Same-Sex Marriage

Historically, states have not recognized same-sex marriage. In 2003, Massachusetts extended marriage to same-sex couples, and a number of other states followed suit in subsequent years. The Massachusetts Supreme Court also ruled that denying same-sex couples the right to marry constituted illegal discrimination, and that civil unions and domestic partnerships were not valid substitutes. Other state courts around the country have made similar rulings, while some states have signed bills legalizing same-sex marriage.

United States v. Windsor: The End of DOMA

In a 2013 case entitled United States v. Windsor, the US Supreme Court ruled on the Defense of Marriage Act (DOMA), a 1996 law that limited the federal government’s recognition of marriage to only those unions that involved one man and one woman. DOMA expressly excluded same-sex couples from federal rights and benefits afforded to heterosexual couples, including those related to Social Security, immigration, taxes, military service, and employment. The Court ruled that the definition of marriage put forth under DOMA was unconstitutional. This resulted in the federal government changing its policies, particularly with regard to those same-sex couples that were lawfully married within their own states of residence. However, couples in other states continued to face numerous barriers to equality.

Obergefell v. Hodges: The Advent of Same-Sex Marriage

With the US Supreme Court’s 2015 ruling in Obergefell v. Hodges, same-sex marriage was legalized in every state. The Court ruled that all same-sex couples have a fundamental right to marry under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. This means that it is unlawful for any state to deny a same-sex couple a marriage license. It is also unlawful for one state to refuse to recognize a same-sex marriage lawfully performed in another state.

Once married, same-sex couples enjoy the same rights as heterosexual spouses. For example, if your employer offers employment benefits such as medical benefits to opposite sex spouses of employees, it must extend the same benefits to your same-sex spouse. Similarly, most employers are required to carry workers’ compensation insurance, and among the benefits are death benefits to spouses. same-sex spouses must now be able to receive death benefits from a workers’ compensation insurer that provides them to opposite sex spouses. State laws of inheritance and wrongful death must now be applied to provide same-sex spouses with the same rights they would have to inherit or recover compensation if they were an opposite sex spouse of a decedent.

Generally, the US Supreme Court’s decisions about fundamental rights are given a retrospective effect. This means that same-sex spouses can potentially receive retroactive relief in situations where they experienced discrimination prior to Obergefell. For example, in states where same-sex couples were previously unable to file their state taxes jointly, they should be able to jointly re-file for certain previous years so that they receive the same benefits from filing jointly as other married couples. There may be avenues for relief with respect to issues such as life insurance, divorce, and custody arrangements as well.

Effects of the Obergefell Decision

Children that are born to married couples are presumptively recognized to be children of both spouses. This means that any children who are born while a same-sex couple is married should receive the benefit of this presumption. For example, both parents should be able to sign permission slips for field trips and make medical decisions for a child. Nonetheless, in many states it is still advisable to secure a second parent adoption or parentage judgment in the event that this presumption is not applied consistently.

The legalization of same-sex marriages may have adverse implications for those who would prefer to be in domestic partnerships or civil unions. For example, many employers put domestic partnership benefits into place to provide benefits to those with same-sex partners. Due to the difficulty of administering these benefits and the negative tax implications, many employers are now phasing out these benefits under the rationale that same-sex couples can now marry.

The Equality Act is a proposed law that would revise the Civil Rights Act of 1964 to provide protections on the basis of sexual orientation and gender identity. It was reintroduced in 2017 but has not yet been passed and is unlikely to be passed in the current political climate. In the meantime, no federal law expressly prohibits employment or housing discrimination on the basis of sexual orientation and gender identity. Until there is a such a federal law, many opposite sex couples in states that don’t offer these legal protections may be concerned about taking the public step of getting married.