Section 2.1 Introduction

• Library: Family Law Deskbook and 2014 Supp

I. (§2.1) Introduction

Marriage is one of the fundamental civil rights guaranteed
by the Fourteenth Amendment to the United States Constitution. Loving v. Va., 388 U.S. 1 (1967). Marriage
falls within the exclusive province of the states under the Tenth Amendment. Usually, the laws and statutes regulating marriage are one of the few areas in family law that do not change dramatically. Before 1996, when Hawaii briefly flirted with same-sex marriages, there was little interest in defining “marriage.” Then came the federal Defense of Marriage Act,
1 U.S.C. § 7 and 28 U.S.C. § 1738C, which led to many states, including Missouri, to enact laws defining marriage as between a man and a woman only. Section 451.022, RSMo Supp. 2011. That brought a few more years of relative inactivity.

As discussed further in §2.18 below, beginning in 2004, a wave of constitutional amendments to limit marriage as only between a man and woman swept the states, including a constitutional amendment approved by the voters of Missouri. Several other states were also debating the issue following the Massachusetts Supreme Court’s decision in Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003),
in which the state policy of denying marriage licenses to same-sex couples was found to violate numerous provisions
of that state’s constitution. The Massachusetts justices similarly determined that the legislative attempt to address Goodridge by prohibiting same-sex marriages but allowing same-sex civil unions also violated the equal protection and due process requirements of the Massachusetts Constitution. In reOpinions of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004). Other states have entered the debate over the rights of persons in same-sex relationships. California enacted the Domestic Partner Rights and Responsibilities Act of 2003, effective January 1, 2005, which provides those rights and responsibilities of married persons to persons registered as domestic partners on or after the effective date.

This debate has expanded, and now Massachusetts, Connecticut, California (stayed pending appeal), Iowa, New Hampshire, Vermont, Washington, and the District of Columbia, as of the publication date of this deskbook, issue marriage licenses to same-sex couples. Rhode Island, New York, and Maryland currently recognize same-sex marriages from other states. Delaware, Hawaii, Illinois, New Jersey, and currently California allow for civil unions. Several other states...