Some attribute this increase to the growing visibility and political power of gay men and lesbians.5 This section analyzes these developments, which are in sharp contrast to the almost complete prohibition on gay and lesbian parenthood in some of the European countries.6
Same-sex couples have made a lot of progress regarding their adoption rights, and there is a growing number of judges who allow such adoptions; however, court decisions on adoption by gays and lesbians continue to be inconsistent and disconcerting.7
All forms of adoption are based on state law; in addition, every adoption in the United States, even if arranged privately, must be approved by the court.8 The adoption statutes and procedures and the court decisions pertaining to these statutes are governed by each state individually—there is no national uniform set of laws.9 Although the standard of review in cases of adoption, that is, the “best interest of the child” standard, is similar in all states, it is a very vague standard allowing wide discretion to the courts. It is thus being interpreted differently by each judge and has been used by various courts to prevent lesbians and gay men from adopting children.10 Legislation asserting that lesbians and gay men per se were “unfit” to adopt and expressly prohibiting any form of adoption by any “homosexual” existed in New Hampshire until recently,11 and as of May 2001 three states (Florida, Utah, and Mississippi) had bans on adoption by same-sex couples; only Florida explicitly bans adoptions by individual gay men and lesbians in addition to same-sex couples.12 Furthermore, the state agency in charge of adoption and foster care in Arkansas decided in 1999 to ban homosexuals from becoming adoptive parents.13
In May 1999 New Hampshire lawmakers repealed that state's twelve-year-old ban on gay adoption and foster parenting.14 In 1995 the supreme court of Florida upheld the constitutionality of the statutory ban against adoptions by gays.15 The complete ban was upheld once again in August 2001 by the Federal Court for the Southern District of Florida.16 Similar challenges to the new laws banning adoption in Utah and Mississippi are expected in the near future. Moreover, within the last two years, six states have had legislation introduced that would have restricted gay and lesbian adoptions. The bills introduced in Georgia, Missouri, and Oklahoma did not pass, and bills in Alabama, Indiana, and Texas are still pending.17
The term second-parent adoption or coparent adoption refers to adoption by a lesbian or a gay man of her or his partner's (biological or adoptive) children and the retention of legal parental rights on the part of the biological or adoptive parent.18 In the case of second-parent adoption, the parties seek legal recognition for an already existing parental relationship.19 Second-parent adoptions by gays and lesbians are a judicial creation derived by analogy from the recognition of stepparent adoption by married couples.20 Most state adoption statutes provide that when a child is adopted, the existing parent loses all legal rights with respect to that child, unless the adopting party is the legal spouse and a stepparent to the child of the existing parent. In other words, an exception to the rule according to which the parental rights of the child's biological or otherwise legal parent are terminated and transferred to the new adoptive parent is limited to stepparents, who may adopt their spouse's children without altering the spouse's parental rights. That exception has until recently been reserved exclusively for marital relationships.21 Since same-sex marriage is not available in the United States, and since according to the above-mentioned “cut off” provision in most adoption laws, the existing parent in a same-sex relationship would lose all legal rights and responsibilities with respect to his or her child if the partner's petition was approved, and since the original parent would have no desire to give her or his consent to the termination of parental rights in second-parent adoption cases, such adoptions have usually been denied.22 However, more recent court decisions in various jurisdictions have interpreted adoption statutes more liberally, and second-parent adoptions by same-sex couples have been accorded by various levels of courts in almost half the states. The highest state courts of Vermont, Massachusetts, and New York have expressly permitted lesbians and gay men to adopt the children of their partners without the legal parental rights of those parents being extinguished.23 In 1995 three intermediate-level appellate courts—in New Jersey,24 the District of Columbia,25 and Illinois26—also permitted second-parent adoptions by same-sex couples.27 Second-parent adoptions have been approved by lower courts in many other states.28 Even though the letter of the law in each state prohibits biological parents from sharing parental rights and responsibilities with adoptive parents, and though second-parent adoption is not regulated by any adoption statute, each of these courts has looked beyond the language of the statute to its purpose—advancing the best interests of the child—in granting the adoptions and allowing the rights and responsibilities of the biological parent to continue.29 The courts have applied the rules authorizing stepparent adoptions by analogy in order to grant second-parent adoption—a statutory interpretation approach known as the functional equivalent analysis—and have reasoned that such interpretation was in the best interests of the child involved; since the overriding purpose of all adoption statutes is to further the best interests of the children, such interpretation was justified by the courts.30 Moreover, California's domestic partnership act, which took effect on January 1, 2002, specifically authorizes registered domestic partners to adopt each other's children using the second-parent adoption procedure.
Three states (in addition to Florida, Utah, and Mississippi, which have a complete ban on adoption by gays) expressly prohibit second-parent adoption by same-sex couples. The supreme court of Wisconsin,31 an intermediate appellate court in Colorado,32 and a Pennsylvania appeals court,33 have interpreted these states̓ statutes to preclude second-parent adoption by lesbians and gay men. The supreme court of Connecticut instituted a similar ban in 1999,34 but on May 3, 2000, the Connecticut legislature enacted a law that overturns the court's decision and allows gays and other unmarried couples to adopt their partner's children.35
When neither partner to a same-sex relationship has a child of his or her own, adoption by a gay man or a lesbian as an individual can be a first step to a subsequent petition for second-parent adoption—by the nonadoptive partner alone or as a joint petition including the adoptive parent. This used to be the only way for both partners in a same-sex relationship to pursue adoption of a child not related to either of them, since until recently, joint adoption by a same-sex couple (or by an opposite-sex unmarried couple) of an unrelated child who was not previously adopted by one of the partners as an individual was not permitted by any state. This was because all states̓ adoption statutes or administrative policies limited adoption to only one partner of unmarried cohabiting heterosexual couples or same-sex couples, thus restricting gay and lesbian couples from adopting jointly.36
Except for Florida, Utah, and Mississippi,37 no state prohibits unmarried individual adults, including gay men and lesbians, from applying to become foster parents and from applying for adoption. In practice, however, states vary in their assessments of the fitness of lesbians and gay men, and although courts in more than twenty-two states have allowed adoption by individual lesbians and gay men,38 in many cases such petitions are denied.39 In December 1997 New Jersey became the first state to allow joint adoption by lesbian and gay couples, as well as unmarried heterosexual couples, on an equal footing with married couples.40 It has been reported that numerous joint adoptions by same-sex couples have also been granted in California,41 and more recently in New York, where a County Surrogate issued an order granting joint adoption of a child to a same-sex male couple, neither of whom was previously the biological or adoptive parent of the child.42
Second-parent adoptions have apparently become a popular means of recognizing both parties to a same-sex relationship as parents, since in almost half of the states, courts have permitted such adoptions. Joint adoptions by same-sex couples of an unrelated child, though, are a recent development that is still limited to very few jurisdictions. Most decisions regarding second-parent adoptions have been made by trial courts, whose decisions are nonbinding, and there are very few definitive rulings of appellate courts. Thus, it remains to be seen whether higher courts will accord the same degree of recognition, which will bind the lower courts; if that occurs, petitions for second-parent adoptions will no longer be dismissed merely because of a judge's restricted interpretation of adoption laws as not providing for this option.
The growing approval of second-parent adoptions has generally not been accompanied by success in custody and visitation suits by gay and lesbian second parents (those who have not adopted the child in question).43 Nonetheless, recent case law may suggest a move toward greater recognition of the rights of gay and lesbian stepparents.44 As far as individual gay men and lesbians are concerned, a few states have expressly pronounced sexual orientation by itself to be irrelevant to a custody decision,45 and some other state courts have awarded custody to lesbian or gay parents on a case-by-case basis.46 Although no state has adopted a rule that homosexuality per se should be a bar to granting custody, many courts̓ reasoning is masked by a “best interest” test while they virtually apply a per se rule, even when denying the existence of such a rule in their jurisdiction.47 In many other jurisdictions, there are only a few reported decisions dealing with gay or lesbian custody or none at all.48 Moreover, even when gays and lesbians have been permitted to maintain custody, the courts usually have imposed unreasonable restrictions upon the gay or lesbian parents̓ lifestyle.49
Custody and visitation rights have scarcely ever been accorded to the nonbiological parent upon the termination of a same-sex relationship. Although the determining standard applied by most courts is “the best interest of the child” (as in adoption),50 as a general rule, custody and visitation rights are considered inherent rights only of biological parents, and courts are reluctant to accord such rights to nonbiological parents, even when there is a clear agreement as to the rights of coparents or a factual parental relationship between the nonbiological partner and her or his partner's children. An exception to the general tendency of courts not to accord visitation and custody rights upon the termination of a same-sex relationship is the groundbreaking decision of a unanimous New Jersey Supreme Court.51 Basing its decision on precedents from Wisconsin and Massachusetts,52 that court held that according a lesbian coparent visitation and custody rights for her ex-partner's biological children whom she had not adopted but had served as their “psychological parent” could be considered.53 In according the ex-partner legal standing akin to that of a biological-legal parent, the decision is one of the broadest and most far-reaching rulings on parental rights of same-sex couples in the nation to date.54
American courts generally refuse to enforce either custody and visitation agreements on behalf of nonbiological or nonadoptive coparents or agreements between unmarried biological parents, considering such enforcement to be contrary to public policy.55 The agreements between unmarried biological parents may include agreements between the partners in a lesbian couple about custody over a child conceived by one of them through artificial insemination or a child adopted by one of them as an individual; or they may involve cases in which one of the partners to a lesbian relationship or a single woman has conceived via artificial insemination by a known donor with the agreement that he would waive some of his parental rights, such as custody, with respect to that child.56 In these cases courts usually hold that rights to custody and visitation cannot be contracted away, since such contracts are contrary to public policy.57 In only one major decision has an appellate court held that a coparenting agreement regarding the joint custody by a lesbian couple of a child conceived by one of them through artificial insemination was enforceable—subject to judicial modification in the best interest of the child—holding that a parent may contract with another person concerning the custody of a child.58
Moreover, notwithstanding the existence of any agreement between the parties, some courts refuse to accord custody and visitation rights to nonrelatives, specifically to nonbiological coparents in a same-sex relationship, even if they are the de facto parents of the child.59 It is usually held that a nonparent in a same-sex relationship has no standing to seek custody or visitation upon the termination of the relationship; in so holding, courts refuse to protect nontraditional families or to expand the definition of parent to include a functional one; and usually they ignore the intention of the natural mother to create a parental relationship between her partner and her child and the reality of the de facto parenthood created between the nonbiological parent and her partner's children. Courts generally hold that the coparent who did not adopt the child does not have standing to bring an action for custody or visitation, without addressing the issue of whether custody or visitation by this partner would be in the best interests of the child.60
Very few courts have been willing to recognize the concept of de facto lesbian coparenthood; they have granted limited visitation rights to the nonbiological parent but have refused to accord her custody unless the biological parent was unfit to care for the child.61 There are very few cases in which partial custody and visitation rights have been granted to the nonbiological coparent in a same-sex relationship.62 Most cases in which child custody has been granted to the lesbian de facto coparent have been cases in which the biological mother has died.63 There is only one reported case where full joint custody, as opposed to mere visitation rights, has been granted to a nonbiological lesbian parent.64
Every U.S. state has detailed laws and regulations dealing with adoption, but there is hardly any legislation relating to the new reproductive techniques, and access to sperm banks is not publicly regulated in the United States.65
Generally, artificial insemination by an anonymous donor is available for lesbians and single women in the United States. The availability is determined by private doctors and sperm banks. No state expressly prohibits sperm banks from providing services to unmarried women or to lesbians.66 Three states have introduced legislation, eventually defeated, which would have required physicians to curtail or even completely forgo the artificial insemination of single women.67 It appears that severe restrictions on reproductive processes that affect the right to procreate are suspect and that even if such legislation were passed, it would likely be struck down as unconstitutional by the courts.68 Although artificial insemination is legal in the United States and theoretically available to single women and lesbians, there are no rules stipulating that sperm banks must offer such services, and discrimination against single women and lesbians seeking artificial insemination exists. In practice, the feasibility of artificial insemination may be limited by the reluctance of sperm banks and private physicians to provide services for lesbians and other unmarried women.69 Private physicians̓ refusal to inseminate single women and lesbians often stems from religious beliefs, prejudice toward lesbians as parents, or unfounded paternalistic views about the abilities of single women to raise children.70 However, such limitation or discrimination in access to artificial insemination services is very rare in the United States; the greater percentage of women seeking such services obtain them with no difficulty.
In the 1960s the typical American household consisted of a married couple with children under 18 at home.71 Nonmarital cohabitation has increased in the United States since the beginning of the 1970s.72 The number of unmarried opposite-sex cohabiting couples increased almost fivefold between 1970 and 1988, and between 1990 and 2000 that number rose by 72 percent from 3.19 million to 5.47 million.73 Married-couple households dropped from 55 percent of all homes in 1990 to 52 percent in 2000.74 Census data for 2000 reveal that nearly 500,000 couples are living together in same-sex relationships, rising from nearly 122,000 in 1990.75 Unlike marriage, wherein marital property and support rights are legally recognized and protected through state legislative and judicial authority, nonmarital relationships of opposite- and same-sex couples in most states lack any legal status.76 Nonetheless, the shift from marriage as the almost universal living arrangement to unmarried cohabitation has instigated both statutory and judicial solutions of various kinds. As a California court stated as early as 1976, “[t] he mores of society have indeed changed so radically in regard to cohabitation that we cannot impose a standard based on alleged moral considerations that have apparently been so widely abandoned by so many.”77
However, court recognition of cohabitation has been far from comprehensive; cohabiting couples have been recognized only for specific purposes and in specific contexts. A variety of mechanisms for recognizing unmarried cohabitants̓ relationships have been proposed and implemented in the United States, ranging from proposals to revive and extend the common law marriage doctrine78 to different kinds of contractual arrangements.79 No state is likely to recognize unconstrained freedom to contract in domestic relations.80 Yet since the 1970s courts have accorded various rights to unmarried cohabitants of both the same and opposite sexes. Cohabiting couples can enter into an express cohabitation contract that regulates and limits mutual property rights; such contracts are generally enforced by the courts. Same-sex couples are thus able to create some of the legal benefits of marriage by private contracts, as well as through wills, joint tenancies, bank accounts, powers of attorney, and the like.81 But these instruments pertain only to very few of the rights that are traditionally associated with marriage.
Some courts have given their approval to express agreements between cohabiting couples, but that has been largely limited to heterosexual couples̓ agreements,82 and only in a few cases have contracts between cohabiting same-sex couples been enforced.83 Moreover, courts have approved cohabitation agreements only with respect to the couple's property rights. In the absence of an express contract of that sort, some courts have recognized implied contracts between cohabiting couples,84 whereas others have refused to enforce cohabitation agreements made by unmarried couples because to do so would violate the state's public policy of promoting marriage.85 Some courts have accorded recovery for the emotional distress suffered as the result of witnessing injury to an adult unmarried opposite-sex cohabitant because of the genuine familial relationship between them,86 but others have refused to do so in the same circumstances;87 and same-sex couples in particular have been denied recognition as being “closely related” in cases of emotional distress.88 Only in a few cases, limited to the field of housing discrimination, have courts held that a law prohibiting marital status discrimination provided protection to unmarried couples.89 Other courts have refused, because of the policy of promoting the institution of marriage, to protect unmarried cohabitants from housing discrimination, even where the law prohibited marital status discrimination.90
Courts have acknowledged unmarried cohabiting couples as families for other purposes as well, for example, by interpreting a state's domestic violence law to apply to same-sex cohabiting couples91 or by allowing the payment of workers̓ compensation death benefits to the same-sex partner of a deceased employee92 as well as to the surviving opposite-sex cohabiting partner of a deceased employee.93 Unemployment benefits have also been accorded to an opposite-sex cohabiting partner.94 In the case of the Guardianship of Kowalski, the Minnesota Appellate Court granted a lesbian woman guardianship status for her partner, who had been severely injured in an automobile accident, categorizing the couple's relationship as a “family of affinity.”95 Likewise, in the landmark Braschi decision, the New York Court of Appeals held that when the term family is used in a statute without definition, the term may include persons who are living together as a family unit even though they are not related by blood, marriage, or adoption. It thus held that a gay man could continue living in the apartment that was leased to his deceased gay lover, because the court interpreted the protection from eviction granted by New York law to a “family member” who had been living with the deceased tenant to include a same-sex partner.96 The court concluded that
The Braschi decision was an important breakthrough for gays, lesbians, and other “nontraditional” families owing to its adoption of a functional definition of family. Although the decision is restricted to eviction regulations regarding rent-control apartments, its reach has been expanding in New York and elsewhere.98 However, the difficulty with Braschi is that it seems to require complicated case-by-case determinations of the nature of the relationship.99
As the above-mentioned court decisions suggest, despite the willingness of some courts to recognize the rights of cohabiting opposite- and same-sex couples, such recognition is very limited, and the couples have no assurance that these decisions will be followed in other jurisdictions or extended to other situations. Furthermore, these advances can be easily overturned by future court majorities or by rulings of higher courts. Moreover, in many cases and in many other jurisdictions, courts refuse to recognize or accord rights to cohabiting unmarried couples and are not willing to expand the traditional concept of family.100 This is especially true regarding same-sex partners; in the majority of cases, such couples are denied recognition for specific purposes.101
To sum up, some rights traditionally associated with marriage have been recognized by the courts by way of expanding the definition of family, in terms of according a limited set of rights to opposite-sex cohabitants and an even more limited number of rights to same-sex cohabiting couples. As explained above, some other rights and obligations can be secured by way of contracts, wills, and the like. However, not only are contractual agreements limited in their scope, but they also do not provide same-sex couples with external validation of the part of their relationship that is beyond that of contracting parties; the law thus generally treats same-sex couples as unrelated for all purposes outside these legal instruments.102
The predominant legal relationship currently available to same-sex couples that provides some external validation as well as various rights and benefits is domestic partnership.103 Another (less popular and more problematic) option that offers some external validation for same-sex couples is adult adoption.
Adult adoption as an alternative to the institution of marriage has not gained popularity and is being used by relatively few same-sex couples. In order to circumvent the impossibility of same-sex marriage,104 some same-sex couples have used this quite unusual legal technique to create a legal family relationship that provides some of the rights associated with marriage. In these cases, since adult adoptions are permitted in the United States, one of the partners petitions to adopt his or her partner. In the most notable court decision pertaining to same-sex adult adoption, the New York Court of Appeals viewed a petition of a fifty-seven-year-old man to adopt his lifelong gay partner, fifty years old, as a quasimarital vehicle and refused to permit adoptions between same-sex partners as a matter of public policy, reasoning that the purpose of adoption is the creation of a parent-child relationship and that under current adoption laws sexual lovers should not be permitted to adopt one another for the purpose of giving a nonmarital legal status to their relationship.105 However, other courts in New York and elsewhere have granted similar adoption petitions.106 Most petitions for adult adoption of a gay or lesbian partner are filed in California and routinely granted.107 The primary purposes behind adult adoption and the main legal effects that are relevant to same-sex couples through adoption of one partner by the other are estate planning and inheritance:108 adoption automatically disinherits the parents and siblings of both the adopted and the adoptee, if either should die intestate; it also serves to deny parents and siblings standing to contest the will of the adoptive partner or the adoptee.109 A drawback of adoption is that it, unlike marriage, is irrevocable: there can be no divorce. In addition, the adoptee loses the right to inherit from her or his natural parents if they die without wills or to contest their wills.110 Moreover, in some states there is a possibility that same-sex couples who use adult adoption to create a familial relationship will be prosecuted, since some statutes provide that sexual relations between the parties to an adoption constitute incest.111 In addition to being both legally and ethically problematic, this technique is undoubtedly far from a substitute for marriage for gay couples.
In the United States, benefits such as health insurance and retirement and disability coverage are tied to employment. In this way the United States is different from other developed countries. Employers are free to decide whether to offer such benefits and whether to extend them to partners and children. Marriage has usually been a prerequisite for obtaining benefits for an employee's partner. Various municipalities and private employers have attempted to remedy the overdependence on marriage as the precondition for benefits and privileges by passing domestic partnership legislation or by adopting domestic partner benefit plans.112 Since employment benefits, where provided, make up approximately 40 percent of a worker's total compensation,113 employees who can obtain benefits for their spouses are in effect paid at a higher rate than employees in nonmarital relationships. Thus, the extension of such benefits to employees with a same-sex partner has a substantial economic value. It is rooted in the democratic notion of equal pay for equal work.114
Other than adult adoption, which cannot be regarded as public recognition of same-sex relationships as such, domestic partnership currently provides the only option in the United States for legal recognition of same-sex relationships.115
The broad concept of domestic partnership is a form of business or government recognition given to two unmarried adults of the same sex or opposite sexes seeking to share benefits normally conferred upon married couples because of conformity with a procedure established by the business or government; it is a civil partnership supported by private or public policy, or both.116 Domestic partnership is one step beyond cohabitation117 but a few steps behind marriage.118 Recognition of domestic partnerships in the United States is usually limited in its scope to the workplace—state, municipal, or private—and in its implications to the allocation of various employment benefits to same-sex couples; such recognition purports to place them on an equal footing with opposite-sex married couples. There are a few hundred benefits in the public and private sector that are extended on the basis of marital status from which domestic partners are excluded.119 Registration of a domestic partnership triggers very few benefits, if any, and is applicable only in the territory of the issuing jurisdiction.120Initially, domestic partner benefits were offered only to same-sex couples; many employers chose that option because heterosexual couples have the option of marriage; some view such policies as discriminatory against unmarried opposite-sex couples.121 Today, however, the majority of plans and ordinances are available to both same-sex and opposite-sex cohabiting couples.122 Some domestic partnership registrations are of only symbolic significance and provide no benefits or legal rights, and even in the limited field of workplace benefits, domestic partnership recognition accompanied by benefits usually does not place the same-sex couple on a completely equal footing with opposite-sex married couples. This is mainly because, unlike benefits for married couples, domestic partner registrations and benefit plans are not recognized by the Internal Revenue Service.123 The IRS has determined that domestic partners do not qualify as spouses for purposes of the exclusion from gross income of employer-provided benefits. Thus, the benefits provided by the employer are part of the employee partner's gross income and subject to federal income tax, unless the other partner qualifies as a dependent.124
Domestic partnership usually requires registration and is commonly defined as an ongoing relationship between two unrelated adults of the same sex or opposite sexes who share a primary residence on a continuous basis in a nonmarital arrangement, who are financially and emotionally interdependent, and who have a long-term, close, and committed personal relationship with mutual caring.125 Domestic partnership provisions impose various eligibility requirements similar to those for marriage, such as the requirement that the parties be at least eighteen years old and mentally competent, that the parties not be related by blood ties that would bar marriage in the state, and that neither of the parties has an existing marriage or domestic partnership.126 Furthermore, in order to be eligible to receive domestic partner benefits, the parties must prove that the relationship has existed for a certain period of time prior to the application. Some registration provisions may stipulate that any prior domestic partnership must have been terminated for a minimum interim period of time before another partnership can be registered.127 No corresponding conditions exist for marriage or for remarriage. In some cities, such as San Francisco, a couple may register as domestic partners only if at least one partner lives or works in the city; other cities, such as Berkeley and West Hollywood, allow nonresidents to register; Santa Barbara and West Hollywood are the only cities that recognize domestic partnerships registered in other cities.128 A domestic partnership is terminated by the death of one of the partners or by the unilateral act of one of the partners with notification of the other partner and, where applicable, of the registration office.
Broadly speaking, there are two kinds of domestic partnerships and two avenues of obtaining recognized status and benefits as same-sex domestic partners. One is through individual private-sector employers and benefit plans. The other is state or municipal recognition of domestic partnership provided for by law, by an ordinance, or by an executive order. Each venue has a different procedure and produces different results. As of May 1999, domestic partner benefits are offered by 10 percent of all U.S. employers and are available to employees at more than 570 companies,141 colleges and universities,129 and more than 87 city, county, and state governments. Among companies with more than five thousand employees, almost one-quarter offer these benefits.130 More than two-thirds of employers that have implemented this coverage are also providing it to unmarried opposite-sex couples.131 Most of the private employers that offer domestic partner benefits are in California, New York, and Massachusetts, and Pennsylvania, Illinois, and the District of Columbia are in close pursuit.132
In the private sector, employers who recognize domestic partnerships extend health-care and other employment-related benefits to the domestic partners of their employees. Although more than one thousand companies have equal opportunity statements that bar discrimination based on sexual orientation, many companies that grant additional benefits to married heterosexual employees do not accord those benefits to same-sex couples.133 Federal, state, and local laws do not expressly require an employer to provide domestic partner benefits; and although some municipalities—such as Los Angeles, New York City, and Seattle—provide for the extension of benefits to the domestic partners of municipal employees, none of the registration ordinances require that all private employers provide such benefits.134 Most state and local governments that offer domestic partner benefits to their employees and prohibit sexual orientation discrimination in employment have not attempted to enforce these laws against private-sector employee benefit plans because it is widely assumed that the federal Employee Retirement Income Security Act of 1974 (ERISA)135 would preempt such an application of the law.136 The Village Voice Newspaper was the first private business to offer health insurance benefits to the domestic partners of its gay and lesbian employees, in 1982.137 By 1990 fewer than two dozen U.S. employers offered domestic partner benefits, but during the following decade, the number grew at an increasing rate.138
In June 1997 the domestic partnership legislation of the city and county of San Francisco—the Equal Benefits Ordinance—went into effect.139 It was the first domestic partnership ordinance that required some private sector companies (all companies contracting with the city or county of San Francisco) to offer the same benefits to the domestic partners of their employees as they offer to employees̓ legal spouses. The ordinance prohibits the city from contracting with firms whose benefit plans discriminate based on the marital status or sexual orientation of employees.140 A few other jurisdictions, including Berkeley; Los Angeles; Seattle; Tumwater, Washington; and San Mateo County, California, have followed San Francisco's lead and expanded their ordinances to require all contractors with the governmental unit to provide full benefits to their employees̓ domestic partners;141 other cities are considering such expansions to their ordinances.142 The San Francisco ordinance was upheld after a challenge against it was brought by air carriers using the city's airport; though it struck down parts of the ordinance, the court ordered those carriers to comply with the amended city ordinance.143 The San Francisco ordinance instigated the adoption of domestic partner benefit plans by many private companies and businesses.144 In its 1999 report entitled “The State of the Workplace for Lesbian, Gay, Bisexual and Transgendered Americans,” the Human Rights Campaign argues that much of the rapid spread of domestic partner benefits in the last two years can be attributed to San Francisco's Equal Benefits Ordinance.145However, this domino effect seems to be limited to companies conducting business with San Francisco; and contrary to past predictions, registration of domestic partnerships offered by other cities and counties has proved not to motivate and encourage private businesses to offer benefits.146
In the second kind of domestic partnership recognition, by local governments, there are two ways in which states or municipalities recognize same-sex relationships as domestic partnerships.147 Some municipalities allow a couple who live together in a committed relationship and who meet certain qualifications to publicly register as domestic partners. This process allows same-and opposite-sex couples to have a symbolic recognition of their union with no legal effects;148 in other words, the existence of a registry can be and often is merely symbolic and independent of any grant of domestic partner benefits. Other states or municipalities extend to the domestic partner of the state or municipal employee the health-care and other work-related benefits that would have been extended to the spouse of the employee. Depending on the ordinance, this is being done either with or without registration as domestic partners, estic partnership legislation is being enacted on a case-by-case, municipality-by-municipality basis.149 In addition to employment benefits to domestic partners of state, county, or local government employees, such as health insurance coverage, bereavement leave, family sick leave, and relocation expenses, most registrations of domestic partnerships offer a limited set of rights such as student housing and access to a same-sex partner in prison or in the hospital.150 The most valuable and crucial benefit seems to be access to medical care by the unemployed or uncovered domestic partner of an employee who enrolls in a domestic partnership plan. Few domestic partnership laws go beyond the workplace or minor public accommodations.151
Berkeley, California, was the first municipality to enact a domestic partnership ordinance; that ordinance was enacted in 1985.152 As of May 2001, only seven states—Connecticut, Hawaii, New York, Vermont, Massachusetts, California, and Oregon—provide domestic partner benefits to their public employees. Otherwise, domestic partnership legislation has been enacted only at the municipal level; more than eighty city and county governments nationwide have thus far offered various domestic partner benefits.153
In September 1992 the governors of New York and Massachusetts issued executive orders to allow state workers to register as domestic partners for purposes of bereavement leave and visitation rights in state prisons and hospitals.154 The state of Vermont adopted its domestic partnership law in 1994, and in 1998 Oregon's Court of Appeals upheld a circuit court's ruling that ordered the state to extend insurance benefits to the partners of gay and lesbian state employees.155 Colorado may be the eighth state to enact a statewide domestic partner ordinance.156 On July 8, 1997, Hawaii became the first state to offer comprehensive benefits to same-sex couples, after passing its Reciprocal Beneficiaries Act.157 According to the act, any two single adults who cannot get married—including same-sex partners, blood relatives, or just friends—have access to a range of rights and benefits on the state level, including inheritance rights, workers̓ compensation, the right to sue for wrongful death, health and pension benefits for state employees, hospital visitation, health-care decision making, and the like.158 However, no private business in Hawaii is required to offer domestic partner benefits; moreover, the Hawaii attorney general rendered invalid workplace medical insurance benefits, thus withdrawing the most important benefit of the statewide partnership law and reducing its significance and success.159
In October 1999 the state of California adopted its domestic partnership law, which went into effect January 1, 2000. The law extends health insurance benefits to both same- and opposite-sex unmarried partners of state employees on an equal footing with married couples; it provides local governments and municipalities the option of providing the same benefits to their employees.160 The law also creates a registry of domestic partnerships, which is open to any same-sex couple in California as well as to heterosexual couples who are over the age of sixty-two—on the grounds that same-sex couples cannot legally marry and that marriage often threatens the benefits received by those over sixty-two.161 Registered domestic partners were accorded only the right to hospital visitation of their partners. However, in October 2001, California greatly expanded its original domestic partnership act by according more rights to same-sex couples. The new law took effect January 1, 2002.162 California's act defines domestic partners as two unrelated people who are committed to mutual caring, have reached the age of eighteen (heterosexuals: over sixty-two), share a common residence, and are responsible for each other's living expenses; neither partner can be married or in another domestic partnership.163 As a consequence of a contract arbitration ruling between a coalition of unions representing state employees and the state, Connecticut began offering the partners of its gay and lesbian state employees health insurance and pension benefits on March 9, 2000. To qualify for the benefits, employees must sign an affidavit declaring that they are in a long-term relationship that they expect to last into the indefinite future, and they must demonstrate evidence of mutual dependence such as joint financial obligations or proof of a common household.164
Other than Vermont's broad supreme court decision (see below), only one court has ruled thus far that a state has an obligation to extend benefits to the domestic partners of all public employees in the state on an equal footing with spouses of such employees.165 Several courts have struck down domestic partner benefit laws, holding that the municipality had exceeded its legislative authority,166 and other courts have upheld the denial of domestic partner benefits.167 Similarly, although many states include marital status among the categories upon which an employer may not discriminate,168 challenges to the denial of domestic partner benefits based on marital status discrimination have met with little success, and courts generally have not held that these state and local laws require employers to offer benefits to unmarried partners.169 Domestic partner benefits have also been blocked by referenda.170
Even though domestic partnership policies have met with considerable backlash,171 employers all over the nation have continued to extend benefits to same-sex couples. Domestic partner policies have symbolic significance, and they can provide substantial financial advantages and benefits, such as employer-provided health insurance for covered employees, which is a particularly valuable benefit as long as health insurance remains linked to employment in the United States. However, domestic partnership ordinances are extremely limited in their scope, availability, and applicability; they do not override state marriage laws, and since marriage itself is not within any particular city's jurisdiction, municipalities have a very limited role in assuring full rights for domestic partners.172 Furthermore, domestic partnership may provide couples with greater liabilities than benefits: municipalities typically charge couples between thirty-five and sixty-five dollars to register, yet deliver few or no benefits. For example, a registered domestic partner could unexpectedly be held financially responsible for a former partner's ongoing welfare and debts, whether or not they were jointly incurred—a responsibility that the partners had not agreed to and had not been aware of since it was not documented in the original benefit document. Thus, registration may be more harmful should a court later interpret it as creating joint financial liabilities, thereby imposing responsibilities similar to those of marriage with very few benefits.173
In the private sector, many companies require unmarried employees to sign an affidavit before receiving benefits; the form often contains statements (not required of married couples) that, for example, the couple shares financial obligations and has lived together for six months to a year.174 Partners Task Force for Gay and Lesbian Couples, which has been tracking domestic partner benefits since 1987, views these policies as “a crude bandage for an exclusionary benefits system” and concludes that “the reality for most couples is that the benefits are limited and could have negative tax consequences.”175 Furthermore, decisions by private employers or trade unions to grant benefits to same-sex couples, though often important both materially and symbolically, do not constitute or carry the same weight as government recognition of those relationships.176
Finally, it should be noted that the arguments by opponents of domestic partnership—namely, that the ordinances serve as evidence of a moral decline and diminish the institution of marriage—are also asserted in opposition to calls for legalization of same-sex marriage, and vice versa.177 However, a distinction must be made: although opponents of same-sex marriage view domestic partnership legislation as a backdoor way to create gay marriage, domestic partnership in fact does not create a new and distinct family relationship.178 Furthermore, domestic partnership legislation and policies could not alter the rights, benefits, and obligations of married people conferred by state or federal law; domestic partnerships are much more limited than the institution of marriage, so that the two are far from being comparable.
On December 20, 1999, in the matter of Baker v. State of Vermont179 (discussed in sec. 7.6.1 below), the Vermont Supreme Court enjoined the state legislature to extend to same-sex couples the benefits and protections associated with marriage. The court did not direct the legislature as to how it should effectuate the ruling, however; it suggested that the legislature might look to the registered partnership acts of the Scandinavian countries or to the original, broadly conceived domestic partnership proposal in Hawaii as a model for compliance. Consequently, on February 9, 2000, the Vermont House of Representatives Judiciary Committee, after weeks of hearing testimony, opted to move forward with an alternative to civil marriage for same-sex couples, and on February 29, 2000, the committee approved a bill (House Bill 847) that would create a new status for gay couples, civil unions.180 The Vermont House of Representatives on March 16, 2000, passed the civil union bill by a vote of 76 to 69.181 The bill was forwarded to the state Senate, which, following some modifications to the original text of the bill, approved the bill on April 19, 2000, by a vote of 19-11.182 Brought back to the House for final approval on April 25, the bill passed by a vote of 79 to 68 and was signed into law by Governor Howard Dean on the following day.183 The act took effect July 1, 2000, except for the provisions relating to insurance and taxation, which were effective January 1, 2001.184 From July 1, 2000, through the end of June 2001, a total of 2,258 civil unions were conducted; that is almost one-half of the number of marriages contracted in Vermont in the same period. Only about one-fifth of the unions were between Vermonters—the rest were entered into by couples who came from other states within the United States and from foreign countries.185 The act could thus be regarded as a success. A year after the passage of the act, two bills that would have completely repealed the civil union act were defeated in the state House of Representatives; moreover, on December 26, 2001, the Vermont Supreme Court rejected a challenge to the civil union law brought by a few legislators and town clerks who refused to issue civil union licenses.186
Vermont's civil union act is an exceptionally significant breakthrough and is one of the most important recent developments in the status of same-sex partnerships worldwide. The Vermont legislature has done all that it could do apart from using the term marriage (i.e., apart from revising the state's definition of marriage to include same-sex couples). The act extends to same-sex couples all the benefits and responsibilities of marriage that are within the state's power but none of the rights and benefits at the federal level, since the Vermont legislature is legally unable to require equal treatment of same-sex couples for federal purposes. Thus, parties to a civil union do not qualify for any of the benefits and protections contained in the 1,049 federal laws affecting the spousal relationship, such as assumption of the spouse's pension, bereavement leave, immigration, Social Security survivor benefits, and federal tax breaks for married couples. The act provides a definition of marriage as the legally recognized union of one man and one woman both in the marriage chapter and in the civil union chapter under the domestic relations title (secs. 1, 2[4]),187 and the new status it creates—civil union—is open only to same-sex couples. According to section 2, which makes specific reference to the Vermont Supreme Court decision in Baker, the purpose of the act is “to respond to the constitutional violation found by the Vermont Supreme Court in Baker v. State, and to provide eligible same-sex couples the opportunity to ‘obtain the same benefits and protections afforded by Vermont law to married opposite-sex couples’ as required by Chapter 1, Article 7th of the Vermont Constitution.”188
The requirements for entering a civil union are virtually identical to those for marriage. Civil union status is available to two persons of the same sex who are not related to each another. Parties to the civil union must be at least eighteen years old and competent to enter a contract. To enter a civil union, a person may not already be a party to another civil union or a marriage. The licensing scheme and the certification process for a civil union closely parallel those of marriage. A person makes an application to his or her town clerk and receives a civil union license in the same way as a person who applies for a marriage license. Within sixty days of issuance of the license, a couple must have the civil union certified by an authorized person. The same people who are authorized to solemnize a marriage are authorized to certify a civil union: judges, justices of the peace, and (willing) members of the clergy. The latter are not required to certify a civil union and may choose whether or not to do so according to the rules, customs, or traditions of their religion, just as they currently choose whether to perform civil marriage. Nonresidents may obtain a civil union license from any town clerk in the state rather than having to obtain the license from a town clerk in the county in which the civil union is going to be certified (note that Vermont currently requires a six-month residency period before one files for divorce, and this requirement applies equally to civil unions). Once certified, a person receives a civil union certificate instead of a marriage certificate.
The dissolution of civil unions follows the same procedures and is subject to the same substantive rights and obligations as those involved in the dissolution of a marriage, including any residency requirements. In other words, divorce laws and procedures apply to civil unions just as they do to marriages, and the family court has exclusive jurisdiction over all matters and proceedings relating to the dissolution of civil unions. The entire law of domestic relations, including annulment, separation and divorce, child custody and support, and property division and maintenance, applies to parties to a civil union.
The rights extended are comprehensive and parallel marriage: “Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses in marriage” (sec. 3). Moreover, “[a] party to a civil union shall be included in any definition or use of the terms ‘spouse,’ ‘family,’ ‘immediate family,’ ‘dependent,’ ‘next of kin,’ and other terms that denote the spousal relationship, as those terms are used throughout the law” (sec. 3).189 For example, parties to a civil union have mutual support obligations, as married couples do; the parties are considered legal next-of-kin for purposes of inheritance, workers' compensation, hospital visitation and notification, and medical decision making and are eligible for family leave benefits. Gay and lesbian couples are entitled to joint title, are able to transfer property to one another without paying property transfer taxes, and can own property in a way that is secure from the individual debts of either partner; state taxes on married couples and parties to a civil union are the same. Civil union partners are also entitled to all the protections available when adopting a child (same-sex couples are already allowed under Vermont state law to adopt, but the act makes clear that those couples are to be treated as spouses). Moreover, a party to a civil union can sue for the wrongful death of a partner, the emotional distress caused by a partner's death or injury, and the loss of consortium caused by death or injury. All probate law and procedures related to spouses are applicable to civil union parties. As with spouses, parties in a civil union cannot be compelled to testify against one another, and laws relating to the marital communication privilege apply.
Discrimination or different treatment of parties to a civil union is considered discrimination based on both sexual orientation and marital status. There are broad nondiscrimination provisions with respect to insurance that endeavor to ensure the equal treatment of spouses and parties to a civil union. Insurers must make available dependent coverage to parties to a civil union that is equivalent to that provided to married persons; an individual or group health insurance policy that provides coverage for a spouse or family member of the insured shall also provide the equivalent coverage for a party to a civil union. Although insurers are required to offer equivalent coverage, private employers are not required to provide coverage to parties to a civil union and may decide which employees are eligible for the insurance (because of the federal employment benefits law preemption,190 the state cannot order private employers to treat civilly united couples as spouses for purposes of employment benefit plans). The act also attempts to equalize the tax treatment of spouses and parties to a civil union. For the purpose of state income taxes, parties to a civil union are taxed in the same manner as married persons.
The act established a Civil Union Review Commission for two years, whose purpose is to prepare and implement a plan to inform members of the public, state agencies, and private- and public-sector businesses and organizations about the act; to collect information about the implementation, operation, and effect of the act; and to report to the general assembly and the governor its findings, conclusions, and recommendations.191
In addition to the civil union status created by the law, it created an institution called “reciprocal beneficiaries,” which provides several new protections for eligible blood relatives and relatives related by adoption. Such relatives can sign a notarized declaration to become “reciprocal beneficiaries” so that they may receive certain benefits and protections and be subject to certain responsibilities that are granted to spouses. A reciprocal beneficiary may not be a party to another reciprocal beneficiaries relationship, a civil union, or a marriage.192
The act does not purport to apply outside the state of Vermont, since Vermont's legislature cannot bind other states, and other states are not likely to recognize Vermont's civil unions. Although the act makes it possible for nonresidents to enter a civil union in Vermont, there is no clear indication of whether the new status would be recognized by any other state. Most states are unlikely to recognize civil unions entered into in Vermont. First of all, there are no comparable civil union laws on the books anywhere else. Second, some of the more than thirty states' defense of marriage acts, such as Kentucky's DOMA of 1998, not only bar the recognition of out-of-state same-sex marriages but also require that state courts give no legal effect to any obligation arising from such marriages.193 Furthermore, states may still refuse to recognize another state's laws, public acts, and records if they violate the public policy of the state in which recognition is sought.194 Thus, even a state's defense of marriage act that only bars recognition of same-sex marriage may be invoked as a public-policy reason not to recognize civil unions, because the difference between marriage and civil unions could be regarded as merely a matter of nomenclature. An interesting option of indirect recognition of civil unions entered into in Vermont by other states is their conceptualization as contractual rather than as a new civil status. That is, same-sex Vermont couples are considered to have acquired stateconferred contractual rights and obligations vis-à-vis each other that would be enforceable in other states.195 However, a few states have already expressed their intent not to recognize civil unions entered into in Vermont. Thus, for example, relying on the state's “legitimate public policy,” Illinois's attorney general stated that “Illinois is not required to recognize civil unions entered into under the laws of Vermont or extended to persons who have entered into a civil union the benefits which may be extended to married persons.”196 A case that marked the first time any state court was asked to interpret Vermont's civil union act was brought before the Georgia Court of Appeals in May 2001: a woman who entered a civil union with her same-sex partner in Vermont asked the court to recognize the union as a marriage.197 On January 23, 2002, in a brief decision, the court stated that “a civil union is not marriage” and ruled that the civil union did not make her legally related to her partner and could not substitute for legal marriage.The court added that even had Vermont opened up marriage to same-sex couples—or, alternatively, even if Georgia viewed civil unions as equivalent to marriage—owing to the defense of marriage act, as well as general public-policy principles, such a union would probably not be recognized in the state of Georgia.198
Vermont's act is the most extensive and far-reaching statutory recognition of same-sex partnerships in the United States; all other statewide as well as local domestic partner schemes pale in comparison to the Vermont act. The (formerly) broadest statewide domestic partner scheme, Hawaii's Reciprocal Beneficiaries Act, provides a number of benefits that are usually reserved for marriage; however, the benefits provided to reciprocal beneficiaries constitute just a small fraction of those provided to spouses and thus also only a fragment of the benefits provided to parties to a civil union. For example, termination of the Hawaii reciprocal beneficiaries relationship is by unilateral notification, whereas Vermont's civil unions are dissolved by the regular laws and procedures of divorce; in addition, hundreds of rights that are missing from Hawaii's act are present in civil unions. Nevertheless, even the Vermont act cannot and does not grant the more than one thousand rights and benefits that the federal government provides.
In Vermont there are now three categories: marriage for heterosexual couples, civil unions for gay and lesbian couples, and reciprocal beneficiary status for people related by blood or adoption. The civil union, albeit a new legal institution and a new status parallel to marriage, is not to be confused with marriage for same-sex couples: as the act states, the system of civil unions “does not bestow the status of civil marriage,” and the granting of “benefits and protections to same-sex couples through a system of civil unions will provide due respect for tradition and long-standing social institutions” (sec. 1 [10]);199 that is, the civil union system is not intended to undermine the primacy of the institution of marriage. Moreover, as stated above, a same-sex couple's civil union is not recognized under federal law, and no federal statute is applicable to the couple, meaning that they are not eligible to receive the rights available to married couples, such as those pertaining to immigration, social security, and federal taxes. Not only are civil unions different and separate from marriage per se, but they are also largely limited to the state of Vermont and to the rights, benefits, and protections accorded to opposite-sex married couples within Vermont. Therefore, civil unions should not be categorized as “Vermont gay marriages” or as a new national status for same-sex couples. However, since the act creating civil unions is extremely broad in comparison to existing U.S. domestic partner ordinances and acts, it should be regarded as an exception within the United States and classified as an institution that, because of its broad scope, is more akin to the European registered partnership model than to any U.S. domestic partner scheme.200
A few other states may follow Vermont's lead by enacting a civil union act or similar legislation (or even opening up the institution of marriage to same-sex couples [see the next section]). The most advanced campaigns have been mounted in Connecticut and Rhode Island; these two states were the first to hold legislative hearings on civil union bills—voluntarily, without a court order.201 In a few additional states, such as California202 and Washington,203 civil union bills have been introduced and are currently pending. It seems, however, that it will take quite some time for such developments to take place,204 especially in light of the political turmoil in Vermont in the aftermath of the enactment of civil unions: some Vermont politicians who supported the civil union bill were replaced by conservatives in the elections of fall 2000.205 Lawmakers in other states are now hesitant to engage their states in what looks to be inevitable political turmoil. A civil union proposal has already been defeated in Hawaii,206 but it will probably be reintroduced in future legislative sessions.
According to U.S. law, domestic relations in general and marriage law in particular are within the jurisdiction of the states; marital relationships have always been controlled and regulated by the individual states, not by the federal government.207 Therefore, the attempts to open up civil marriage to same-sex couples have taken place in various states and through scattered challenges brought before state courts.
For many years American courts have rejected petitions of same-sex couples who wished to get married, despite the recognition of a constitutionally protected fundamental right to marry.208 The reason for the exclusion by the courts has been a definitional one: the common meaning and usage of the word marriage has been viewed as excluding any definition other than a union between a man and a woman. Moreover, courts have emphasized again and again the link between procreation, child raising, and marriage as a reason to exclude same-sex couples from the institution of marriage.
In 1972 the National Coalition of Gay Organizations drew up a list of demands for law reform including a call for “repeal of all legislative provisions that restrict the sex or number of persons entering into a marriage unit and extension of legal benefits of marriage to all persons who cohabit regardless of sex or numbers.”209 At the same time, same-sex couples who were denied marriage licenses by their town officials began challenging these denials in state courts. They asserted that because marriage statutes were construed to require different-sex partners—although most state laws did not explicitly prohibit same-sex marriages or define marriage to be a union between a man and a woman—these laws constituted unconstitutional discrimination on the basis of sex or sexual orientation. The first cases to challenge the denial of marriage to same-sex couples were filed in 1971—Baker v. Nelson210 and Singer v. Hara.211 Two years later, a similar challenge was brought in the case of Jones v. Hallahan.212 In these cases the courts upheld the government's refusal to issue marriage licenses to same-sex couples, relying upon the definition of marriage as inherently involving opposite-sex partners and reasoning that same-sex persons, by definition, cannot marry each other. The courts ruled that the institution of marriage is limited to a union between one man and one woman that exists as a protected legal institution primarily because it is the appropriate and desirable forum for the procreation and the rearing of children.213 Another challenge that met with no success was the 1984 decision in DeSanto v. Barnsley.214 Unlike the other cases, DeSanto did not challenge a refusal to provide a marriage license. Instead, the plaintiff filed for divorce claiming that a common law marriage existed between him and his lover. The court dismissed the case, refusing to recognize common law marriages between persons of the same sex.215 The case of Dean v. District of Columbia was filed in 1990 and was eventually lost on appeal in 1995.216 In that case, despite the District of Columbia broad Human Rights Act requirement that lesbians and gay men be accorded “equal opportunity to participate in all aspects of life,” the court found that it would be contrary to the legislature's intent in enacting the Human Rights Act to change the definition of marriage.217
In May 1993, in the landmark decision in the case of Baehr v. Lewin,218 the supreme court of Hawaii became the first U.S. court to accept the argument that the denial of marriage licenses to same-sex couples is prima facie sex discrimination requiring justification. The court ruled that the state's refusal to issue civil marriage licenses to same-sex couples under the Hawaii marriage law was discrimination based on sex and presumptively violated the state constitutional guarantee in its Equal Rights Amendment (ERA), which bars discrimination on the basis of sex, since the law was construed by the state to allow men to marry women but not men and to allow women to marry men but not women. The court held that sex is a “suspect category” for purposes of equal-protection analysis under article 1, section 5 of the Hawaii Constitution and therefore applied “strict scrutiny” analysis.219 The court thus held that the “different-sex restriction” on marital choice constitutes prima facie unconstitutional sex discrimination.220 In so doing, the Hawaii court found the argument made thirty years earlier in the case of Loving v. Virginia regarding interracial marriages as racial discrimination221 to be equally specious when applied to sex in the context of same-sex marriages.222 Unlike prior cases dealing with access of same-sex couples to the institution of marriage, the Hawaii Supreme Court found illegitimate the definition of the “nature” of marriage as restricted to opposite-sex couples based on the rationale of promotion of an asserted link between procreation, child raising, and marriage—justifications that had been used and accepted in other jurisdictions to claim state interests in restricting marriage to opposite-sex partners.223 However, the court rejected the argument that substantive due process issues were also implicated, reasoning that there is no fundamental right of persons of the same sex to marry because same-sex marriage was not “so rooted in the traditions and collective conscience of Hawaii's people that failure to recognize it would violate the fundamental principles of liberty and justice.”224 In sending the case back to the lower court, the supreme court mandated that the state prove it had a compelling reason to limit civil marriage to opposite-sex partners.225 Absent such proof, the court stated, the ban would violate the protections against sex discrimination contained in the state's constitution.
In 1996, on remand, the state circuit court found that no such compelling state interest existed and that the state had failed to meet its burden to show that excluding same-sex couples from the institution of marriage was necessary and narrowly tailored to achieve a compelling state interest.226 The state's main argument was that it was preferable that children be raised by opposite-sex couples and that if raised by same-sex couples, the children would lose intimate contact with a parent of one gender and never observe at close hand the modeling of male-female relationships. All the evidence introduced at trial, by both sides, addressed the impact on children of lesbian and gay family settings.227 Not only did the court hold that the state failed to prove its assertions; it also stated that if same-sex marriage were allowed, the children being raised by gay or lesbian parents and same-sex couples might benefit because they might obtain certain protections and benefits that come with or become available as a result of marriage.228 The court thus concluded that the exclusion of same-sex couples from civil marriage violated Hawaii's constitution. The decision has been appealed back to the state supreme court, delaying the enforcement of the circuit court's decision.
Meanwhile, the Hawaii legislature responded by adopting the Reciprocal Beneficiaries Act in July 1997 for couples who were unable to marry as a matter of law (see above, sec. 7.4). The enactment did not stem from a real interest in expanding domestic partner benefits and providing same-sex couples with equal rights. The legislature of Hawaii initiated the act only because it hoped that doing so would avert the supreme court's ruling allowing legal marriage for same-sex couples.229 The act was thus an effort by the Hawaii legislators to circumvent providing full legal marriage for all citizens. The legislature hoped that the act would persuade the court that Hawaii no longer discriminated against same-sex couples, thereby eliminating the need to order the state to offer legal marriage.230
Another attempt to circumvent the supreme court's decision, which eventually met with success, took place on November 3, 1998. Following a state referendum, the voters in Hawaii ratified a constitutional amendment authorizing, but not requiring, the legislature to restrict marriage to opposite-sex couples.231 The constitutional amendment, providing that the legislature “shall have the power to reserve marriage to a man and a woman,” passed by an overwhelming majority of 69 percent to 29 percent, with 2 percent of the ballots blank or spoiled.232 Although the legislature had taken no action to that effect and had never passed a new statute banning marriage licenses for same-sex couples, on December 9, 1999, almost nine years after the suit was filed, the Hawaii Supreme Court rendered its final decision in the matter and declared the case moot.233 The court issued a brief order holding that the constitutional amendment took the issue out of the hands of the courts and gave the legislature the power to reserve marriage to opposite-sex couples. It required the lower court to reverse its decision and enter judgment in favor of the state.
The court did not overrule its 1993 decision that the denial of the freedom to marry is sex discrimination; it limited its decision to stating that the 1998 constitutional amendment removed access to marriage licenses from the reach of the state constitution's equal-protection clause. In effect, the decision terminated the move to recognize same-sex marriage in Hawaii. However, future claims for the protections, benefits, and responsibilities that are associated with marriage might be considered as a separate issue.234 In an important footnote to the decision, the court stated that even had the case been decided on the basis of sexual orientation discrimination, rather than discrimination based on sex, strict scrutiny was still required. The court interpreted the Hawaii constitution as implicitly prohibiting sexual orientation discrimination in the ambit of its prohibition of sex discrimination, both being regarded as a “suspect class.” Thus, and although the state would not be required to issue marriage licenses to same-sex couples, denial of benefits that flow from marriage might be deemed unconstitutional. Moreover, the case “spawned a revolution in the law as it stimulated state and federal legislation, prompted numerous prominent people and organizations to endorse same-sex marriage, persuaded the lesbian and gay legal movement to take up the quest for same-sex marriage as an important goal, and made the idea of same-sex marriage seem inevitable to a growing majority of the population.”235
Alaska was the second state to rule in favor of a same-sex couple, and it came close to recognizing same-sex marriage. In February 1998, after an Alaskan male couple sued for civil marriage, the Superior Court of Alaska ruled in the matter of Brause v. Bureau of Vital Statistics236 that because the right to choose one's life partner is fundamental, a ban on same-sex marriage must be justified by a compelling state interest in order to pass constitutional muster under the state constitution. The court did not legalize same-sex marriage in Alaska but mandated the state to demonstrate a compelling reason why such unions should be excluded from marriage.237 However, in November 1998 a referendum was conducted in Alaska, and the voters decided to directly alter their state constitution to define marriage as limited to a union between a man and a woman, thus barring any possibility that the state's courts could expand the definition to include same-sex couples.238 Consequently, the litigants decided to stop pursuing legal marriage and continue their fight for equal rights and benefits associated with marriage,239 but in September 1999 their lawsuit was dismissed.240
In another case, not directly related to the right of same-sex couples to marry, the attorney general of Georgia terminated the employment of a newly hired attorney, Robin Shahar, because she planned to have a religious marriage ceremony with her lesbian partner. The Eleventh Circuit upheld the decision of the attorney general, holding that the public interest in the efficient operation of the Law Department outweighed any personal associational interests that Shahar may have had.241 Although the case was confined to the field of employment discrimination law and the ruling was based on considerations of government efficiency, the court implicitly approved of a policy opposing the recognition of same-sex couples' right to marry.
As mentioned in the previous section, the most successful challenge to the exclusion of same-sex couples from marriage thus far occurred in Vermont.242 In July 1997 three same-sex couples brought a challenge, similar to the challenge brought in Hawaii, to the state of Vermont's denial of their application for marriage licenses. The plaintiffs argued that the state's refusal to issue marriage licenses to same-sex couples violated the right to equal protection and the “Common Benefit Clause” of the Vermont constitution, which provides in part that the “government is, or ought to be, instituted for the common benefit, protection and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are part of that community.”243 The case, Baker v. State of Vermont, reached the Vermont Supreme Court, which rendered its groundbreaking decision on December 20, 1999.244 The supreme court did not base its decision on federal law (i.e., the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution); it held that the state's statutes that excluded same-sex couples from the benefits and protections incident to marriage under Vermont law violated the “Common Benefits Clause” of Vermont's constitution (chap. 1, art. 7) and that the state could not exclude same-sex couples from the benefits and protections that its laws provide to opposite-sex married couples. Chief Justice Jeffrey L. Amestoy departed from the (federal) three-tiered approach in construing the state's constitution and held that all equal-protection challenges under the Vermont constitution should be evaluated by a flexible, fact-based analysis—a “balancing approach”—that takes into account the weight of the interests affected on both sides of the issue, thus not following the example of the Hawaii Supreme Court, that is, not requiring strict scrutiny and not basing the decision on a determination that sex or sexual orientation discrimination is a suspect classification.245
The principal purpose proffered by the state in justifying its exclusion of same-sex couples from the legal benefits of marriage was the state's interest in “furthering the link between procreation and child rearing.” The court flatly rejected this rationale as significantly underinclusive, stating that “many opposite-sex couples marry for reasons unrelated to procreation…some of these couples never intend to have children, [and] others are incapable of having children.” It further stated that a significant number of children today are actually being raised by same-sex partners and that increasing numbers of children are being conceived by such parents through a variety of assisted reproductive techniques. It noted that the Vermont legislature “has not only recognized this reality, but has acted affirmatively to remove legal barriers so that same-sex couples may legally adopt and rear the children conceived through such efforts.” The court thus concluded that “if anything, the exclusion of same-sex couples from the legal protections incident to marriage exposes their children to the precise risks that the State argues the marriage laws are designed to secure against. In short, the marital exclusion treats persons who are similarly situated for purposes of the law, differently.”246 The court ordered the state legislature to extend to same-sex couples the same rights, benefits, and protections that are offered only to married heterosexual couples in Vermont. It did not require the legislature to open up marriage to same-sex couples. In her partial dissent, Justice Denise Johnson stated that the majority should have enjoined the state from denying marriage licenses to same-sex couples (based on sex discrimination)247 since the only acceptable remedy for the discrimination would be the opening up of marriage to same-sex couples: “[A]llowing plaintiffs to obtain a license would further the overall goals of marriage, as defined by the majority—to provide stability to individuals, their families, and the broader community by clarifying and protecting the rights of married persons.”248
However, as discussed above, the legislature opted for a broad domestic partner scheme in lieu of same-sex marriage. The option of same-sex marriage was rejected by a vote of 8 to 3 in the House Judiciary Committee and by a vote of 125 to 22 of the full House of Representatives. The Senate Judiciary Committee voted unanimously to reject same-sex marriage in favor of the civil union bill, and the issue of same-sex marriage was never debated on the floor of the Senate. Instead, the legislature enacted the civil union law. Owing to the defense of marriage acts in more than thirty states and at the federal level, as well as general principles of conflict law—both of which are discussed in the sections that follow—an argument may be made that only by conferring the right to marry, which, at least potentially (i.e., if the defense of marriage acts were found to be unconstitutional), would have had federal and extraterritorial consequences, and not by enacting the civil union scheme, broad as it may be, would the Vermont legislature have fully met the equality mandate set down by the court.249 The Baker court left its doors open for the plaintiffs to return to court if the Vermont legislature did not place same-sex couples on an equal footing with opposite-sex married couples.250 The supreme court implicitly ruled that a broad domestic partner scheme conferring upon same-sex couples all the rights, benefits, and protections of marriage would suffice,251 and by enacting the civil union act, the legislature indeed provided same-sex couples all the rights and protections of opposite-sex marriage in the state of Vermont. The fact that the legislature chose a separate scheme for gay couples was in accordance with the court's recommendations as to how the legislature might effectuate its ruling.252 Thus, the civil union act seems to satisfy the requirements of the court in Baker. Moreover, once the civil union act took effect in July 2000, the three plaintiff couples terminated their lawsuit against the state, and in January 2001 the Vermont Supreme Court officially closed the case; the court's termination of jurisdiction indicates its satisfaction that civil unions meet the standards of the state constitution's equal-benefits clause and indicates that the court will not act to force inclusion of gays and lesbians under the existing marriage law.253
On April 11, 2001, a court challenge to the exclusion of same-sex couples from marriage was brought in Suffolk Superior Court in Massachusetts by seven gay and lesbian couples who had been denied marriage licenses at their city or town halls (Goodridge v. Department of Public Health).254 If the Goodridge case follows exactly the same path as its Vermont counterpart, a decision from the high court could come as early as March 2003.255 The lawsuit could be regarded as the first of the second wave of legal challenges seeking the right to marry (the first wave having ended with the supreme court decision in Vermont).256 The couples are asking for actual marriage, not for an alternative scheme such as civil union. Mary Bonauto, the civil rights director of Gay and Lesbian Advocates and Defenders and cocounsel in the landmark Vermont marriage case, expressed her view that there was a good chance Massachusetts would recognize gay marriage, since
Despite the advances made toward legal recognition of same-sex partnerships in general and same-sex marriage in particular, both in local governments and in the courts, a backlash has occurred in the federal and state legislatures.258 As a reaction to the Hawaii Supreme Court decision in the matter of Baehr,259 many states and the federal government have passed laws to prevent the possibility of recognizing marriages between same-sex couples, in case such marriages become possible in one or more states.
In 1996, although no state recognized same-sex marriage, Congress passed and the president signed the Defense of Marriage Act (DOMA),260 which consists of two parts. The first one relieves states of any obligation under the Full Faith and Credit Clause by declaring that states need not recognize same-sex marriages registered in other jurisdictions.261 The second part of the act provides that the federal government will recognize only opposite-sex marriages—defining marriage to be between a man and a woman for all purposes of federal law.262 Accordingly, all federal statutes and regulations referring to either married persons or spouses are to be read as applying only to opposite-sex couples. In December 1996 the Administrative Office of the U.S. Courts issued a memorandum construing DOMA, according to which same-sex marriages could not be recognized for benefit entitlements under the Federal Employee Retirement System, the Civil Service Retirement System, the Federal Employees Health Benefits Program, the Federal Employees Group Life Insurance, or the Family and Medical Leave Act.263 Although a provision in DOMA allows states not to recognize same-sex marriages performed in another state, the act does not mandate that states disregard such marriages; each state needs to determine individually whether to take advantage of the act's exception to the Full Faith and Credit Clause of the U.S. Constitution.264
Accordingly, between 1996 and mid-2001 (also as a reaction to the Hawaii Supreme Court decision), thirty-five states passed laws that restrict marriage to opposite-sex couples by specifically defining marriage as a union between persons of the opposite-sex, specifically prohibiting marriage between persons of the same sex in the state, and avoiding recognition of same-sex marriages lawfully performed in other states.265 The most controversial and publicized measure to prevent recognition of same-sex marriages has been California's “Knight Initiative” (“Proposition 22”), officially entitled the Limit on Marriage Initiative, an anti-same-sex-marriage ballot measure that was overwhelmingly passed by the voters on March 7, 2000.266 The initiative added the following provision to the California Family Code: “Only a marriage between a man and a woman shall be valid or recognized.”267 Accordingly, California would not recognize same-sex marriages entered into in other states. The passage of the initiative in California, the most populous state in the union, was viewed by many as the most contentious and crucial measure of its kind in the country and the most detrimental to the rights of same-sex couples. Moreover, the debate regarding the measure was framed in terms of a referendum on same-sex marriage itself, rather than the recognition thereof.268 Three more states are considering legislation that would prohibit recognition of same-sex marriages in their states.269 The “defense of marriage” laws have been termed by different scholars “anti-recognition statutes,” “anti-marriage laws,” or “anti-gay initiatives,”270 whereas proponents of these laws prefer to use more positive terms, such as “marriage recognition statutes.”271 I will employ the term anti-same-sex-marriage laws, which seems to be an accurate description of the nature and intent of these statutes. The anti-same-sex-marriage laws invoke a public-policy exception for out-of-state same-sex marriages, so that such marriages would be void in the states that have passed these statutes.272
It should be noted that while states have been adopting anti-same-sex-marriage laws, bills to legalize same-sex marriage have also been introduced in a number of states. However, these bills, except for the two that are still pending in Rhode Island and New York, have all failed.273 During the period January 2000 through December 2001, bills banning same-sex marriage have been introduced in fourteen states; four have passed, two are still pending, and such measures have been blocked in eight other states.274
Anti-same-sex-marriage laws may have detrimental implications regarding the equal rights of lesbians and gay men in other areas of life, beyond the exclusion from civil marriage. Lambda Legal Defense and Education Fund forewarns that such laws could be regarded as “a public policy license to discriminate against lesbian and gay couples” and could be used to prohibit domestic partnership registries and plans and to deny adoptions and custody to gay men and lesbians, as well as to allow sexual orientation discrimination.275 Although such concerns may be somewhat overwrought from a legal perspective, no doubt arguments of this sort will be used by opponents of gay rights.
Even if same-sex couples gain access to the institution of marriage in one state or another, the federal Defense of Marriage Act and similar state laws may perpetuate discrimination against their marriages across state lines. Moreover, the complexity of conflict laws, the abundance of choice-of-law theories, and the court's wide discretion in these matters suggest that it is far from clear whether even states that have not enacted versions of DOMA will recognize out-of-state same-sex marriages. I analyze these questions first with regard to general choice-of-law considerations and later in light of the federal and state defense of marriage acts.
Article 4, section 1, of the U.S. Constitution states that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial proceedings of every other State.” If same-sex marriage is legalized in one or more states, the question will arise whether marriages performed there are to be recognized in other jurisdictions. It is debatable whether the U.S. Constitution will compel such recognition, because the Full Faith and Credit Clause has not commonly been relied upon by courts in determining whether they should recognize out-of-state marriages (e.g., common law marriages) that could not have been performed within the jurisdiction.276 Such considerations therefore will be made not only in light of the Full Faith and Credit Clause but also based on other conflict-law rules. Notwithstanding the Full Faith and Credit Clause, in situations involving marriage validity, and according to traditional choice-of-law rules, courts have generally followed the rule of lex celebrationis, which states that a marriage valid where entered into should be recognized as valid everywhere, and the tendency in American conflicts cases is to validate marriages entered into in other jurisdictions, unless the legislature has rejected the rule of validity or the marriage is so abominable that validating it would offend the public sense of morality. Although each state has its own conflicts doctrine, many states look to the Restatement (Second) of Conflicts of Laws (1996) for direction,277 which states in its pertinent section that a marriage valid in the state where it was contracted will be recognized as valid by other states unless it violates a strong public policy.278
An argument that is likely to be made as soon as one state recognizes the right of same-sex couples to marry is that other states can avoid recognition since same-sex marriages violate public policy, especially in states that still criminalize consensual sodomy.279 Larry Kramer argues that the public-policy exception is unconstitutional and that states should uphold the validity of same-sex marriages, concluding that if same-sex marriage is allowed in one state, it should be generally recognized by other states unless other choice-of-law rules dictate otherwise.280 Other commentators have argued, based on the public-policy exception, that states are free to lawfully refuse to recognize such marriages and that one state cannot and should not “bind the world.”281Notwithstanding arguments about its constitutionality, there is an overwhelming tendency not to invoke the public-policy exception and to recognize out-of-state marriages,282 with the exception of those states that have marriage-evasion statutes that declare void marriages of persons who travel elsewhere in order to avoid their home state's marriage restrictions.283 Therefore, it is likely that at least some of the states would recognize “Vermont marriages.” Some strong arguments have been made that states are obliged to do so by virtue of conflict-law principles, the Full Faith and Credit Clause, the right to interstate travel, and the fundamental interest in marriage.284
The federal DOMA and state-enacted anti-same-sex-marriage laws that purport to prevent such recognition further complicate choice-of-law questions. These statutes indicate that those states have decided that there exists a strong public-policy exception to the recognition of same-sex marriages entered into in other states. It thus seems as though by virtue of these statutes, the question of recognition of same-sex marriages has been fully answered: no recognition for federal purposes and no recognition in the large number of states that have enacted versions of DOMA.
However, it is highly questionable whether the federal DOMA is constitutional. First, it seems that the federal DOMA could be challenged as a violation of the constitutional principle of full faith and credit. This would be based on the argument that Congress overstepped its grant of legislative authority, since it has power to give force to full faith and credit but not to remove the requirements of the clause. An argument can also be made that Congress intruded on a constitutional power reserved to the states, since matters relating to domestic relations have traditionally been within the sovereignty of the states. Second, the act can be challenged based on arguments grounded in substantive guarantees, such as the equal-protection component of the due process clause and respect for lawful marriages based on the fundamental right to marriage.285 With regard to the equal-protection argument, it has been suggested that the courts should invalidate DOMA based on the precedent set by the Supreme Court in Romer v. Evans,286 in which the Court held that a law that stemmed from mere animus toward gays and lesbians would not pass equal-protection scrutiny because it would be based on irrational prejudice and motivated by unconstitutional bias toward gays and lesbians without any legitimate governmental interest.287 Similar arguments support the assertion that state-enacted versions of DOMA are unconstitutional as well.288
Furthermore, even if state and federal DOMAs pass constitutional muster, there are scholars who claim that states would still be obliged to recognize out-of-state same-sex marriages, building on precedents pertaining to recognition of interracial marriages, according to which it would be wrong to invoke a public-policy exception for same-sex marriages.289
Only after one of the states makes marriage accessible to same-sex couples could challenges to these laws be brought before the courts. If one or more American states recognize same-sex marriages, most other states and the federal government will probably refuse to recognize such unions based on their defense of marriage acts or on the argument that such unions violate their public policies. Full recognition of same-sex marriages in the United States will be possible only if and when the U.S. Supreme Court decides that both state and federal DOMAs are unconstitutional and that states cannot constitutionally invoke a public-policy exception to refuse recognition of out-of-state same-sex marriages, as it did in the case of antimiscegenation laws more than thirty years ago.290 Until then, same-sex marriages in the United States will probably not be recognized beyond the borders of the individual state that decides in favor of opening up marriage to same-sex couples, and such recognition will likely be limited in its scope, that is, only for intrastate purposes. This would be so unless states recognize a same-sex marriage validly performed elsewhere in spite of their power not to do so (i.e., if the federal DOMA is upheld). Absent statute or case law making it clear which way the state will go, there will be no guarantee that a sister state will recognize such a marriage. The states that have enacted their own version of DOMA would not recognize a same-sex marriage lawfully entered into in another state, and if such mini-DOMAs are upheld, then recognition would be denied in the majority of sister states. Hence, it seems that full marital equality for gays and lesbians with opposite-sex married couples is not to be expected anytime soon. In the words of one commentator: “A married gay couple traveling on this country's interstate roadways would, without much fiction, present its marriage license at each border crossing. And the legend would read, ‘void where prohibited by law.’”291 |
Many respondents in stiers study cited political motivations for holding a commitment ceremony.
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