Does any state recognize marriages between same-sex couples?

At present, no state recognizes marriage between people of the same sex. A few states expressly prohibit same-sex marriages. 8 Every state, however, has marriage laws that define what requirements must be met before two people may obtain a marriage license. Such requirements usually specify that the applicants must be of a certain age, not closely related by blood, single, and free from certain types of venereal disease. Some state statutes specifically require that applicants be members of the opposite sex;9 others contain language referring to "husband and wife" or "man and woman." 10 Even where the language of the state's marriage laws is not sex-specific, however, courts and state officials have interpreted those laws as embodying a definition of marriage that requires a relationship between a man and a woman.11

What are the consequences of the states' refusal to recognize gay marriages?

When a state refuses to recognize a marriage, neither partner is entitledin the absence of an enforceable contract between the partnersto the financial support of the other, and the couple may be deprived of other legal benefits that are conditioned upon marriage. These benefits are described more fully below. Perhaps as important, the refusal to recognize relationships between same-sex partners further entrenches societal treatment of all lesbians and gay men as second-class citizens.

What are the risks of obtaining a marriage license from the state without the state being aware that you intend to enter a same-sex marriage?

You may be accused of fraud, although there are no reported cases. In addition, the attempt may be used as a basis for discharge from the military.12

What is the significance of a religious ceremony purporting to join together two people of the same sex?

Since no state has yet recognized as valid a marriage between members of the same sex, such ceremonies have no legal significance. In fact they are usually not described as "marriage ceremonies" but as ceremonies of "holy union." Whatever their significance to the participants, holy unions do not entitle anyone to the legal benefits of marriage.

Is it unlawful to perform or to participate in such a ceremony?

Some states have laws forbidding any attempt to join in marriage persons who have not obtained a license or who otherwise fail to meet the state's legal requirements.13 However, there have been no reported cases of prosecutions brought against persons performing or participating in same-sex holy unions. Where such ceremonies are purely religious in natureand do not pretend to convey any legal marital status on the participants, any attempt to bring such a prosecution would be subject to a challenge as a violation of the right to religious free exercise.

Is the fact that states do not recognize such religious ceremonies a violation of the freedom of religion?

No couple has yet sought to obtain legal recognition of a holy union under the doctrine of religious liberty, but it seems unlikely that such a challenge would succeed, given the present legal climate. The United States Supreme Court has held that a state may outlaw polygamous marriages as contrary to public policy, even when the participants in such marriages are acting in response to their religious convictions. 14 This principle has since been extended to other religious rites that are prohibited by law because they offend large segments of the American population.15

What are the legal arguments that can be used to challenge a state's refusal to sanction gay marriages?

The constitutional arguments most commonly used are that the refusal is a violation of the First-Amendment right of freedom of association, an abridgment of the constitutional right to privacy, and a denial of the constitutional guarantee of equal protection of the laws.16

The First Amendment generally protects the rights of individuals to associate with one another, but the right to marry or to engage in sexual relations has not yet been recognized by the Supreme Court to be protected specifically by the First Amendment.17

The Supreme Court has recognized a zone of individual privacy, constitutionally protected against unwarranted governmental intrusion in highly personal decisions relating to marriage and sexuality. Matters so intimate as decisions whether or not to use contraceptives18 or to have an abortion19 have been held to be protected. Similarly, the decision of two people to marry and to choose with whom they wish to have consensual sex and an intimate relationship has been held to be protected against needless government interference.20 However, in light of the Supreme Court's refusal to extend the constitutional right of privacy to include consensual sodomy between two adult gay men, it is unlikely that the federal courts would find that the right to privacy protects the right of lesbian and gay couples to marry. 21

The most viable argument against the same-sex marriage ban is based upon the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court has overturned laws prohibiting interracial marriages on the ground that the right to marry is a fundamental right and that one's choice of partners may not be restricted based on constitutionally impermissible racial classifications.22 The same reasoning should apply to prohibitions against same-sex marriages which restrict one's choice of marriage partners on the basis of gender.

Have the courts ever upheld the rights of same-sex couples to obtain marriage licenses?

No. Lesbian and gay couples in several states have unsuccessfully challenged the denial of marriage licenses in state courts.23 In each case, the court held that the couple did not have a right to obtain a license because the drafters of the applicable legislation contemplated heterosexual marriages only. The United States Supreme Court has not explicitly ruled on this question.

Do other countries recognize same-sex marriages?

Same-sex marriages, or their legal equivalents, are recognized by some foreign countries. Denmark, for example, recognizes "registered partnerships," civil ceremonies that confer upon same-sex couples most of the rights of married heterosexuals, except for the right to adopt or obtain joint custody of children. Sweden and the Netherlands provide similar recognition to same-sex unions.24

There are no known cases in which a lesbian or gay couple has attempted to obtain legal recognition in this country of a foreign same-sex marriage. While it is consequently difficult to predict with assurance whether an American court would recognize such a marriage, it appears unlikely that one would do so.25

Has any other kind of legal recognition been given to lesbian and gay relationships?

Yes. On the judicial front, the greatest progress has been in the interpretation of laws extending certain benefits to families. In its groundbreaking opinion in Braschi v. Stahl Associates Co., 26 the New York Court of Appeals held that a gay man, who had been living with his lover in a rent-controlled apartment for eleven years before his lover died, was protected under a New York City rent and eviction regulation, which provided that upon the death of a rent control tenant, the landlord could not evict either the surviving spouse or any other member of the deceased tenant's family who had been living with the tenant. The court held:

We conclude that the term family should not be rigidly restricted to those people who have formalized their relationship by obtaining, for instance, a marriage certificate or an adoption order. The intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life. In the context of eviction, a more realistic, and certainly equally valid, view of a family includes two adult lifetime partners whose relationship is long-term and characterized by an emotional and financial commitment and interdependence.27

The court went on to enumerate the factors that should be considered in determining whether a family relationship exists.

In making this assessment, the lower courts of this State have looked to a number of factors, including the exclusivity and longevity of the relationship, the level of emotional and financial commitment, the manner in which the parties have conducted their everyday lives and held themselves out to society, and the reliance placed upon one another for daily family services. These factors are most helpful, although it should be emphasized that the presence or absence of one or more of them is not dispositive since it is the totality of the relationship as evidenced by the dedication, caring and self-sacrifice of the parties which should, in the final analysis, control.28

A New York trial court, relying on the language of Braschi, recently upheld the right of the Gay Teachers Association and three same-sex couples to sue the New York City school board for denying domestic partners of unmarried teachers the samehealth insurance coverage for spouses and other fringe benefits accorded married employees. In one of the first judicial opinions to recognize a legal cause of action for domestic partnership benefits, the court acknowledged the longstanding relationships between each of the individual couples who filed the suit and held that ''if, in deciding these motions, this court adhered to the traditional view of legally married, I would be rejecting the reality of family life in this day and age." 29

In a much earlier case, the California Workers' Compensation Appeals Board found that a gay man was entitled to benefits after the job-related suicide of his lover.30 Benefits had previously been denied on the ground that because the man's relationship with his lover was "illicit," he could not have been a "good faith member of the decedent's household" as required to receive death benefits. After nearly seven years of litigation, in which the board's originally adverse decision was appealed to the California Court of Appeals,31 the board found that "the inability to enter a recognized marriage should not control the issue of good faith member of a household" and awarded the benefits.32

On other fronts, a number of municipalitiesincluding San Francisco, Los Angeles, West Hollywood, Berkeley, Santa Cruz, and Laguna Beach, California; Seattle, Washington; Minneapolis, Minnesota; Madison, Wisconsin; Takoma Park, Maryland; and Ithaca and New York City, New Yorkhave adopted "domestic partnership" ordinances, executive orders, or municipal policies of varying scope.33 Other cities are considering similar ordinances, and two statesNew York and Illinois have domestic partnership legislation under consideration.34 Domestic partnership laws, whatever their vehicle, provide legal recognition for both heterosexual and homosexual unmarried cohabitors. In some instances, such as in San Francisco,35 domestic partnership ordinances provide legal recognition only, with no attendant public economic benefits. In other cases, domestic partnership laws may grant to registered partners some or all of the economic benefitstypically, sick and bereavement leave and insurance and survivorship benefits for city employeesthat are accorded by the municipality to married couples.

A novel approach to legal recognition of lesbian and gay families has been adopted in California, where the secretary of state has agreed to accept registration of "families" as unincorporated nonprofit associations under a portion of the California Corporations Code that is used by such groups as garden clubs, fraternities, and homeowners' associations. In return for a ten-dollar filing fee, a couple or an adult with children may register with the state as "Family of [Doe]" and receive a certificate with the state seal acknowledging the registration of the association. While the registration has no known tax or legal consequences and confers no economic benefits, backers of the registration system hope that the registration will provide a psychological benefit due to the formal acknowledgement of the family's status, as well as assist in documenting hospital visitation and medical emergency approval powers and in receiving bonuses and discounts offered by private entities to families. 36

Is adoption of one member of the couple by the other a viable alternative to same-sex marriage?

Most states at least theoretically allow the adoption of an adult, as long as the person to be adopted and his or her natural parents (if alive and known) grant their consent. However, as with children, a court must approve the adoption.

Some lesbian and gay couples have attempted to legitimize their family status and secure inheritance rights against possible challenges by relatives by having one member of the couple adopt the other. All of the reported cases dealing with this tactic have arisen in New York. After lower courts in earlier cases divided on the legitimacy of such adoptions, the New York Court of Appeals affirmed a trial court opinion denying the petition for an adult adoption between two gay men, one fifty-seven and the other fifty years old, who had lived together for twenty-five years.37 The court held that the use of adoption to establish a family relationship between gay sexual partners was "a cynical distortion of the adoption function,"38 the purpose of which was to create a filial relationship to which "sexual intimacy is utterly repugnant."39

Though this decision appeared to sound the death-knell for the use of adult adoptions between lesbian and gay partners, a more recent decision by a New York appellate court appears to breathe new life into the tactic. In East 53rd Street Associates v. Mann, the court held that an adoption of one elderly woman by another for the ostensible purpose of ensuring the right of the adopted party to succeed to a rent-controlled apartment was not necessarily fraudulent and that the court would not delve behind the face of an otherwise appropriate adult adoption petition to determine whether something other than a desire for a filial relationship or the establishment of property rights motivated the two women to file the adoption petition. 40

Even if most courts do eventually accept the legitimacy of adult adoptions between same-sex couples, the step of adopting another adult should be approached with great caution. The financial benefits of adoption are usually minimal. Many benefits generally available to parents apply only if the child is under eighteen or twenty-one, is disabled, or is actually economically dependent on the parent.41 One court has even indicated that a parent is not entitled to government benefits for an adopted child, regardless of age, if the adoption was made for the purpose of monetary gain.42

On the other hand, the disadvantages of adult adoption may be substantial. An adoption is forever; it creates a virtually indissoluble legal link between "parent" and "child." The party who is being adopted may be cut off from any right to inherit from his or her natural parents.43 Moreover, adoption may impose substantial financial liabilities on both parties. In some states, for example, an adopting parent is responsible for the financial support of the person adopted, at least under circumstances of extreme need; an adopted child may likewise be liable for the financial necessities of the parent.44 This is not an obligation that can be avoided if the relationship later sours. In addition, in some states, the parties may be guilty of incest if they engage in sexual relations with each other.45

In most cases, estate planning tools such as wills, trusts, powers of attorney, and life insurance, together with well-drafted "living together agreements," will prove a far better way to obtain the financial benefits of adult adoption, while avoiding its downside.