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Can Same-Sex Couples Marry?

Historically, state laws would only recognize a marriage between a husband and wife of the opposite gender. Some state statutes focused on the issue of same-sex marriage and declared that such a union would not be valid. Other state laws did not refer to gender in statutes regarding marriage. However, the courts in many states have still read the law as not allowing marriage between individuals of the same gender. In recent years, this view has been changing. It is true that the majority of states still do not recognize same-sex marriage, but a minority of states do. Moreover, there are some states that do not have same-sex marriage, but have laws that protect same-sex unions; these include civil unions and domestic partnerships.

Presently, there are only two states that have statutes recognizing marriage between individuals of the same gender, California and Massachusetts. Most recently, California’s Supreme Court ruled that any statute that deprived persons of the right to marry (regardless of gender) was unconstitutional. Therefore, California’s marriage statute was changed to include same-sex couples. The law and courts in Massachusetts also recognizes marriage between individuals of the same gender. Other states, such as Connecticut, New Jersey, Vermont and Washington (to name a few) have statutes that recognize civil unions or domestic partnerships and the protections that each affords same-sex couples. However, these states do not specifically recognize same-sex marriage. There are additional states with same-sex marriage statues in the legislatures and it is probable that additional jurisdictions will extend the right to marry to couples of all genders in the future.

What are Civil Unions and Domestic Partnerships?

Although most states do not have statutes, giving same-sex couples the same rights regarding marriage as opposite-gender couples, a minority of states offer same-gender couples other protections that are similar to some of the benefits that opposite-gender couples enjoy. Of these protections are civil unions or domestic partnerships. The purpose of a civil union is to give same-sex couples the same rights and privileges as married couples. However, civil union states will still not recognize the union as a marriage. Some of the benefits of civil unions are inheritance/rights of survivorship, family leave, workers compensation, wrongful death claims, adoption and the right to make medical decisions. However, the rights and benefits associated with a civil union are not upheld in states that do not recognize such a union.

Similarly, domestic partnerships give same-sex couples some of the rights and benefits that married couples enjoy. However, where civil unions give most of the benefits of marriage, the benefits of domestic partnerships are fewer. The protections that are available for a domestic partnership differ from state to state, but often include survivorship rights and employment benefits. Some requirements for a domestic partnership are that the two persons are cohabitating, both eighteen or older (of the age of majority), not already married, in a civil union or a domestic partnership and (in some jurisdictions) have signed a Declaration of Domestic Partnership form. Like civil unions, domestic partnerships are not recognized by states that do not consider a civil union or domestic partnership valid. In those states, the rights and benefits associated with each type of union will not be extended to the couple.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

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Key, Greer, Harrison, & Casey

Key, Greer, Harrison, & Casey