The effect of same-sex marriage laws for attorneys is wide-ranging. In addition to the obvious equal rights issue, practitioners need to be aware of the changing state of the law in this area as it relates to taxes, health insurance, hospital visits, housing discrimination, adoption and parenting, employment, family law and immigration.
In what may be seen as a dramatic shift towards greater recognition of equal rights for same-sex partners to marry, four ballot measures on the issue topped the headlines following the 2012 election.
All four dealt with the recognition of same-sex marriage although each took a slightly different procedural path. Maine passed a voter initiative recognizing same sex marriage, Maryland and Washington passed referendums on laws recognizing same-sex marriage that were passed by their legislatures, and Minnesota struck down a proposed amendment to the state constitution that would limit marriage to one man and one woman.
Previously, proponents of same-sex marriage had not had much success at the polls; progress had been achieved only through the courts.
Prior to the election, only six states, Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, and the District of Columbia issued marriage licenses and recognized out of jurisdiction marriages. California also did briefly, prior to passage of Proposition 8, which was later overturned and has now been appealed to the U.S. Supreme Court.
The Maine ballot measure was particularly significant because, because for the first time, a state passed a voter initiative recognizing same-sex marriage.
Maine's Question 1 read: "Do you want to allow the State of Maine to issue marriage licenses to same-sex couples?"
Entitled An Act To Allow Marriage Licenses For Same-Sex Couples and Protect Religious Freedom, the new law will go into effect 30 days after the governor proclaims the election results. It includes the following provisions:
-Sec. 1. 19-A MRSA 650-A: Marriage is the legally recognized union of 2 people. Gender-specific terms relating to the marital relationship or familial relationships must be construed to be gender-neutral for all purposes throughout the law, whether in the context of statute, administrative or court rule, policy, common law or any other source of civil law.
-650-B: A marriage of a same-sex couple that is validly licensed and certified in another jurisdiction is recognized for all purposes under the laws of this State.
-Sec. 4. 19-A MRSA 655, subsection 3: This chapter does not require any member of the clergy to perform or any church, religious denomination or other religious institution to host any marriage in violation of the religious beliefs of that member of the clergy, church, religious denomination or other religious institution. The refusal to perform or host a marriage under this subsection cannot be the basis for a lawsuit or liability and does not affect the tax-exempt status of the church, religious denomination or other religious institution.
Thus, the law goes beyond just authorizing same-sex marriage and recognizing same-sex marriage that is valid in another state. Importantly, the law specifically states that clergy members are not required by the law to perform any marriage that would violate their religious beliefs.
In Maryland, the ballot measure was essentially a referendum on a law, the Civil Marriage Protection Act, passed earlier in 2012 by the state legislature. The measure, Question 6, stated:
"Establishes that Maryland's civil marriage laws allow gay and lesbian couples to obtain a civil marriage license, provided they are not otherwise prohibited from marrying; protects clergy from having to perform any particular marriage ceremony in violation of their religious beliefs; affirms that each religious faith has exclusive control over its own theological doctrine regarding who may marry within that faith; and provides that religious organizations and certain related entities are not required to provide goods, services, or benefits to an individual related to the celebration or promotion of marriage in violation of their religious beliefs."
Like the law in Maine, the Maryland law allows same-sex marriage and provides that clergy do not have to perform any marriage ceremony in violation of their religious beliefs.
The new law goes into effect on January 1, 2013.
In Minnesota, voters determined whether or not to approve a constitutional amendment that would limit marriage to a man and a woman, which would effectively ban same-sex marriage. With 51% of the vote, voters rejected the measure, thus preventing the amendment to the constitution.
The initiative read: "Shall the Minnesota Constitution be amended to provide that only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota?"
However, Minnesota does still have a law on the books that prevents same-sex marriage. In fact, one of the seminal cases on the constitutionality of same-sex marriage comes from Minnesota.
In Baker v. Nelson, 191 N.W.3d 185 (1971) the Minnesota Supreme Court held that Minnesota statute c. 517, which prohibits marriage of persons of the same sex, does not offend the 1st, 8th, 9th, or 14th amendments of the United States Constitution. The U.S. Supreme Court issued a summary dismissal of the appeal of that case, stating "[t]he appeal is dismissed for want of a substantial federal question." 409 U.S.810 (1972).
In 1977, Minnesota amended the statute at issue in the Baker case adding the words "between a man and a woman."
Interestingly, in the recent case of Windsor v. Unites States , where the 2nd Circuit struck down the provision of the Defense of Marriage Act defining marriage as between a man and a woman, the 2nd Circuit found the Baker case inapplicable to the determination of whether the DOMA provision was unconstitutional. "The question whether the federal government may constitutionally define marriage as it does in Section 3 of DOMA is sufficiently distinct from the question in Baker: whether same-sex marriage may be constitutionally restricted by the states."
Thus, although Minnesota still does not allow same-sex marriage, the vote on the amendment may be an indication of where Minnesota is headed.
In the case of Washington, the legislature passed a law, SB 6239, legalizing same-sex marriage in 2012. Referendum 74 was placed on the ballot for voters to determine whether or not the law should stand.
As of the date of this publication, Referendum 74 appeared to be passing, though the final vote was not yet official. The text of the ballot measure states:
"The legislature passed Engrossed Substitute Senate Bill 6239 concerning marriage for same-sex couples, modified domestic-partnership law, and religious freedom, and voters have filed a sufficient referendum petition on this bill.
This bill would allow same-sex couples to marry, preserve domestic partnerships only for seniors, and preserve the right of clergy or religious organizations to refuse to perform, recognize, or accommodate any marriage ceremony.
Should this bill be: Approved (OR) Rejected"
SB 6239 provides for not only for the legalization of marriage and preserves the right of clergy to refuse to perform marriages, but it also has a provision that converts domestic partnerships into marriage. If the partnership is state registered, the parties are the same sex, neither party is sixty-two years of age or older, and the partnership has not been dissolved or converted into marriage by the parties by June 30, 2014, it will automatically be merged into a marriage and deemed a marriage as of June 30, 2014.
If the measure passes, the law will go into effect on December 6, 2012.
As previously mentioned, practitioners in a variety of areas of law need to be aware of the ever changing law in this area: as it relates to equal rights, taxes, health insurance, hospital visits, housing discrimination, adoption and parenting, employment, family law and immigration.
The Human Rights Campaign has state by state maps that indicate the laws and policies of each state as it relates to each of these topics. The National Conference of State Legislatures also provides a state by state map showing the status of same-sex marriage in each state.
Importantly, however, although these states now recognize same-sex marriage, the Defense of Marriage Act still applies to federal rights. Section 3 of DOMA defines marriage as only between a man and a woman. Therefore, federal rights such as benefits for federal employees, social security survivor benefits, and the federal marital tax deduction, to name just a few, are still not available to same-sex couples.
The DOMA provision was struck down by the 1st Circuit in Gill v. U.S. Office of Personnel Management and by the 2nd Circuit in Windsor v. United States. Both have been appealed to the U.S. Supreme Court.
Will the Supreme Court Weigh In?
For most commentators, it is a question of how soon, not if, the U.S. Supreme Court will enter the fray on this issue.
There are several petitions currently before the U.S. Supreme Court, including the California Prop.8 case Hollingsworth v. Perry, Gill v. Office of Personnel Management out of the 1st Circuit, Windsor v. United States out of the 2nd Circuit, and Golinski v. U.S. Office of Personnel Management from the 9th Circuit. It remains to be seen, which case the U.S. Supreme Court will take up for review.
Given the discussion in those cases, and particularly Windsor's interpretation of Baker v. Nelson, the U.S. Supreme Court may very well only take up the federal law issue of DOMA and leave it to the states to decide how to regulate marriage for themselves.
Anne O'Donnell is a recovering litigator who is now currently a Senior Writer for legal professional content at Findlaw.com. She practiced for 10 years in civil litigation in San Francisco.