I. Overview

(a) The following state issues marriage licenses to same-sex couples: Massachusetts

(b) The following states allow civil unions, providing state-level spousal rights to couples of the same sex: Connecticut, Vermont, New Jersey, New Hampshire

(c) The following states provide nearly all state-level spousal rights to unmarried couples in the form of domestic partnerships: California, Oregon

(d) The following states provide some state-level spousal rights to unmarried couples of the same sex: Hawaii, Maine, District of Columbia, Washington

(e) The following states have no provisions prohibiting same-sex marriage: Connecticut, Massachusetts, New Jersey, New Mexico, New York, Rhode Island

(f) In 1996, Congress passed the Defense of Marriage Act (DOMA), which bars federal recognition of same-sex marriages and allows states to do the same. The following 41 states have adopted statutory Defense of Marriage Acts, prohibiting same-sex marriage. Some of these states, however, condone domestic partnerships. Others have created a parallel system for same-sex couples called civil unions, while prohibiting marriage between two people of the same sex.
 
Alabama
Alaska
Arizona
Arkansas
California (allows domestic partnerships)
Colorado
Delaware
Florida
Georgia
Hawaii (allows some degree of domestic partnership)
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine (allows some degree of domestic partnership)
Maryland
Michigan
Minnesota
Mississippi
Missouri
Montana
New Hampshire (condones civil unions)
North Carolina
North Dakota
Ohio
Oklahoma
Pennsylvania
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont (condones civil unions)
Virginia
Washington (allows some degree of domestic partnership)
West Virginia
Wisconsin
Wyoming

(g) The following 27 states have amended their state constitutions to define marriage to be between a man and a woman. Three of the following states have statutory language that pre-dates DOMA.

Alabama
Alaska
Arkansas
Colorado
Georgia
Hawaii (allows some degree of domestic partnership)
Idaho
Kansas
Kentucky
Louisiana
Michigan
Mississippi
Missouri
Montana
Nebraska
Nevada
North Dakota
Ohio
Oklahoma
Oregon (allows domestic partnerships)
South Carolina
South Dakota
Tennessee
Texas
Utah
Virginia
Wisconsin

(h) The following states have attempted to provide same-sex couples lawful recognition, but progress on the issue has either stalled or is currently pending:

Alaska
October 2005: Supreme Court rules that state and municipal governments must provide benefits to same-sex partners of employees, the same that spouses receive.

Arizona
November 2006: becomes the only state in which an initiative for a constitutional amendment to define marriage between a man and a woman fails.

Hawaii
In 2007, bills to legalize civil unions were unsuccessful when lawmakers did not vote on the legislation. House Bill 907 and Senate Bill 1062 (authorizing civil unions) were carried over to the 2008 Regular Session.

Louisiana
October 5, 2004: state district judge nullified constitutional amendment to ban same-sex marriage, ruling that the issue was not properly and legally presented to voters.

Maryland
January 2006: Circuit Court rules that state law banning same-sex marriage is discriminatory and “cannot withstand constitutional challenge.” The case is being heard by the Court of Appeals.

Nebraska
May 2, 2005: a federal court struck down Nebraska’s same-sex marriage ban in the state constitution.

New Mexico
February 20, 2004: NM Attorney General issues opinion that same-sex marriage is illegal.

New York
February 2, 2005: Supreme Court Justice rules state law prohibiting same-sex marriage is unconstitutional.

Rhode Island
In the summer of 2001, the Rhode Island legislature made domestic partner health insurance benefits available to state employees. It did so by changing the definition of “dependent” in state insurance laws. In 2006, Rhode Island extended these benefits to include family and medical leave to care for an ill partner and COBRA health benefits for a domestic partner.

Rhode Island neither explicitly allows nor prohibits same-sex marriage; thus, the Rhode Island Attorney General issued an opinion allowing the state to recognize same-sex marriages performed in Massachusetts. However, when a same-sex couple married in Massachusetts sought a divorce in 2007, their complaint was denied.

II. Civil Unions

Civil unions grant all rights, obligations, and responsibilities that are granted to spouses under state law. Civil unions, however, do not protect against discrimination by other states and does not allow any claim to the 1,138 federal rights associated with marriage. (Federal rights are specifically excluded under the 1996 federal Defense of Marriage Act, which defines marriage as between one man and one woman). Also, civil unions do not hold the same social importance as marriages.

There are some limitations:

1. Gay couples won’t qualify for federal Social Security or veterans survivor benefits or be able to sponsor a foreign national to immigrate as a spouse.
2. Federal laws governing multi-state employer health plans will continue to allow the companies to discriminate against their united gay employees, but such discrimination will be illegal under state-regulated health plans that cover married couples.
3. United gay couples will pay taxes on most, if not all, of the value of costlier health insurance plans – a cost not passed onto married couples.
4. Unlike married heterosexual couples, united gay couples cannot file joint federal income tax returns.
5. More than 9,300 companies already extend benefits to gay couples, including The Associated Press, UPS, and Verizon. Though that number is growing, many companies still do not extend benefits.

Gay couples won’t pay state taxes to transfer property from one partner to the other, but they could be liable for federal gift taxes.

Connecticut

As of October 1, 2005, parties of civil unions “shall have all the same benefits, protections and responsibilities under [Connecticut] law … [that] are granted to spouses in a marriage….” (Civil Union Law, Public Act 05-10, §§1(1), 14-15). A person is eligible to enter into a Connecticut civil union if that person:

1. Is not a party to another civil union or a marriage;
2. Is of the same sex as the other party to the civil union;
3. Is at least 18 years of age (although a minor between ages 16 and 18 will be deemed to be over 18 for the purpose of obtaining a civil union license if the minor has received a court order of emancipation);
4. Is not closely related by blood to the other party to the civil union (matching essentially the same restrictions applicable to marriage in Connecticut); and
5. Is not under conservatorship or guardianship or has the acknowledged, written consent of the conservator or guardian.
(Civil Union Law, Public Act 05-10, §§2-3, 9-10 and 19-20).

There is no residency requirement for marriage in Connecticut and, by clear implication, no residency requirement for a Connecticut civil union. Therefore, nonresidents should be able to readily obtain a civil union in Connecticut provided they are otherwise eligible. For non-resident couples, the civil union must be celebrated in the town where the civil union license is issued.

New Hampshire

As of January 2008, parties of a civil union “shall be entitled to all the rights and subject to all the obligations and responsibilities provided for in [New Hampshire] law that applies to parties who are joined together [in a marriage].” (Civil Union Law, N.H. Revised Statutes, Chapter 457-A, §6).

As of January 1, 2008, a person is eligible to enter into a New Hampshire civil union if that person:

1. Is unmarried and is not a party to another civil union;
2. Is of the same sex as the other party to the civil union;
3. Is at least 18 years of age (in marriage, males must be 14, females, 13.); and
4. Is not closely related by blood to the other party to the civil union (matching essentially the same restrictions applicable to marriage in New Hampshire).
(Civil Union Law, N.H. Revised Statutes, Chapter 457-A, §§2-4).

Gay couples with one member working for state or local governments in New Hampshire now will get the same pension benefits as their heterosexual counterparts. But gay couples with a federal employee won’t get the same recognition under the federal retirement system.

New Jersey
 
The New Jersey Legislature passed a statute allowing domestic partnerships in 2003, taking effect in July of 2004, and the statute remains in place even though New Jersey enacted civil unions beginning February 19, 2007. The civil union law grants gay couples almost all the rights granted to married couples under New Jersey state law, including laws regarding adoption, inheritance, hospital visitation and medical decision-making rights and the right not to testify against a partner in state court.

Domestic partners who enter into a civil union automatically terminate their domestic partnership; however, those domestic partners who elect not to enter into a civil union will be allowed to remain as domestic partners.

Vermont
 
As of 2001, civil unions between same-sex couples are constitutionally entitled to all of the protections and benefits provided through law to opposite-sex married couples. A couple may enter into a civil union if they meet the following criteria:

1. Neither person may be a party to another civil union or a marriage;
2. The parties must be of the same sex;
3. Each person must be at least age 18, be competent, and not be under guardianship or have written consent from the guardian; and
4. The parties may not be closely related by blood.

Dissolving a civil union requires that one of the spouses in the civil union live in Vermont continuously for at least six months before filing an action for dissolution, and continuously for one year before the dissolution can be granted.

III. Domestic Partnerships – California and Oregon

Domestic partnership is a legal or personal relationship between two individuals who live together and share a common domestic life but who are not joined in a traditional marriage or in a civil union. However, in some jurisdictions, domestic partnership is essentially equivalent to civil union and even marriage. The terminology is still evolving, and each state offers varying degrees of protection.

California

Registered domestic partners have the same rights, protections, and benefits, and are subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.

Requirements:

1. Both persons have a common residence.
2. Neither person is married to someone else or is a member of another domestic partnership with someone else that has not been terminated, dissolved, or adjudged a nullity.
3. The two persons are not related by blood in a way that would prevent them from being married to each other in the state.
4. Both persons are at least 18 years of age.

Oregon

As of May 2007, same-sex couples may enter into a domestic partnership if at least one individual is an Oregon resident and both are at least 18 years of age and otherwise legally capable of consenting. Oregon domestic partners are granted nearly all rights afforded to married couples (similar to California’s domestic partnerships) including hospital visitation rights and medical decision-making for partners; automatic parentage of non-biological parents for children born after the domestic partnership is established; significant legal and financial obligations to each other; and dissolution provisions similar to legal divorce.

IV. Domestic Partnerships Conferring Varying Degrees of Rights and Benefits

District of Columbia

D.C.’s Health Care Benefits Expansion Act of 1992 authorizes unmarried persons, whether of the same sex or different genders and regardless of one’s place of residence, to register as domestic partners in the District of Columbia (D.C. Law 9-114, effective June 11, 1992). However, even though the law was passed in 1992, Congress prohibited the District from spending local funds to implement the law until Fiscal Year 2002. (Pursuant to the federal constitution, the U.S. Congress exercises oversight of the nation’s capital city).

Domestic partners share the same rights as family members and are entitled to visit partners in the hospital and to make decisions regarding their treatment and their remains after death. The law also grants specific privileges to state government employees. If one of the partners was employed by the District after 1987, the employee is entitled to share health care insurance with his or her partner, and use annual leave or unpaid leave for the care of a partner and partner’s dependents, for the funeral of a partner, or for the birth or adoption of a dependent child. 

Additionally, the Domestic Partnership Equality Amendment Act of 2006, D.C. Law 16-79, effective April 4, 2006, grants domestic partners even more of the rights of heterosexual spouses regarding inheritance, probate, guardianship, and mortgage borrowing.

Hawaii

After adopting the statutory Defense of Marriage Act, Hawaii amended its constitution in 1998 to read “the Legislature shall have the power to reserve marriage to opposite-sex couples.” Therefore, rather than writing in a ban against same-sex marriage, the amendment granted the legislature the authority to enact such a ban if seen fit. Consequently, the Hawaii legislature passed a law prohibiting same-sex marriage shortly following the amendment.

Hawaii does allow a reciprocal beneficiary relationship, which is “a legal partnership between two people who are prohibited from marriage” (HRS § 572C-2). Certain rights and benefits of married couples are extended to the two individuals who enter into a reciprocal beneficiary relationship and they must register their relationship with the Department of Health. Couples may enter into a reciprocal beneficiary relationship provided that:

1. There are no state residency or U.S. citizenship requirements.
2. The two individuals entering into a reciprocal beneficiary relationship are both at least 18 years of age.
3. Neither of the two individuals entering into a reciprocal beneficiary relationship are already married nor a party to another reciprocal beneficiary relationship.
4. The consent of each individual entering into the reciprocal beneficiary relationship has not been obtained by force, duress, or fraud.
5. The two individuals are prohibited by state law from marrying one another, including but are not limited to relationships such as brother and sister of the half as well as of the whole blood, uncle and niece, aunt and nephew, widowed mother and her unmarried son, and two persons of the same sex/gender.

In 2007, bills to legalize civil unions were unsuccessful when lawmakers did not vote on the legislation. House Bill 907 and Senate Bill 1062 (authorizing civil unions) were carried over to the 2008 Regular Session.

Maine

In 2004, the state approved “An Act to Promote the Financial Security of Maine’s Families and Children.” This law creates a domestic partnership registry in Maine and affords certain rights to registered domestic partners in the event of a partner’s death or incapacity. Domestic partners are “two unmarried adults who are domiciled together under long-term arrangements that evidence a commitment to remain responsible indefinitely for each other’s welfare.” (18-A M.R.S.A § 1-201).

Protections gained by registering as a domestic partner under Maine state law:

1. Inheritance rights: In the absence of a will, registered domestic partners in Maine are given the same inheritance rights as a legally recognized spouse (although unequal tax burdens remain).

2. Legal priority: The law provides that a domestic partner will be treated like a spouse when seeking to be a guardian of his or her partner in the event of that partner’s incapacity; will have the same priority as a legal spouse in seeking a protective order concerning the partner’s estate or the welfare of the partner; is entitled to notice of hearings around the appointment of guardians in the event of the partner’s incapacity; and is entitled to notice of the issuance of protective orders in the event of death.

3. Survivorship rights: In the event of one partner’s death, the law makes the surviving domestic partner the first next of kin when determining who has the right to make funeral and burial arrangements. As with surviving spouses, if a surviving domestic partner is estranged from the partner at the time of death, the domestic partner may not have custody and control of the deceased’s remains.

Written wills and advance directives will supersede this law.

Requirements for registration:

1. The domestic partners have been living together in the state for at least 12 months before the filing;

2. Neither domestic partner is married or in a registered domestic partnership with another person; AND

3. Each domestic partner is the sole domestic partner of the other and expects to remain so.

Washington

In April of 2007, the state legislature approved a bill creating domestic partnerships, granting some of the rights of married couples. The law took effect on July 22, 2007. Chapter 6, 2008 Laws, signed by the Governor on March 8, 2008 and effective June 12, 2008, expands the rights and responsibilities of domestic partners.

V. Same-Sex Divorce/Annulment

Missouri

As of April 2008, the Fifth Circuit Judicial Court is considering whether a same-sex couple may be granted an annulment. The couple moved to Missouri shortly after being legally wed in Massachusetts.

Rhode Island

On December 7, 2007, the Rhode Island Supreme Court denied a divorce petition by two state residents who were legally married in Massachusetts in 2004. The case is believed to be among the first where a same-sex couple married in Massachusetts sought a divorce elsewhere. The decision hinged on the Court’s interpretation of the statutory meaning of the word “marriage”; since the Court found the word to mean a union between persons of the opposite sex, it held that the state’s family courts were without jurisdiction to entertain a petition for divorce in a same-sex marriage. Legislation has been introduced during the 2008 Legislative Session to address the issue, but the measures face uncertain futures.