Same Sex Marriage

Same sex marriage is a highly topical and much-debated issue in the United States. At the time of writing, only two states allow same sex marriage: Massachusetts and Connecticut. There is a guarantee of equality for all under the United States Constitution, although many argue that in terms of marriage this is not the case. This formed the crux of the matter with the recent California Proposition 8, which is still very much a live issue.

At the time of this writing California still allows same sex couples to register as domestic partners: a similar type of recognition to the civil unions of other states. Given the prevalence of debates surrounding this issue, it is very likely that there will be further changes in relation to the law surrounding same sex marriages in the future.

It has been legal for same sex couples to marry in Massachusetts since May 2004. The Massachusetts Supreme Judicial court concluded that civil unions actually create a new class for participants, which is why they ruled that marriage is marriage – regardless of whether it is heterosexual or same sex. In Connecticut, although same sex civil unions have been allowed since October 2005 in which couples are declared ‘partners for life', as of November 12, 2008 same sex marriages are now also permitted.


Even though these states now allow same sex marriages, the Federal Defense of Marriage Act (DOMA) of 1996 prevents them from being recognized under federal law. This does not, however, mean that the states that allow same sex marriage are acting in conflict with DOMA, as the Act does not actually stop any state from allowing such marriages to take place. Rather, it provides each state with the power to refuse to recognize same sex marriages that have taken place in other states.

Aside from Connecticut, civil unions also exist in Vermont and New Jersey.

So what's the difference between a civil union and marriage? Broadly, marriage is a legal status that creates both rights and obligations for the couple involved. Civil unions provide some, but not all, of the rights conferred on heterosexual married couples. However because civil unions are recognized on a state level and not a national level they offer much less protection and recognition for the couple than a marriage.

Domestic Partnerships

Same sex domestic partnerships are permitted in a number of states: California, Hawaii, Washington, Oregon and Maine, and the District of Columbia. Each offer varying levels of rights and benefits for example, in Oregon, same sex domestic partners have exactly the same rights as heterosexual married couples in the state, whereas other states may only offer limited rights such as hospital visitation, the right to sue for wrongful death, healthcare benefits and inheritance rights.

Do you have questions about a marriage, civil union or domestic partnership? Or are you considering a prenuptial agreement beforehand? Contact an attorney for advice.

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