Legal Aspects of Same-sex Relationships in Connecticut

JurisdictionConnecticut,United States,Federal
Publication year2021
CitationVol. 85 Pg. 199
Connecticut Bar Journal
Volume 85.


Connecticut Bar Journal
Volume 85, No. 3, Pg. 199
September 2011


By Frank S. Berall(fn*)

Until fairly recently, a traditional American family consisted of a husband, a wife, and children. Non-traditional families, on the other hand, were generally limited to unmarried heterosexual couples (either with or without children) or a single heterosexual individual raising a child or children alone. Homosexual individuals or couples did not enter into the American family equation at all, despite such relationships having existed since antiquity. This article will discuss the growing recognition of same-sex marriages in Connecticut and elsewhere, and examine some of the most pressing legal issues facing these new American non-traditional families.

I. Background

A. Recognition of Same-Sex Marriages and Civil Unions

Legalization of same-sex marriage in the United States occurred first in Massachusetts,(fn1) then in Connecticut,(fn2) Iowa,(fn3) Vermont,(fn4) New Hampshire,(fn5) California (temporarily),(fn6) the District of Columbia,(fn7) and New York.(fn8) In New Jersey(fn9) and Rhode Island,(fn10) same-sex couples are permitted to have civil unions.

Connecticut,(fn11) the District of Columbia,(fn12) and Vermont(fn13) had all enacted civil union laws before they made same-sex marriage legal. Civil unions grant joint couples certain state rights similar to those available to married couples, such as insurance coverage, state tax benefits, and hospital visitation. But couples in civil unions lack other legal protections, benefits, and the status of marriage provided under state law to heterosexual couples.

New Jersey permits same-sex civil unions, but not same-sex marriages.(fn14) The latter have been recognized for purposes of divorce, but not for any other purpose.

Rhode Island enacted a civil union bill for gay couples over the opposition of gay rights advocates who called the legislation discriminatory, because it did not permit same-sex marriage. However, Rhode Island law grants gay and lesbian couples most of the rights and benefits given to married couples.(fn15)

There are couples living in registered or domestic partnerships in Broward County, Florida,(fn16) California, Maryland, Oregon, and Washington, as well as those registered as reciprocal beneficiaries in Hawaii,(fn17) or with designated beneficiary agreements in Colorado.(fn18) Foreign countries permitting same-sex marriage include The Netherlands,(fn19) Belgium,(fn20) Canada,(fn21) South Africa,(fn22) Iceland,(fn23) Portugal,(fn24) Spain,(fn25 ) Norway,(fn26) Sweden,(fn27) Argentina,(fn28) and Mexico City.(fn29) Many other countries permit various kinds of partnerships between same-sex couples, giving them the equivalent of marriage rights.

B. Federal and State "Defense of Marriage" Acts

The Federal Defense of Marriage Act ("DOMA") defines a marriage as a legal union between one man and one woman.(fn30) Specifically, DOMA states:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administration bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

DOMA also states that no U.S. jurisdiction is required to give effect to any public act, record, or judicial proceeding of any other jurisdiction respecting a same-sex marriage, or a right, or claim arising from such marriage.(fn31)

The Federal Constitution's Full Faith and Credit clause applies only between the states, not between the United States and foreign countries.(fn32) Thus, only couples traveling between states are subject to it; it does not affect married couples entering this country from abroad.(fn33)

Section 3 of DOMA, defining marriage as "only a legal union between one man and one woman as husband and wife," was recently held to be unconstitutional in two cases decided by the same United States District Court Judge sitting in Massachusetts.(fn34) These cases are now on appeal to the First Circuit, with further proceedings stayed in the District Court. While the losing parties will no doubt petition for certiorari, the Department of Justice has notified the First Circuit's clerk that it will "cease to defend" DOMA.(fn35)

The plaintiffs in Pedersen v. Office of Personnel Management,(fn36) currently pending in the District of Connecticut, seek a determination that DOMA, as applied to three same-sex married couples and one widower of a same-sex marriage, all in states permitting same-sex marriage, including Connecticut, is unconstitutional. And the plaintiff in Windsor v. United States(fn37) claims a refund of $363,053 in federal estate tax levied on her deceased same-sex spouse's estate. Ms. Windsor and her spouse were legally married in Canada. While New York recognized their marriage, DOMA prevented its recognition under federal law. No tax would have been due if federal law recognized their marriage, as no tax would have been due at the death of a spouse in an opposite-sex couple.(fn38) The I.R.S. disallowed Ms. Windsor's refund claim because "both spouses were women and since under DOMA 'spouse' refers only to a person of the opposite sex who is a husband or a wife, Section 2056 is inapplicable, because the surviving spouse is not a spouse as defined by DOMA."(fn39)

Another action challenging DOMA involving Connecticut citizens arose in 2011 in the Appeal of Carmen Cardona.(fn40) She was a disabled Navy veteran, had married her partner in Connecticut in 2010 and applied to the Department of Veterans Affairs for an increase in her monthly disability compensation as newly married, but her application was rejected because her wife was also female. The Veterans Legal Services Clinic at Yale Law School filed a notice of appeal with the Court of Appeals for Veterans Claims in October 2011. DOMA's application in this case will probably be defended by that department's attorneys; if not, then by attorneys hired by the Speaker of the House, John A. Boehner. This is the first time DOMA has been challenged in the veterans' court system. Ms. Cardona alleges the violation of her Fifth Amendment due process rights(fn41) because the federal definition of a spouse as "a person of the opposite sex" excluded her spouse.(fn42)

In Golinski v. United States,(fn43) a lesbian federal employee claimed her same-sex spouse was wrongly denied health insurance. She alleged that DOMA violates the Fourteenth Amendment's equal protection provision.(fn44)

The House of Representatives' Bipartisan Legal Advisory Group alleged that DOMA is subject to a lower level of court scrutiny because this Advisory Group claims that gays and lesbians need not be judged by the same legal criteria used for groups such as racial minorities and women.(fn45) The latter groups receive heightened protection from discrimination, while gays and lesbians are far from politically powerless and have ample ability to influence lawmakers, according to the Advisory Group.(fn46)

The Obama Administration's brief, filed in July 2010, urged the court to find DOMA unconstitutional. It argued that DOMA reflects congressional hostility to gays, targeting an immutable characteristic, namely sexual orientation which has nothing to do with the ability to contribute to society. Furthermore, it characterized gays and lesbians as minorities with limited political power.(fn47)

It is widely anticipated that the losing side in these District Court cases (Gill, Pedersen, Windsor, and Golinski) will appeal to the appropriate Circuit Court of Appeals, and then even seek certiorari from the Supreme Court. A decision by the latter would probably not be expected any earlier than 2013. However, it is clear that the Department of Justice does not intend to defend the constitutionality of DOMA.

Twenty-nine states have amended their constitutions to protect "traditional" marriage, explicitly prohibiting same-sex marriage, and restricting marriage to one man and one woman.(fn48) Twenty-five states and the Commonwealth of Puerto Rico have statutory DOMAs.(fn49) Guam, an overseas territory of the United States, recognizes neither same-sex marriage, nor civil unions nor does American Samoa.(fn50)

In addition to their statutory DOMAs,(fn51) which made marriage exclusively heterosexual, Georgia, Kansas, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, and Oregon also have similar constitutional provisions to that effect.(fn52)

Most states' DOMAs have survived court challenges. Many of them may also be designed to define and protect the institution of marriage, by allowing a state to ignore same sex marriages performed elsewhere. Although twenty-seven states have passed DOMAs, a growing number of states allow, or at least recognize, same-sex marriages or civil unions.

II. Tax Consequences Of Non-Traditional Families Under State And Federal Law

The differences between the laws of those jurisdictions permitting same-sex marriage and the federal DOMA (which does not), result in married same-sex couples being governed by two inconsistent regimes which obviously affects their income tax filing. Internal Revenue Code ("Code") Section 6013(a)(fn53) permits only a "husband and wife" to file jointly. It would be a very strained construction for a court to call the parties to a same-sex marriage "husband and wife" (although they could probably be called "spouses") even if such a marriage were recognized under the Code. For that to happen, the apparent conflict between the Code and DOMA would have to be resolved for a same-sex marriage to receive tax recognition. But this...

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