Defense of Marriage Acts

AuthorRichard Leiter
Pages433-440

Page 433

The definition of and the qualifications for civil marriage in the 50 states has been at the forefront of political debate for more than a decade. In 1993, the Hawaii Supreme Court first addressed the issue of same-sex marriage when it found, in Baehr v. Lewin, 852 P.2d 44 (1993), that the Department of Health violated the Hawaii Constitution’s Equal Protection Clause when it refused to issue marriage licenses to same sex couples. Voters effectively ended the lawsuit by approving a constitutional amendment which permitted the legislature to prohibit marriage between persons of the same sex. Since Hawaii’s amendment, almost every other state has enacted an amendment to its constitution or a statute that in some way involves civil recognition of relationships between persons of the same gender. Activists have called such laws “Defense of Marriage Acts” or “DOMA.”

One of the lynchpins of our federal system of government is that each state must, to a certain extent, honor the laws of every other state. After all, if each state were able to arbitrarily ignore the laws of other states, unimaginable legal chaos could ensue. Issues involving the marriage relationship were one of the significant issues where state laws came into conflict with each other. If a couple were to get married in one state and move to another, which law would govern that relationship? For example, there is surprising variety among the states about minimum ages to be legally married, or grounds for divorce. In order to address this situation, the framers devised protection in the Full Faith and Credit Clause of the U.S. Constitution, Art. IV, § 1: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

This provision puts states in very precarious circumstances where significant changes to the definitions of marriage are concerned. For example, if a state is opposed to same-sex marriage, but a couple moves to that state from one where their same-sex union is legal, whose laws will govern the relationship? Do the employers of members of same-sex unions have to provide family health insurance or pensions to the “spouse” in these unions—even if the union is illegal in the state? The situation can get quite complicated very quickly.

The table below considers states which have enacted legislation which provides recognition only to those marriages which are valid under its laws. It also considers other types of relationships established by state law. A few states have provided for civil unions, domestic partnerships, and covenant marriage. The definitions of each vary depending on each state.

Finally, the table considers the few states whose adoption law expressly considers same-sex relationships.

The law in this area is very volatile, and, nearly every state election cycle includes a DOMA provision. As these acts are passed by the states, they are usually immediately challenged in the courts. The table below includes many footnotes that refer to cases pending before various state and federal courts.

1This chapter was compiled by Keith Peters, Esq., attorney at Cline, Williams, Wright, Johnson & Oldfather, LLP, Lincoln, Nebraska. It was compiled while he was a student at University of Nebraska, College of Law.

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Table 28: Defense of Marriage Acts
State Same sex marriage discussed by Statute Same sex marriage prohibited by Constitution Recognize only marriage from other states consistent with its laws Civil Union Domestic Partnership Covenant Marriage Limitation on Adoption
1. Benefits programs facially discriminated against same-sex domestic partners by covering married public employees but not domestic partners because, unlike opposite-sex domestic partners, same-sex domestic partners were barred from marriage under Alaska Const. art. I, § 25, as well as AS 25.05.011(a), and thus were absolutely precluded from eligibility. The policy was not substantially related to government interests and thus violated equal protection under Alaska Const. art. I, § 1. Alaska Civ. Liberties Union v. State, 122 P.3d 781 (Alaska 2005).
2. Declared unconstitutional by the Superior Court of San Francisco County, which decision was later reversed by the Court of Appeals of California, First Appellate District. In re Marriage Cases, 143 Cal. App. 4th 873, 49 Cal. Rptr. 3d 675 (Cal. App. 1st Dist. 2006). The Court of Appeals decision was depublished following a grant of review by the California Supreme Court, 149 P.3d 737, 53 Cal. Rptr. 3d 317 (Cal. 2006). The case is still pending before the California Supreme Court.
3. Connecticut law does not authorize a state or local official to issue a marriage license or perform a marriage ceremony for a same-sex couple. Atty. Gen. Op. 04-006 (May 17, 2004).
4. Rosengarten v. Downee, 71 Conn. App. 372, 802 A.2d 170 (2002) (holding that Connecticut court lacked jurisdiction to dissolve a same-sex marriage or civil union that would not be valid under Connecticut law).
ALABAMA Prohibited Ala. Code § 30-1-19(b) Ala. Const. Art. I § 36.03 Ala. Code § 30-1-19(e)
ALASKA Prohibited Alaska Stat. §§ 25.05.011, 25.05.013 Alaska Const. Art. I, § 25 Alaska Stat. § 25.05.13 Not established by Statute, but employers must provide equal benefits2
ARIZONA Prohibited Ariz. Rev. Stat. § 25-101 Ariz. Rev. Stat. § 25-112 Ariz. Rev. Stat §§ 25-901 to 902
ARKANSAS Prohibited Ark. Code Ann. § 9-11-109 Ark. Const. Amend. 83, § 1 Ark. Code Ann. § 9-11-107 Employer permitted to extend benefits Ark. Code Ann. § 9-11-208(d) Ark. Code Ann. §§9-11-801 to 811
CALIFORNIA Prohibited Cal. Fam. Code § 300, 308.53 Cal. Fam. Code §308 Established by Statute Cal. Fam. Code §§ 297, 297.5, 298, 298.5, 299
COLORADO Prohibited Colo. Rev. Stat. § 14-2-104(1)(b) Colo. Const. Art. II, §31 Colo. Rev. Stat. § 14-2-104(2) Colo. Rev. Stat. §14-15-101 et seq.
CONNECTICUT Not authorized4 Not recognized by court decision5 Conn. Gen. Stat. §§ 46b-38aa-38pp

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State Same sex marriage discussed by Statute Same sex marriage prohibited by Constitution Recognize only marriage from other states consistent with its laws Civil Union Domestic Partnership Covenant Marriage Limitation on Adoption
5. In re Hart, 806 A.2d 1179 (Del. Fam. Ct. 2001) (holding that the same-sex life partner of a child’s adoptive parent could adopt the child as a second parent).
6. Dean v. District of Columbia, 653 A.2d 307 (D.C. App. 1995) (holding that it is impossible for two people of the same sex to marry).
7. Florida law prohibits anyone from adopting a child if they are homosexual, even if they would otherwise qualify to adopt that child. Fla. Stat. §63.042(3) (2007)
8. The Amendment itself only allows the Legislature to prohibit marriage between same-sex couples, it does not prohibit marriage between same sex couples all together. See Haw. Const. Art I, § 23.
9. Petition of K.M., 274 Ill. App. 3d 189, 653 N.E.2d 888 (1995) (holding that adoption act should be construed to grant unmarried couples the right to jointly adopt a child, regardless of sex or sexual orientation).
10. In re Adoption of K.S.P., 804 N.E.2d 1253 (Ind. Ct. App. 2004) (holding that a same-sex domestic partner may adopt the biological children of her partner without divesting the parental rights of the biological parent).
DELAWARE Prohibited Del. Code Ann. Tit. 13, § 101(a), punishable by fine, §102 Prohibited Del. Code Ann. Tit. 13, § 101(d), punishable by fine, §104 Permitted by court decision6
DISTRICT OF COLUMBIA Prohibited by court decision7 D.C. Code §46-405 D.C. Code §32-701 et seq.
FLORIDA Prohibited Fla. Stat. § 741.212 Fla. Stat. §741.212 Prohibited, Fla. Stat. §63.042(3)8
GEORGIA Prohibited Ga. Code Ann. § 19-3-3.1(a) Ga. Const. Art 1, § 4 Ga. Code Ann. § 19-3-3.1(b)
HAWAII Prohibited Haw. Rev. Stat. §§
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