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A Primer on Same-Sex Marriage, Civil
Unions, Domestic Partnerships, and Defense of Marriage Acts
—Holly Hartman
Definitions
“Same-sex marriage” means legal
marriage between people of the same sex.
* Massachusetts (since 2004) and California (since 2008) issue marriage licenses to same-sex couples.
“Civil union” is a category of law
that was created to extend rights to same-sex couples. These rights are
recognized only in the state where the couple resides.
* Vermont (since 2000), Connecticut (since Oct. 2005), New Jersey
(since Dec. 2006), and New Hampshire (since 2007).
“Domestic partnership” is a new
category of law that was created to extend rights to unmarried couples,
including (but not necessarily limited to) same-sex couples. Laws vary
among states, cities, and counties. Terminology also varies; for example,
Hawaii has “reciprocal beneficiaries law.” Any rights are
recognized only on the state or local level.
* Statewide laws in Hawaii, Maine, Oregon, Washington,
and district-wide laws in the District of Columbia, confer certain spousal
rights to same-sex couples.
What's the Difference?
The most significant difference between marriage and civil unions (or
domestic partnerships) is that only marriage offers federal benefits and
protections.
According to the federal government's General Accounting Office (GAO),
more than 1,100 rights and protections are conferred to U.S. citizens upon
marriage. Areas affected include Social Security benefits, veterans'
benefits, health insurance, Medicaid, hospital visitation, estate taxes,
retirement savings, pensions, family leave, and immigration law.
Because same-sex marriages in Massachusetts and California, civil unions, and domestic
partnerships are not federally recognized, any benefits available at the
state or local level are subject to federal taxation. For example, a woman
whose health insurance covers her female partner must pay federal taxes on
the total employer cost for that insurance.
Federal Legislation: DOMA
In 1996, the Defense of Marriage Act (DOMA) was passed by Congress and
signed into law by President Clinton. DOMA allows each state to choose
whether or not to recognize a same-sex union that is recognized in another
state—thus allowing a choice of whether to enforce the U.S.
Constitution's “full faith and credit” clause (which requires
each state to recognize the laws and legal contracts of other states) in
this matter.
However, DOMA has yet to be fully tested in the courts. Because the
U.S. Constitution does not give Congress the power to limit the scope of
the “full faith and credit” clause—only to enforce its
application—the constitutionality of DOMA has not been proven.
State Legislation
Since DOMA was passed in 1996, almost every state has taken advantage
of the opportunity it offers by either enacting legislation or amending
its state constitution to declare same-sex marriages invalid, even for
couples married in a state where such marriages are licensed.
In addition to preventing marriage licenses from being issued to
opposite-sex couples, state legislation may be used in efforts to overrule
existing state or local rights and protections for same-sex couples and
their children.
Proposed Federal Marriage Amendment
Because the constitutionality of DOMA and state legislation against
same-sex marriage has yet to be fully tested by the courts, relying on
legislation to settle the issue of same-sex marriage is of questionable
use. As a result, text for a proposed constitutional amendment known as
the Federal Marriage Amendment (FMA) has been introduced to Congress on
multiple occasions since 2002.
The amendment would define marriage as the union of a man and a woman
and could be used to overrule state or local protections for same-sex
couples and their children. To become part of the U.S. Constitution, the
FMA would need to be approved by two thirds of Congress and then ratified
by three fourths of state legislatures.
—Holly Hartman
See also: Policies Pertaining to Same-Sex Marriages,
Civil Unions, and Domestic Partnerships, which lists
the status of legislation in each state and in countries around the
world.
Information Please® Database, © 2007 Pearson
Education, Inc. All rights reserved.
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