OLR Research Report


October 9, 2002 2002-R-0841

LEGAL RECOGNITION OF SAME-SEX PARTNERSHIPS

This Backgrounder briefly covers the following: (1) governmental recognition of marriages involving same-sex partners, (2) federal and state laws defining marriage as the union of one man and one woman, (3) states and countries with same-sex union laws that parallel their marriage laws, and (4) states and countries affording registered partners some of the same rights and benefits as married couples. We have included a list of further reading with hyperlinks to documents that are available online; OLR can provide copies to legislators and staff on request.

CIVIL MARRIAGE

Civil marriage refers to the licensing or legal recognition of a union as a marriage by government authorities. In Canada and some other countries, the standards are set at the national level and enforced by local officials. In the United States, state legislatures and courts set most of the restrictions on who can marry and the procedures that must be followed.

Currently, no country but the Netherlands allows same-sex partners to marry. But same-sex couples in Canada and the United States are currently mounting legal challenges to existing marriage statutes, claiming that they unconstitutionally exclude gay and lesbian partners.

The Netherlands

The Dutch Parliament is the only legislative body that has authorized same-sex couples to marry. The law, which went into effect April 1, 2001, requires at least one member to be a Dutch citizen or national. The Dutch Ministry of Economic Affairs reports that 3,383 of the 121,776 marriages licensed between April 1, 2001 and June 30, 2002 involved people of the same sex.

Canada

A 1999 Canadian Supreme Court ruling (M v. H) declared that the "Equality Rights" Clause of the Canadian Charter of Rights and Freedoms (Canada's equivalent to our constitution) entitles same-sex couples to the same benefits and obligations as opposite-sex couples in longterm relationships the government recognizes as "common law" marriages. Building on that decision, two lower provincial courts, one in Toronto and one in Quebec, ruled this summer that the Equality Rights Clause requires town clerks to issue marriage licenses to same-sex couples who married in a church that performs such ceremonies for same-sex couples. But a third court, in British Columbia, ruled that the government can constitutionally restrict marriage licensing to opposite-sex couples.

All three cases have been appealed, and experts predict that Canada's Supreme Court will consolidate them into a single case and issue a decision within two or three years. (See below for national and provincial legislative responses to M v. H).

Meanwhile, the Canadian minister of justice plans to get input on what Canada's national policy should be by holding public hearings this fall. (Last year, Canada's non-partisan Law Commission concluded a two-year study of close adult relationships. One of its recommendations was that national and local governments begin removing from their laws restrictions on marriages between people of the same sex. )

United States

No state has ever licensed marriages between people of the same sex. The highest courts in Minnesota, Kentucky, and Washington rejected constitutional challenges to marriage laws in cases brought by same-sex partners in the 1970's. Amendments to the Alaska and Hawaii constitutions (see below) essentially overruled recent court rulings in those states finding that same-sex couples have a constitutional right to marry. And a 1999 Vermont Supreme Court ruling prohibiting the state from denying same-sex couples the statutory benefits and protections that opposite-sex couples receive when they marry left it to Vermont's legislature to make the first attempt at crafting the remedy. (The legislature ultimately enacted the civil union legislation described below. )

Currently, same-sex couples are asserting their constitutional right to marry in lawsuits in Indiana, Massachusetts, and New Jersey.

U. S. and State Laws Defining Marriage. In 1996, Congress passed the Defense of Marriage Act (DOMA, P. L. 104-199). That law limits marriage, for federal program purposes, to unions of one man and one woman. It provides that a state cannot be forced to recognize another state or country's statutory or judge-made laws extending marriage to same-sex couples.

Between 1996 and 2000, 36 states passed laws generally modeled on the federal DOMA. Three also amended their constitutions to limit marriage to unions between two people of the opposite sex.

LAWS MANDATING EQUAL TREATMENT FOR SAME-SEX PARTNERS

Canada

Canada's Parliament responded to the M v. H ruling in 2000, passing the Modernization of Benefits and Obligations Act. That law gave same-sex partners the same social and tax benefits as different sex couples in common law relationships. It left intact the existing definition of marriage as a "union of a man and a woman to the exclusion of all others", but expanded the definition of "common law relationship" to include same-sex partners.

Provincial legislatures in New Brunswick, Nova Scotia, Ontario, and Quebec have amended their civil codes, mandating equal treatment for same-sex partners.

U. S-Vermont

A 1999 Vermont Supreme Court ruling interpreted the state's constitution as requiring the state to give same-sex couples rights and benefits equal to those afforded to married couples (Baker v. State). Following Judiciary Committee hearings, the legislature responded with a comprehensive civil union law. The law allows unrelated same-sex adults to obtain civil union licenses from town clerks, entitling them to the legal rights, responsibilities, and protections provided under state law to different-sex couples through marriage.

As of August 30, 2002, Vermont town clerks had issued 4,058 civil union licenses (721 to Vermont residents and 3,337 to residents of other states and countries).

DOMESTIC PARTNERSHIPS

European Recognition of Registered Domestic Partnerships

In 1989, Denmark became the first European nation to enact a law on registered partnerships. Since that time, similar laws have been passed in Norway (1993), Sweden (1995), Iceland (1996), Greenland (1996), and the Netherlands (1998). According to the University of Turin's Stefano Fabini, an advocate for gay, lesbian, and transgendered rights who recently organized an international conference on this topic, the laws in these countries are generally similar to Vermont and Canadian civil union laws, except most do not permit domestic partners to adopt children. By treaty, each country has agreed to recognize the validity of partnerships registered in the other nations.

Less comprehensive partnership laws have been passed in France (1999), Belgium (2000), Switzerland (2000), and Germany (2001). Germany's federal constitutional court upheld a challenge to its law on July 17, 2002.

California's Domestic Partner Registry

California is the only state with a state-wide domestic partner registry. Created in October 1999, registration originally conferred rights to hospital visitation and domestic partner benefits for state employees. On January 1, 2002, these rights were expanded to include access to stepparent adoption procedures; decision-making rights in health care and medical emergencies; additional rights to unemployment, sick leave, health insurance, and certain death benefits; the right to sue for wrongful death of a partner; and a state income tax exemption for employer-provided health insurance benefits. These rights were expanded further in September 2002, enabling registered domestic partners to inherit their partner's property when that person dies without a will.

The secretary of state maintains the registry, which currently includes about 13,000 domestic partnerships. Both same-sex couples and most opposite-sex couples with a partner over age 62 can register.

OTHER U. S. STATE LAWS

Reciprocal Beneficiaries

Although constitutionally banning same-sex marriages, Hawaii recognizes "reciprocal beneficiary" relationships. Single adults who are legally prohibited from marrying (i. e. , close relatives and same-sex couples) can register and qualify for hospital visitation privileges, authority to sue for wrongful death and loss of consortium, family and bereavement leave, and treatment as spouses under some state inheritance laws.

(Vermont also recognizes reciprocal beneficiary relationships, but limits them to adult relatives who cannot marry. )

Designated Representatives

A new Connecticut law (PA 02-105) requires people to honor documents executed by one adult designating another adult to make certain decisions on the maker's behalf or giving the designee rights or responsibilities. It applies in limited circumstances in health care and employment settings and to crime victims and transfers of motor vehicle ownership.

State Employee Benefits for Domestic Partners

State employees can enroll their domestic partners in employee benefit plans in California, Connecticut, the District of Columbia, Maine, New York, Oregon, Rhode Island, Vermont, and Washington. This benefit is limited to same-sex partners in California, Connecticut, and the District of Columbia.

FURTHER READING

OLR Reports

OLR Backgrounders on Related Topics

Civil Marriage

Parallel Statutory Schemes for Same-Sex Partners

European Domestic Partnership Laws

U. S. State Domestic Registry Laws

This Backgrounder was prepared by Susan Price-Livingston, OLR Associate Attorney.