Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to society. For those who choose to marry, and for their children, marriage also provides an abundance of legal, financial, and social benefits. In return it imposes weighty legal, financial, and social obligations (see Goodridge v. Department of Public Health 2003).
A growing number of jurisdictions around the world are according legal recognition to same-sex relationships. The types of recognition vary, some jurisdictions according all of the rights and obligations of marriage and others only according some. Similarly, some states within the United States have been expanding the rights and obligations accorded to same-sex couples, although others have acted to restrict or preclude the extension of rights and obligations to same-sex couples and their families.
Several countries have recognized that same-sex couples, like different-sex couples, both need and deserve to have their relationships accorded legal recognition. Some countries, such as Spain, the Netherlands, Belgium, and Canada, permit same-sex couples to marry. Other countries, such as France, Germany, Denmark, Norway, Iceland, Finland, Sweden, and Great Britain, offer many but not all of the rights and obligations of marriage.
Some of the differences among these countries include how they treat adoption (e.g., whether international adoptions are permitted), taxes, pension benefits, citizenship (whether at least one of the individuals entering into the relationship must be a citizen of the country recognizing the status), and the presumption of parenthood (whether a child born into the relationship will be presumed to be the child of both adults).
A separate issue is whether families involving same-sex couples will be recognized on a subnational level. Thus, relationships or incidents of relationships might be recognized in a particular city or region, even if they are not recognized nationally. For example, Buenos Aires recognizes civil unions, even though Argentina has not yet decided to do so, and New South Wales, Australia, has legislation regarding how property should be distributed upon the dissolution of a same-sex relationship, even though that is not true for all of Australia.
In the United States, the states differ greatly with respect to the ways that they treat same-sex relationships. Some states not only refuse to recognize same-sex relationships but also have passed state constitutional amendments precluding the legal recognition of same-sex marriage or same-sex unions more generally. These amendments have been open to a variety of interpretations. For example, the Ohio state constitutional amendment has been interpreted to preclude the extension of certain domestic violence protections to nonmarital couples, whether composed of individuals of the same sex or of different sexes.
Other states recognize same-sex unions but stop short of ascribing to those relationships all of the rights and obligations of marriage. For example, Hawaii recognizes reciprocal beneficiaries status, which permits both same-sex and different-sex couples to receive certain limited benefits specified by the legislature. California offers a much more robust array of benefits and responsibilities for domestic partners, although even this status is not the equivalent of marriage. Still other states, such as Vermont, accord to same-sex couples the rights and benefits of marriage, but call the relationship a civil union rather than a marriage. As of mid-2006, only Massachusetts recognized same-sex marriage.
Regardless of how the relationship is designated by the state, same-sex couples are not entitled to the numerous federal benefits that are accorded to different-sex married couples, because the U.S. Congress passed legislation in 1996 (the Defense of Marriage Act) specifying that only a marriage between a man and a woman will count as a marriage for federal purposes. The federal statute affects benefits in a broad range of areas, including social security, veteran’s affairs, immigration, taxes, and bankruptcy, among others.
The Defense of Marriage Act was passed for a variety of reasons. Many of its supporters, whether or not they self-identify as part of the Religious Right, cite religious reasons as their justification—for example, by suggesting that God did not intend for same-sex couples to be able to marry. Other supporters worry that recognition of same-sex marriages would be too costly to the state or would somehow devalue different-sex marriage. Those asserting these arguments do not seem to appreciate that the same arguments have been or could be offered to justify preventing many types of marriages, including interreligious, interracial, or intergenerational marriage.
While the Defense of Marriage Act precludes the extension of a substantial number of federal benefits, there are nonetheless a variety of matters of fundamental importance that are determined by state law. For example, there is no national law regarding adoption by same-sex couples—states determine that. There are at least two issues that should be discussed when adoption is being considered. Some states (e.g., Florida) prohibit those with a same-sex orientation from adopting, even if the state permits unmarried individuals to adopt. An individual who had been raising a child for over ten years as a foster parent might be precluded from cementing that relationship through the vehicle of adoption if the would-be adoptive parent is in a relationship with someone of the same sex.
Other states permit gays and lesbians to adopt as individuals. However, they do not permit both members of a nonmarital couple to establish parental relations with the same child, which can result in great difficulties should the adults’ relationship end because of death or estrangement. Suppose, for example, that a lesbian or gay man has custody of a child and is living with a partner. Further suppose that no other adult has parental rights to that child. In many states, the partner will not be allowed to adopt the child, which means that should something happen to the biological or adoptive parent, the child and the partner might be treated as legal strangers to each other.
Refusing to permit both members of a same-sex couple to establish legal relations with a child can have negative consequences, both materially and emotionally. If the partner is not legally recognized as a parent, then the partner’s employer might not recognize the relationship between the partner and the child, which might mean that insurance or other employment benefits would not be extended to that child. The partner might also have more difficulty functioning as a parent, whether when meeting with teachers, visiting the child in the hospital, or authorizing medical treatment. In addition, if the partner will not be recognized by the state as a parent, that individual may have less incentive to form strong bonds with the child, to the detriment of both the partner and the child.
The difficulties that may arise because of a lack of a formally recognized relationship between the partner and the parent’s child can occur analogously if the partners themselves cannot have their relationship formally recognized. If same-sex partners are not permitted to marry, an employer might not recognize the relationship between the two adults, which would mean that insurance benefits might not be extended to the partner. A partner who might otherwise stay home with a child or elderly parent might not be able to do so because of that lack of insurance coverage. Basically, there are a variety of benefits provided by third parties, such as an employer or the government, that will not be available unless same-sex partners can have their relationships legally recognized.
The benefits of legal recognition are nonfinancial as well. For example, hospital visitation and the ability to have a say in medical decision making may depend upon one’s being able to establish a familial relationship with the patient. Were the states to permit same-sex couples to marry, many of these difficulties would be averted.
Marriage is also important because of the protections that will be provided should the relationship end because of death or dissolution. When married couples divorce or one of the parties dies, the state has a system in place specifying how property will be distributed or, perhaps, whether one member of the couple will be ordered to provide support for the other. When same-sex couples are precluded from marrying, they are unable to avail themselves of this system. Perhaps they will make private agreements or other arrangements that will avoid some of the difficulties that are caused by not having access to this system. However, for those who do not make the necessary arrangements beforehand, there is a definite risk that one of the parties may be treated unfairly.
Marriage also has symbolic importance to the parties themselves, as well as to society at large. By precluding same-sex partners from making a public commitment, the state is removing one of the ways that individuals act to strengthen their relationships, which means that the state is removing one of the supporting pillars of long-lasting relationships. Certainly, individuals can remain in committed relationships without marrying, and individuals who do marry may not remain in a committed relationship, so the claim is not that marriage is a necessary or sufficient condition for the maintenance of a healthy or long-lasting union. Further, it may well be that the couple can marry within their faith tradition. That said, however, the state’s recognition of same-sex unions helps add stability to those relationships. Marriage gives individuals security so that they are more willing to invest in and make sacrifices for their relationships, which helps the individuals themselves, their families, and society as a whole.
The refusal to permit same-sex couples to marry has other negative effects as well. It sends a message to society that certain individuals either cannot commit to marriage or, perhaps, do not deserve the opportunity to marry. It also provides a rationale for the imposition of burdens on a particular group that might otherwise be difficult to justify. For example, limitations on adoption and markedly different criminal sentences for sexual relations between adults and minors have been rationalized by appealing to the mere possibility that different-sex couples might marry.
Jurisdictions vary with respect to whether they will recognize same-sex unions and, if they do, whether they will accord those unions the status or the rights and obligations of marriage. When states refuse to accord legal recognition to same-sex relationships, same-sex couples and their families are disadvantaged, so the growing number of jurisdictions recognizing such unions is a development that might be expected to diminish many of the difficulties that such families face.
SEE ALSO Gender; Marriage; Politics, Gay and Lesbian
Goodridge v. Department of Public Health, 798 N.E.2d 941, 948 (Mass. 2003).
Lofton v. Secretary of Dept. of Children and Family Services, 358 F.3d 804 (11th Circuit 2004).
State v. Limon, 83 P.3d 229 (Kansas Appellate 2004), reversed, 122 P.3d 22 (2005).
Waaldijk, Kees. 2004. Others May Follow: The Introduction of Marriage, Quasi-Marriage, and Semi-Marriage for Same-Sex Couples in European Countries. New England Law Review 38 (3): 569–589.