Legal Briefs: Same-Sex Marriage

What does it mean?
by Connie Moore, Debbie Hunt, and Joshua Myers
Illustration by Caleb Smith

The nation’s current same-sex marriage laws are in a constant state of flux. This causes a lot of confusion and uncertainty, particularly in the areas of marital benefits and marital dissolution. Even the information provided in this article will likely be out of date by the end of 2012. Until there is full federal recognition for same-sex marriage that is enforceable at the state level, this will continue to be a challenging legal issue.

What Is Same-Sex Marriage?

The term same-sex marriage is often used to describe the legal recognition of a same-sex couple’s relationship. However, most states in the U.S. do not legally grant or recognize true, legal same-sex marriages. The confusion lies in the interchangeable use of the legally defined terms civil marriage, civil union, and domestic partnership. It is important to understand the differences between a same-sex marriage, a civil union, and a domestic partnership because each provides a different level of legal protection to the same-sex couple involved.

A civil marriage—what most people simply think of as marriage—is granted by a state government when it issues a marriage license. The license gives legal recognition and all the legal protections granted by the state to the married couple. This state license also imposes legal obligations on each partner in the marriage.

Civil unions are not civil marriages. A civil union is a legal mechanism used by a state to grant same-sex couples a legal status similar to a civil marriage. The main difference between civil unions and civil marriages is that civil unions only grant state-level rights to the couple, and those rights do not have to be recognized by other states.

Finally, some states, counties, and cities allow same-sex couples to register as domestic partners. The partners in a domestic partnership are not legally joined in a civil union or a marriage. Domestic partnerships do not reach the level of legal protections afforded by civil marriages or civil unions, and the rights granted to domestic partners vary among states, counties, and cities.

State Recognition of Same-Sex Marriages, Civil Unions, and Domestic Partnerships

The legal recognition of same-sex relationships is still very new to our legal system. There are many legal issues that are yet to be resolved, and they often result in challenges and headaches for same-sex couples who choose to marry. One issue that LGBT lawyers are seeing across the country is that same-sex couples recognize that they have the ability to get married in some jurisdictions, but they really do not understand the legal impact of the marriage—and most importantly, the greater challenge of dissolving that legally binding relationship.

There is no uncertainty in Texas: same-sex marriages and civil unions are not granted and are not recognized from other states. For couples who are considering marriage in another jurisdiction, it’s important to know which states grant same-sex marriages, compared to those that only grant civil unions and domestic partnerships. As of early 2012, only Connecticut, Washington DC, Iowa, Massachusetts, New Hampshire, New York, and Vermont grant marriage licenses to same-sex couples and recognize same-sex marriages from those other states. The recent federal appellate court decision in California should re-open the doors for same-sex marriage, but until the stay is lifted, California recognizes only legal marriages performed within its borders before November 4, 2008. Maryland, Washington, and New Jersey have bills pending to grant same-sex marriage, and reports are favorable that these bills will become law. Three other states (New Mexico, Colorado, and Nevada) have moderate-to-strong support for same-sex marriage, and the support seems to be growing. These states are worth watching over the next few years.

There are a number of states that grant state-level spousal rights to same-sex couples. These spousal rights are comparable to the spousal rights afforded to opposite-sex couples in those states. Currently five states—Delaware, Hawaii, Illinois, New Jersey, and Rhode Island—offer same-sex residents the option of entering into a civil union, and four states—California, Nevada, Oregon, and Washington—offer their same-sex residents the option of entering into domestic partnerships with rights equal to opposite-sex couples. Additionally, Maine and Wisconsin allow their same-sex residents to enter into domestic partnerships with limited state-level spousal rights.

Federal Recognition

As long as the U.S. Defense of Marriage Act (DOMA) is in force, there is no recognition of same-sex unions of any kind at the federal level. This means, among other things, that unlike opposite-sex civil marriages, no federal government benefits, such as favorable tax treatment, Veteran’s benefits, or Social Security benefits, are currently available to partners in same-sex civil marriages. There are several important challenges to the federal DOMA that hopefully will have positive outcomes in the near future, opening the door for federal recognition.

International Marriage

In addition to the handful of states that recognize same-sex marriage, there are also some countries that recognize same-sex marriage and allow non-residents the right to marry while visiting these countries. The decision to obtain a marriage license from a foreign nation is no different than obtaining one from another state. Those states that recognize same-sex marriages from other states will also recognize an international marriage. At the federal level, the United States does not distinguish between same-sex couples married in another country from those married in the U.S.

Canada was one of the first countries to allow same-sex marriages, and thousands of Americans have crossed the border to marry. A recent stir was caused when media outlets began reporting that the Canadian government was invalidating all same-sex marriages performed for non-resident couples. Thankfully this was not true, but was simply a position being advocated by government attorneys in a marriage dissolution case. No Canadian court has accepted this argument, and there is no reason to believe that either Canada’s courts or its parliament would take this position. In response to the erroneous news reports, the Canadian government announced that all same-sex marriages performed in Canada remain valid.

Should My Partner and I Get Married?

Gay or straight, marriage is a huge decision and should never be entered into lightly. However, for same-sex couples it is an even bigger decision because of the uncertainty in the law. Currently, couples who legally marry but reside in a state that does not recognize the marriage gain no legal benefit from the marriage itself. Additionally, there may be other unintended results from a marriage, such as the loss or denial of domestic partner benefits by a corporate employer because of the marriage.

At some point we believe that there will be full federal recognition of same-sex marriages in the U.S., so it is important to understand what marriage means—particularly if the relationship ends. Prenuptial agreements can be used to eliminate any uncertainty in property ownership interests acquired before or during the marriage, and marital estate-planning documents can ensure that both partners have full protection in the event of incapacity or death.

Whether to marry is a personal decision that can only be made by you and your partner, but we recommend that you consult with an attorney who deals with these kinds of issues so you are fully informed on your options and possible repercussions.

Next month we will discuss the current state of dissolving same-sex marriages and civil unions.

Moore & Hunt is the first women-owned boutique law firm in Houston to openly focus on lesbian, gay, bisexual, and transgender issues. Operating in the same location since 1987, the firm is comprised of attorneys Connie Moore and Debra E. Hunt. Moore works with families of all types with formation issues (adoption, surrogacy, and parentage in assisted reproduction) and family dissolution (divorce and custody litigation). Hunt concentrates on personal document drafting (wills, trusts, and powers of attorney), estate planning, probate litigation, contract negotiations and disputes, corporation and small business formations, and real estate matters.

Both attorneys are members of the National Family Law Advisory Council of the National Center for Lesbian Rights. The firm is a part of the cooperating attorney network of the Lambda Legal Defense and Education Fund. Moore and Hunt are charter members of the Texas State Bar LGBT Law Section. Moore has been trained in collaborative family law and is a strong believer in the collaborative model to resolve family disputes.

Joshua Myers is a third-year law student at South Texas College of Law in Houston.



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