Updated January 14, 2010
Slowly, some states in the USA are offering various levels of same-sex recognition. In all cases, the federal government does not recognize these relationships, so even when a state offers recognition, the federal laws still treat these people are legal strangers. Currently, Massachusetts, Iowa, Connecticut, New Hampshire, and Vermont offer marriage equality and the ability for both same-sex and opposite-sex couples to marry and formalize their relationships within the state. It is expected that in early March, Washington DC, will also start allowing same-sex marriage (assuming the already-signed law passes through its waiting period without a succesful challenge by Congress). In April 2009, Vermont’s legislature passed full marriage equality overriding its governor’s veto – which gave Vermont the bragging rights as the first state to offer marriage as a result of the legislature and not as a result of a court order. Maine had passed a law in May 2009 for full equality, but during the standard 90-day waiting period before the law would have gone into effect, there was a voter initiative to hold a state-wide vote on the law; unfortunately, while the statewide vote was close, the voters in Maine opted to overturn the law, so Maine never did implement equality. However, New Hampshire did vote for full marriage equality in June 2009 and the governor signed the bill into law. Previously, in April 2009, Iowa’s supreme court ruled that its marriage ban was not constitutional and Iowa became the first state in the American heartland to offer equality – what a great beacon of fairness! Several states offer separate-but-supposedly-equal benefits such as civil unions or civil partnerships. These states include California, New Jersey, Oregon, and Washington state. There are some additional states that offer some – but not all – benefits of marriage. These limited-recognition states include Maine, Hawaii, and Washington DC. There are also 29 – twenty-nine! – states that explicitly ban same-sex marriage in their state constitutions. You can find more details on the Status of Same Sex Relationships by State page and on the HRC Map of State Laws. This is a fast-moving topic in the US at the moment, and the progress seems to be mostly towards more equality than less, but there is still a long way to go. As mentioned at the start, even when a state recognizes marriage, the federal government does not, so there are thousands of benefits and obligations gay couples do not receive. Below is some brief information around a few of these items, as well as some of the rights that are missing when there’s anything short of full equalty.
Washington state’s (home to Seattle) legislature passed a “everything-but-marriage” bill in 2009 to react to state constitutional amendment that bans marriage between same-sex couples. The legislature’s bill, which has been signed by the governor, is a civil partnership bill, would give couples all the state rights as married couple, except it would not be called marriage. Of course, the federal government still does not recognize same-sex couples at all, so the benefits only would apply in Washington State for state-controlled decisions.
On May 15, 2008, the California Supreme Court ruled that same-sex couples have the same right to marry as opposite-sex couples. When this went into effect on June 16, 2008, the state became the second state in the US to fully recognize civil marriage for all its citizens (Massachusetts was the first). However, there was a backlash against the court ruling, and the question on whether same-sex couples should be able to marry in California went to the people of the state for a vote in November, known as Proposition 8. Unfortunately, Prop 8 did pass (see my post on Shame, Shame, California), so the right to marry in California was paused, and the case was appealed to the California Supreme Court. On Tuesday, May 26, 2009, the court ruled that Prop 8 was a valid initiative, so there will be no more same-sex marriages in California; however, valid marriages already performed will continue to be valid in the state. In January 2010, a federal district court in California started hearing initial arguments against Prop 8’s validity. This is significant because if the federal courts – including the US Supreme Court – ultimately agree with the argument that banning marriage violates equal protection, all the bans on same-sex marriage could be overturned. Equally concerning, if the courts ultimately rule that states have the right to ban marriage, there is no appeal path, restricting progress to grass-route change of hearts, state by state and voter by voter. (You can read a detailed article on this court case here.)
California’s allow-then-take-away approach to marriage represents the first time voters have TAKEN AWAY the right of marriage from people. There’s a big difference between banning it and preventing marriage in the first place, from allowing marriage and then suddenly taking it away from people. There is an well-written article called Until Logic Did Them Apart that presents a case against the gay marriage critics.
A major concern that personally affects Troy and me was a similar Florida initiative to the California one. In Florida, it also sought (successfully) to change the Florida state constitution to ban recognition of same sex relationships. Florida already had a law that defined marriage as between one man and one woman. What the additional initiative did was actually CHANGE the state’s constitution to only recognize man/woman relationships. This was personal in the sense that Troy’s parents are in Florida, his sister and her family live there, and we visit periodically. We now have absolutely no reason to believe that if one of us needed medical care in Florida while visiting, that the other one of us – despite being legally married in Massachusetts and recognized as partners in the UK – would be able to speak for the other, visit in the hospital, or even be recognized as anyone other than a complete stranger. We are lucky in that both of our families accept our relationship and support us, but you can imagine the added drama if one person were to becoming critically ill there, and not only the laws conspired against you, but the family also wanted to deny you visitation right.
Various states in the US, and some countries like the UK, offer some version of Civil Partnerships instead of full marriage. There are many reasons why marriage – and only marriage – is the only appropriate recognition of my relationship. I’ll also touch on some federal laws in the US that still discriminate, basically ignoring the fact that some US states do offer full marriage to same-sex couples.
In the UK, the government allows same-sex couples to obtain a “civil partnership” in recognition of their relationship. Under UK law (the Civil Partnership Act of 2004) same-sex registered couples are to be treated equally to married couples in all aspects of employment, taxes, benefits and rights/responsibilities. Of course, this begs the question – well then, isn’t it just marriage? If you are a UK citizen living in the UK and don’t travel, this actually does a reasonable job of equating the benefits and responsibilities of marriage. However, in my type of situation – not a UK citizen, happen to be living here, and travel a lot – Civil Partnership is not equal to marriage by a long shot. This “separate but equal” attempt, while a reasonable first step, is ultimately a disappointment and insulting to me and Troy.
The very basic issue comes down to equality. If I am to be fully equal to others, don’t separate out what you call my relationship from theirs. If the intent is to give me equal rights, then make it so by calling it marriage. There are plenty of arguments in this space and mostly come down to the “separate is never equal” argument. More importantly for me is that “marriage” as a term is widely accepted and acknowledged. If a couple is married in one country and moves to another, their relationship status is unambiguous. They are married. If a couple marries in one state and travels to another, no one will question their status. If one is admitted to a hospital on a holiday trip, the authority of the other is acknowledged. They are married and the concept holds true world-wide.
Now try explaining the concept of Civil Partnership. Since this specifically applies only to the UK, recognition of the relationship is in question outside the boundaries of the UK. There are a host of issues, such as trying to map what a UK Civil Partnership equates to in other countries. For example, does Canada – who already recognizes full marriage for all members of their society – automatially treat someone in a UK Civil Partnership as “married”? It’s even more confusing in countries where there is no formal recognition either way. The status of the relationship, the ability of one person to act on behalf of the other, and the life-and-death decisions people sometimes have to make, are all up for question. Will there be any acknowledgement of the Civil Partnership? At least if this were full marriage, there is a logical argument that even if a country does not allow full equal marriage itself, MARRIAGE as a concept is well understood and therefore the relationship between the two people is clear, both socially and otherwise.
The complex nature of Civil Partnership instead of Marriage is illustrated by the UK’s own laws. There literally is a law that “maps” other country’s relationships into how the UK will recognize them. Married in Massachusetts? You’re recognized as being Civil Partners in the UK. In a Registered Partnership in the Czech Republic? Prove the relationship. But in a Domestic Partnership in New Jersey? That’s a Civil Partnership in the UK. It would be clearer if everyone just called it marriage and then no one is confused. The mapping between what is recognized as a UK Civil Partnership is kept up to date on the Civil Partnership Section 20 Mapping on Wikipedia (which is easier to read that the legal actual law published at Statutory Instrument 2005 Number 3135).
There are a few other items I want to explain, especially for people who don’t know a lot about the US legal system. The United States has two-tiers of government that typically affect marriage rights (more actually, but I’ll just focus on the big two). The overall US federal government has the “master” set of laws and those are the ones that must be followed nationwide, whether in California, Maine, Florida or Texas. Notably for the discussion around equal marriage for gays is that the federal government sets and controls the prevailing set of laws around federal taxation, the Internal Revenue Service (IRS), the Social Security Administration department (retirement, survivor benefits, etc) and what is considered a taxable event. In addition to the Federal laws, each state (there are 50 states that make up the US) has a set of state laws. These state laws typically would provide laws for issues of importance to the specific state. Some times, these are in addition to federal laws (supplement them), and other times, these are unrelated (ie there is no federal law at all on the particular topic). The federal government explicitly says that the institution of marriage is to be regulated by each individual state, so each state determines how it wants to regulate marriages. In most of the 50 states, same-sex marriage is currently not legal. In some states, it is explicitly forbidden; in other states, same-sex marriage is just not addressed at all – and is neither explicitly legal nor explicitly illegal. A few states, such as Massachusetts, have legalized equal marriage for same-sex couples and opposite-sex couples. Now it gets complicated.
The Federal government explicitly says that marriage is to be regulated by each state. The Federal government also says that federal agencies will only recognize marriage between one man and one woman. So, in the states like Massachusetts (and the few others that recognize full marriage equality), we literally have same-sex couples who are legally married in the state and yet are treated as complete strangers by the USA as a country. This becomes a major problem in many circumstances, but a few jump out in particular. One of the biggest ones is when one of the people die. Upon death, the Federal government’s laws kick in – for example, the IRS determines what part of the estate is taxable. With a marriage that the federal government recognizes, there is no problem – spousal privileges allow the living spouse to inherit the house without paying tax on it. Seems pretty reasonable to me. But since the federal government does not recognize same-sex marriage – even when it’s completely legal in some states – the surviving spouse is a legal stranger according to the IRS, so it’s the equivalent of one person leaving his house to a stranger – and the stranger has to pay taxes on the value of the house (or at least the portion that was willed to him). This causes many couples, especially elderly ones, to have to SELL their house just to pay the taxes. Yeah, that helps support a stable society and promotes family stability. There are over 1,000 federal laws that offer protection only to married couples – and not to civil partners, domestic unions or anything other than recognized marriages. For example, an opposite-sex couple where one person is a US citizen and one person is not, may apply for citizenship on the basis of being married. However, a valid marriage license of a same-sex couple does not entitle the application for US Citizenship – the federal government (which control immigration and naturalization) simply treats the same-sex couple like strangers; the identical marriage license for an opposite-sex couples does entitle application for citizenship on that basis.
To make this a little more personal, Troy and I have been together since 1998. In November 2008, we celebrated our 10 year anniversary. We’ve owned two home together in the US, have bought a small house in London, and intend to spend the rest of our lives together. We’re committed to each other, financially and emotionally support each other, and are each other’s best friends. We are active in the community and are a positive impact on society. And yet our relationship is not fully recognized in any sense as it would be if we were an opposite-sex couple. We got married in Massachusetts (Boston) in late October 2008. (By the way, if you’re thinking about getting married in Boston, see our page with Boston wedding logistic details in case it helps!). We’re hopeful to continue to see more US states begin to address this inequality like a few recently have. Of course, we really need the US federal government to recognize our relationship, too, because there are literally over a thousand laws that still discriminate against us, even when fully married.
It’s heartening to see people reach out to inquire about an aspect of this and try to better understand the topic. We will ultimately make progress as a society when open-minded people think through the topic and honestly and credibly do what they believe the right thing is. I’m confident that we will see equality in my lifetime – I just want it now! I appreciate the comments and questions people have posted below and will do my best to help you understand my perspective.
Resources online for more information:
- Shame on California for banning marriage
- California Supreme Court decision
- Status of Same Sex Relationships by State
- UK Marriage, cohabitation and civil partnerships
- FAQs about the (UK) Civil Partnership Act of 2004
- Background and Laws on Massachusetts Same-Sex Marriage
- FAQs about gay couples getting married Massachusetts
- Human Rights Campaign Marriage and Recognition portal
- Which other countries’ relationships are recognized as a UK Civil Partnerships?
- There are 1,138 US federal laws that offer rights and protection to married couples