SameSex Marriage in the Marriage Equality States

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certificate immediately, and the nonbiological or “second” parent has
equal rights with the biological parent. However, the federal government
may not recognize the second parent with regard to Social Security,
COBRA coverage, or other federal purposes, so it’s still important that the
second parent use a legal adoption procedure to ensure that the parent-child
relationship is protected. There’s more about parentage in Chapter 5.
Use a court procedure to change your name. Although all states allow
married people to change their names upon marriage without a court
proceeding, there is still discrimination against same-sex couples when it
comes to name changes. If you want to be sure that your name change is
legal, use a court procedure.
Same-Sex Marriage in the Marriage Equality States
Marriage equality came first to Massachusetts when the Massachusetts
Supreme Court ruled in November 2003 that the state’s ban on same-sex
marriage violated the state constitution. The ruling took effect on May
27, 2004. In the five and a half years that the law has been in effect, more
than 16,000 same-sex couples have married. In the last four years, full
marriage equality has been extended to same-sex couples in Vermont, New
Hampshire, New York, Connecticut, Iowa, and the District of Columbia—
quite a dramatic change in the landscape. In addition, both Washington
State and Maryland have passed marriage equality laws that will take
effect in late 2012 and early 2013, respectively, unless voter referendums
interfere. While the specifics for each state are slightly different, the general
requirements and procedures for marriage are fairly standard.
Requirements for a Marriage License
To get a marriage license in any marriage-equality state, you must be 18
or older, not married to anyone else, not related by blood to your intended
spouse, and in a few remaining states, have taken a blood test showing
that you do not have communicable syphilis. When Massachusetts first
allowed same-sex marriage, you had to be a Masschusetts resident unless
you lived in a state that would recognize your Massachusetts marriage—
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but this is no longer the rule. None of the other states have residency
requirements either (nor does Canada, which legalized same-sex marriage
some years ago). But don’t forget that in each of these states, there is a
residency requirement to divorce—see below.
Rights and Responsibilities
Once married, same-sex couples who live in a marriage-equality state
have all the rights and responsibilities granted to all married couples in
the state. But the federal government continues to refuse to acknowledge
same-sex marriages, so the federal benefits of marriage are still unavailable.
If you don’t live in a marriage-equality state and you travel to get married,
then depending on the precise law of your home state, your marriage
may or may not be recognized. Your marriage is still valid, in the sense
that you will be treated as married in any marriage-equality state, but it
probably won’t be recognized in the state where you live.
The ramifications to the emergence of full marriage equality in a
handful of states are enormous, and will continue to affect couples
nationally for many years. Undoubtedly, some couples will marry in
their marriage-equality home state, then move for business or personal
reasons and attempt to enforce their marriage in their new home state.
This raises the constitutional issues called “comity” and “full faith and
credit.” The United States Constitution generally says that marriages in
one state must be recognized by all other states. But in some instances,
states are granted the right to disregard a marriage of another state
based on so-called “public policy” concerns. And the federal Defense
of Marriage Act (DOMA) says that same-sex marriages in one state do
not have to be recognized in other states, or by federal agencies. Many
states have passed their own DOMAs banning recognition of samesex marriages from out of state, and a depressing number of states have
passed constitutional amendments prohibiting the state from recognizing
same-sex relationships of any kind from other states.
Thus, unless you are living in a full marriage-equality or marriageequivalent state that explicitly recognizes same-sex marriages, it may be
years before your legal status is recognized where you actually live, and
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you may encounter a patchwork of uneven responses. In other words, one
employer or state agency may treat you as married, while another views
you as two single unrelated adults. As unfair as this disparate treatment
is, it is going to be our reality during this time of legal transition and
social evolution.
Ending a Legal Marriage
Another important issue is how couples married in a marriage-equality
state can end their relationships if they no longer live in that state (or ever
lived there), or in another marriage-equality state. The only way to end a
marriage is through divorce, and because some states will not recognize a
same-sex marriage, it may be difficult to get courts in those states to grant
a divorce. (Texas and Oklahoma have refused to entertain divorce cases
for same-sex couples. In Texas, the two men appealed and eventually were
allowed to get their divorce, but in Oklahoma the decision stands, so far.)
You may think you can just return or move to a marriage-equality
state to get a divorce, but it’s not that simple. Most states have a residency
requirement for divorce, meaning that before you can even file for divorce
you must have lived in the state for a certain period of time, usually six
months to a year. (A few states have no residency requirements to start a
divorce action, but they have special rules that you should consult before
filing.) And once you file for a court divorce, it typically takes at least six
months, and probably longer, for a divorce to become final.
And it’s not just a question of having access to the court for a divorce.
There is often the bigger quandary of whether you are treated as married
when it comes to issues of parentage, money, and assets. In a divorce
process, it may be in the financial or personal interest of one spouse to have
the marriage go unrecognized, so they can avoid sharing assets or parentage
with their now-despised partner. It’s an unfortunate truth that some samesex partners will ask courts not to recognize the marriage for that reason.
There are really no certain answers to these questions as yet—but see
below for ways that you can keep up to date on what is happening in this
quickly changing area of the law—and manage your personal lives in the
meantime.
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Relationship Recognition in the Workplace
Marriage raises a whole set of issues for employment-related issues. Most
pension and retirement benefits are governed by federal law, but employers
sometimes have to look to state rules about benefits. Employers in marriageequality states must offer nonfederal benefits for all married couples,
whether they are of the same or opposite sex.
The conflict between state marriage laws and the federal Defense of
Marriage Act has already led to litigation, and it’s likely some employers’
refusal to provide marital benefits to same-sex spouses will lead to more.
Among other cases, a federal court in California recently ruled that the
federal government had to provide spousal benefits to the wife of a female
court employee after the couple married in 2008. The office of Personnel
Management refused to comply with the order, and both sides filed new
arguments in 2011 challenging the constitutionality of the DOMA itself. The
case will be decided in 2012, but more litigation on this issue is likely.
Employee benefits can be complex, and there’s no way for us to cover all
the workplace issues that might arise. If your employer won’t recognize your
relationship, contact a local attorney, the National Center for Lesbian Rights
at www.nclrights.org, the Human Rights Campaign at www.hrc.org, or Gay &
Lesbian Advocates & Defenders, at www.glad.org.
Caution
Don’t be a bigamist. If you are married or have registered for a
marriage-equivalent civil union or domestic partnership, check with a lawyer
before trying to get married again anywhere else—to the same person or to
someone else. If you have a marriage certificate, you are legally married and any
marriage you enter into later will probably be considered invalid. If you have a
marriage-equivalent civil union or domestic partnership, you have a legal status
that is equivalent to marriage and you may also be guilty of bigamy if you marry
someone else while the other legal relationship is still intact. It’s unclear what
the legal consequences might be of marrying the same person with whom you
have the previous marriage, domestic partnership, or civil union. At best, it won’t
matter. At worst, you could find yourself in a complicated fight if you and your