Can You Get Married

chapter 1  | Defining Family |  23
Can You Get Married?
The United States Supreme Court has declared marriage to be “of
fundamental importance to all individuals,” “one of the ‘basic civil
rights,’” and “the most important relation in life.” The court also noted
that “the right to marry is part of the fundamental ‘right to privacy’”
contained in the U.S. Constitution. (Zablocki v. Redhail, 434 U.S. 374,
98 S.Ct. 673 (1978).) All of this elegant language notwithstanding, the
fundamental right described by our nation’s highest court is still denied
to same-sex couples in the great majority of the 50 United States.
The Fight for Same-Sex Marriage in the United States
If you just want to know the details about same-sex marriage currently,
turn to Chapter 2. If you want the historical details, read on.
In 1971, two Minnesota men sued, claiming that they were entitled to
marry under the state’s marriage statute. That case was unsuccessful, but
in the last 14 years several other important cases, especially in Hawaii,
Vermont, and Massachusetts, have changed the legal landscape for samesex couples that want to marry.
In Baehr v. Miike, 80 Hawai’i 341, 910 P.2d 112 (1996), three samesex couples sued the state of Hawaii, arguing that its failure to issue them
marriage licenses violated the Equal Rights Amendment to the state
constitution. A trial judge ruled that the state’s same-sex marriage ban
was invalid, but while an appeal was pending, Hawaii voters passed a
constitutional amendment banning same-sex marriage. The legislature,
however, to avoid granting full marriage rights, provided for a new class
of partners called “reciprocal beneficiaries,” which is discussed in Chapter
2. This new law effectively ended the case.
Although not quite the victory that the same-sex marriage movement
had hoped for, it was still groundbreaking at the time because it was
the first statewide domestic partnership law passed in the United States.
Worried legislatures in other states passed laws banning same-sex
marriage, called “defense of marriage acts,” or “DOMAs”. The federal
government joined the fight against same-sex marriage, passing a federal
24  |  A Legal guide for Lesbian and Gay Couples
Same-Sex Marriage (and Legal Partnership) Around the Globe
Americans aren’t the only ones wrestling with the issue of legal rights for
same-sex couples. In addition to Canada, same-sex couples can marry in
Argentina, Belgium, Iceland, Mexico City, the Netherlands, Norway, Portugal,
Spain, Sweden, and South Africa. There are strict residency requirements,
however, so American travelers cannot marry in those countries while
on vacation. Many other countries around the world are also moving to
recognize same-sex relationships:
Andorra. Same-sex couples can enter into registered partnerships that carry
a few of the rights of marriage. No adoption or other parenting rights are
granted.
Australia. As of 2008, Australia offers same-sex couples the same rights
as unmarried heterosexual couples who can prove they are in a de facto
relationship; these couples have most of the rights of married couples.
Austria. Same-sex couples can enter into registered partnerships that carry
a few of the rights of marriage. No adoption or other parenting rights are
granted.
Colombia. Registered same-sex couples have the same pension, social
security and property rights as registered heterosexual couples.
Croatia: Same-sex couples can enter into registered partnerships that carry
a few of the rights of marriage. No adoption or other parenting rights are
granted.
Czech Republic. Same-sex partners can enter into civil partnerships that
carry many of the rights of marriage.
Denmark. Denmark was the first country, in 1989, to allow same-sex couples
to form “registered partnerships,” giving them a status and benefits similar
to marriage. The Danish law extends to Greenland, which is a territory of
Denmark.
Ecuador. Same-sex civil union partners have most of the same rights as
heterosexual married couples and opposite-sex civil union partners, with the
exception of adoption rights.
Finland. In 2001, Finland passed a same-sex partnership law similar to
Denmark’s; same-sex partners cannot adopt children, however.
chapter 1  | Defining Family |  25
Same-Sex Marriage (and Legal Partnership)
Around the Globe (cont’d)
France. Registered partnerships (called Civil Solidarity Pacts or PACs) are
available and include tax benefits, public insurance and pension benefits,
inheritance and lease protections, and even the right to demand employers
offer them concurrent vacation schedules.
Germany. Gay and lesbian couples may register same-sex partnerships.
Registered partners have the same inheritance rights as married couples,
and may adopt the same last name, but they do not have the same tax
advantages and rights to adopt that married couples have.
Hungary. Same-sex couples finally won the right to register as partners in
2009, giving them most marital rights.
Ireland. Same-sex civil partnerships are legal in Northern Ireland only.
Italy. Pisa and Florence allow same-sex couples to register as domestic partners, but there is no countrywide recognition of domestic partnerships.
Luxembourg. Same-sex partners may register for some of the rights of marriage.
Mexico. Beginning in 2007, residents in two of Mexico’s districts are able to
enter into same-sex civil unions.
New Zealand. Registered partners are recognized nationwide.
Norway. Registered partnerships similar to those in Denmark are available
to same-sex couples.
Slovenia. Provides cohabitating same-sex couples the right of inheritance
and some other rights.
Spain. The Spanish Parliament voted to legalize same-sex marriage in 2005.
Sweden. As of 2009, registered same-sex partners have the same rights as
married couples.
Switzerland. Registered partnership for same-sex couples grants limited rights.
United Kingdom. Couples in the UK can register as civil partners and be
subject to just about all the rights and duties of marriage.
Uruguay. A 2008 law provides certain rights to partners of any sex who
cohabit for longer than five years; if the partners register, they can establish
community property.
26  |  A Legal guide for Lesbian and Gay Couples
DOMA in 1996. The federal law prohibits the federal government from
recognizing same-sex marriages and denies federal benefits (such as joint
income tax filing, immigration, and Social Security) to spouses in samesex marriages (should any exist).
Furthermore, in anticipation of a time when some forward-thinking
state might allow full legal marriage for a same-sex couple, the federal
DOMA permits states to ignore a same-sex marriage entered into in
another state. This provision has become much more relevant now that a
number of states allow same-sex marriage.
Soon after the Baehr decision in Hawaii, across the country, the
Vermont Supreme Court ruled that prohibiting same-sex marriage
violated the provision of the Vermont constitution guaranteeing equal
rights to all citizens, because it denied same-sex couples the rights to
which straight couples were entitled. (Baker v. State, 170 Vt. 194, 744
A.2d 864 (1999).) But instead of ordering the government to issue
marriage licenses to gay and lesbian couples, the court left it up to the
state legislature to remedy the situation. In response, the legislature passed
a law creating the civil union registration system. Under this system, until
2009, same-sex couples could only enter into a civil union ceremony and
were then subject to all state laws applying to married couples.
Then in 2003, the Massachusetts Supreme Court ruled that the state’s
DOMA law violated the Massachusetts constitution. (Goodrige v. Dept.
of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2003).) In Goodridge,
again the plaintiffs were same-sex couples who had been denied marriage
licenses. Since then, courts and legislatures in five other states and
the District of Columbia have opened the marriage doors to same-sex
couples. However, DOMA continues to keep the federal doors closed.
There’s more about that in later chapters.
Same-Sex Marriage in Canada and Around the World
Same-sex couples can legally marry throughout Canada. There are no
residency requirements, so American citizens can also travel to Canada
to get married. There are no medical tests, either—you need only get a