Same-Sex Marriage

The legal system can be slow to catch up with the changing realities of modern life. Traditionally, states did not recognize same-sex marriages. However, starting with Massachusetts in 2003, an increasing number of states have extended marriage to same-sex couples. The Massachusetts Supreme Court established a precedent when it ruled that denying same-sex couples the right to marry constituted illegal discrimination. Crucially, it also found that civil unions or domestic partnerships were not valid substitutes.

Since that Massachusetts decision, many other states have followed in its footsteps. In California, a federal judge ruled that a law that banned same-sex marriage in that state violated the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. This watershed moment in the nation’s most populous state showed a broadening recognition that same-sex couples should have the same rights and responsibilities as other couples. In 2013, Hawaii took charge outside the courtroom when its governor signed a bill that specifically legalized same-sex marriage. Illinois soon did the same, and other states have similarly used the political process as a faster alternative to seeking reform through the courts.

A key breakthrough for same-sex couples came in a 2013 Supreme Court decision involving the Defense of Marriage Act. Passed in 1996, this law limited the federal government’s recognition of marriage to only a union between one man and one woman. Same-sex couples thus were excluded from the rights and benefits available to married couples under federal law. Without access to those benefits in areas such as taxes, Social Security, and immigration, securing the right to marry at the state level represented only a limited victory.

Fortunately for same-sex couples, the United States Supreme Court held that a key part (Section 3, which defined marriage for federal purposes as between a man and a woman) of the Defense of Marriage Act was unconstitutional. The federal government quickly changed its policies regarding same-sex couples in response to this decision. Tax exemptions, Social Security benefits, immigration privileges, federal employee benefits, and military benefits have become available to married same-sex couples. You should be aware, however, that each federal agency applies its policies individually.

For example, some federal agencies recognize all same-sex marriages so long as the marriage was conducted in a state that allows same-sex marriages.  Other agencies look to the state of residence of the couple. So, if a same-sex couple was married in California, but lives in a state that does not recognize such relationships, some federal agencies might not recognize that marriage as valid. For same-sex couples contemplating marriage, an experienced family law attorney can guide you on how federal and state laws will affect your rights and benefits.

Civil Unions and Domestic Partnerships

Notwithstanding the rapid change in this area, a majority of states still do not extend the right to marry to same-sex couples. While this situation continues to change, it is worth knowing what alternatives are offered. Many people believe that civil unions or domestic partnerships are inferior to marriage and symbols of archaic discrimination against same-sex relationships, but they may be better than having no formalized relationship status at all.  

In states that recognize civil unions or domestic partnerships, same-sex couples in such relationships often have similar rights as married couples under the state family or domestic relations law. So in these states, same-sex couples in civil unions or domestic partnerships typically are entitled to the same medical rights (e.g., the right of hospital visitation) and family leave benefits provided to people in traditional marriages. Additionally, some states allow such same-sex couples to adopt children or sue for the loss of their partner in an accident. While they cannot typically file federal taxes jointly, they can file state taxes jointly. When one partner dies without a will, the other partner has the same right to his or her loved one’s property that a spouse in a marriage would have.  In the event of a dissolution, couples in civil unions or domestic partnership also may seek child custody, child support, spousal support, and protection from domestic violence .

It is important to remember that these alternatives to marriage are generally not recognized under federal law. Presently, same-sex couples in civil unions or domestic partnerships cannot get Social Security benefits or any tax exemptions or benefits, and they cannot use their relationship status to bring partners into the United States.

Deciding Whether Same-Sex Marriage Works for You

As with any couple, marriage may not be the right solution for every same-sex couple. Getting married has many advantages, such as potentially opening the door to tax and Social Security benefits from the federal government. Couples who are interested in building a family together may find that marriage makes sense for them. If you want to share your assets with your partner, marriage can help you achieve that goal more easily. Inheritance of property after death also becomes simpler if a couple is married. Moreover, marriage has an intangible emotional resonance in the minds of many people.

On the other hand, you may want to think twice about getting married if your partner has significant debts. Without a prenuptial agreement and careful financial planning, marriage could make you responsible for those debts. Depending on the income of your partner, you also could lose access to Social Security, medical, or welfare benefits.