Defense of Marriage Acts

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28. Defense of Marriage Acts

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 Constitutions 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 Hawaiis 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 unionseven 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.

*This 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.

Table 28: Defense of Marriage Acts
StateSame sex marriage discussed by StatuteSame sex marriage prohibited by ConstitutionRecognize only marriage from other states consistent with its lawsCivil UnionDomestic PartnershipCovenant MarriageLimitation 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).
ALABAMAProhibited Ala. Code § 30-1-19(b)Ala. Const. Art. I § 36.03Ala. Code § 30-1-19(e)    
ALASKAProhibited Alaska Stat. §§ 25.05.011, 25.05.013Alaska Const. Art. I, § 25Alaska Stat. § 25.05.13 Not established by Statute, but employers must provide equal benefits 1  
ARIZONAProhibited Ariz. Rev. Stat. § 25-101 Ariz. Rev. Stat. § 25-112  Ariz. Rev. Stat §§ 25-901 to 902 
ARKANSASProhibited Ark. Code Ann. § 9-11-109Ark. Const. Amend. 83, § 1Ark. 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 
CALIFORNIAProhibited Cal. Fam. Code § 300, 308.52 Cal. Fam. Code §308 Established by Statute Cal. Fam. Code §§ 297, 297.5, 298, 298.5, 299  
COLORADOProhibited Colo. Rev. Stat. § 14-2-104(1)(b)Colo. Const. Art. II, §31Colo. Rev. Stat. § 14-2-104(2) Colo. Rev. Stat. §14-15-101 et seq.  
CONNECTICUTNot authorized 3 Not recognized by court decision 4Conn. Gen. Stat. §§ 46b-38aa-38pp   
StateSame sex marriage discussed by StatuteSame sex marriage prohibited by ConstitutionRecognize only marriage from other states consistent with its lawsCivil UnionDomestic PartnershipCovenant MarriageLimitation on Adoption
5. In re Hart, 806 A.2d 1179 (Del. Fam. Ct. 2001) (holding that the same-sex life partner of a childs 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).
DELAWAREProhibited 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 decision 5
DISTRICT OF COLUMBIAProhibited by court decision 6 D.C. Code §46-405 D.C. Code §32-701 et seq.  
FLORIDAProhibited Fla. Stat. § 741.212 Fla. Stat. §741.212   Prohibited, Fla. Stat. §63.042(3)7
GEORGIAProhibited Ga. Code Ann. § 19-3-3.1(a)Ga. Const. Art 1, § 4Ga. Code Ann. § 19-3-3.1(b)    
HAWAIIProhibited Haw. Rev. Stat. §§ 572-1Haw. Const. Art. I, § 238Haw. Rev. Stat. §572-3Solemnization permitted, but no legal effect Haw. Rev. Stat. § 572-1.6   
IDAHOProhibited Idaho Code § 32-201, 202, punishable, § 215 Idaho Code § 32-209    
ILLINOISProhibited 750 Ill. Comp. Stat. §§ 5/ 212(5); 5/213.1 750 Ill. Comp. Stat § 5/216   Permitted by court decision 9
INDIANAProhibited Ind. Code § 31-11-1-1(a) Ind. Code § 31-11-1-1(b)   Permitted by court decision 10
IOWAProhibited Iowa Code. Ann. § 595-2(1) Iowa Code Ann. § 595-20    
StateSame sex marriage discussed by StatuteSame sex marriage prohibited by ConstitutionRecognize only marriage from other states consistent with its lawsCivil UnionDomestic PartnershipCovenant MarriageLimitation on Adoption
11. Marylands statute was recently declared unconstitutional in a trial court, Deane v. Conaway, No.: 24-C-04-005390 (Circuit Court for Baltimore City) affd without opinion, Duckworth v. Deane, 385 Md. 509 (2005). See pdf.
12. Goodrich v. Department of Public Health, 798 N.E.2d 941 (2003).
13. Massachusetts will not recognize a marriage from another state inconsistent with its own state laws, nor will it perform marriages of nonresidents inconsistent with the laws of their state. Ann. Laws Mass. ch. 207 §10-12 (2007)
14. The Michigan Adoption Code provides that adoption shall be by a person or a married couple. Because a contract entered into by two people of the same sex in a state that recognizes same--sex marriages is invalid in Michigan, such individuals are not recognized to be a married couple in Michigan and they cannot adopt a child together in Michigan; however, one of them may adopt a child as a single person. OP ATTY GEN, Sept. 14, 2004, No. 7160.
KANSASProhibited Kan. Rev. Stat. § 23-101(a)Kan. Const. Art. 15, § 16Kan. Rev. Stat. §23-115Unrecognized Kan. Const. Art. 15, § 16Unrecognized Kan. Const. Art. 15, § 16  
KENTUCKYProhibited Ky. Rev. Stat. §§ 402.005; 402.020(1)(d)Ky. Const. § 233aKy. Rev. Stat. §§ 402.040(2); 402.045Unrecognized Ky Const. § 233aUnrecognized Ky Const. § 233a  
LOUISIANAProhibited La. Civ. Code Ann. Art. 86, 89La. Const. Art XII, § 15La. Civ. Code Ann. Art. 3520Unrecognized La. Const. Art. XII, § 15Unrecognized La. Const. Art. XII, § 15La. Rev. Stat. § 9:272 
MAINEProhibited Me. Rev. Stat. tit. 19-A § 650, 701 Me. Rev. Stat. tit. 19-A § 701 Me. Rev.Stat. tit. 22 § 2710  
MARYLANDProhibited Md. Code Ann. Fam. Law § 2-20111      
MASSACHUSETTSPermitted by Mass. S.Ct decision 12 Ann. Laws Mass. ch. 207 §10-1213    
MICHIGANProhibited Mich. Comp. Laws § 551.1,Mich. Const. Art. 1, § 25Mich. Comp. Laws §§ 551.271, 551.272Unrecognized Mich. Const. Art. 1, § 25Unrecognized Mich. Const. Art. 1, § 25 Mich. Comp. Laws § 710.24 per Atty Gen. Opinion 14
MINNESOTAProhibited Minn. Stat. §§ 517.01, 517.03(a)(4), Minn. Stat. § 517.03(b)    
MISSISSIPPIProhibited Miss. Code Ann. § 93-1-1(2)Miss. Const. Ann. Art. 14, § 263AMiss. Code. Ann. § 93-1-3; Miss. Const. Ann. Art. 14, § 263A   Miss. Code Ann. §93-17-3(5)
StateSame sex marriage discussed by StatuteSame sex marriage prohibited by ConstitutionRecognize only marriage from other states consistent with its lawsCivil UnionDomestic PartnershipCovenant MarriageLimitation on Adoption
15. Snetsinger v. Montana University Sys., 104 P.3d 446 (Mont. 2004). Because Montana law permitted domestic partner benefits for opposite-sex partners, it was unconstitutional to prohibit same-sex partners from receiving the same benefits.
16. Found unconstitutional by Citizens for Equal Protection, Inc. v. Bruning, 368 F. Supp. 2d 980 (D. Neb. 2005). Reversed, and found constitutional by 455 F.3d 859 (8th Cir. 2006)
17. In re Adoption of Luke, 263 Neb. 365, 640 N.W.2d 374 (2002) (holding that an unmarried couple, in this case a same-sex couple cannot adopt a child jointly, and the partner of the childs biological mother cannot adopt the child without a relinquishment of the biological mothers parental rights).
18. Although the statute does not specially prohibit same-sex marriage, the New Jersey Supreme Judicial Court has interpreted the statute in Rutgers Council of AAUP Chapters v. Rutgers State Univ., 689 A.2d 828 (N.J. Super Ct. App. Div. 1997), affd without opinion in 707 A.2d 151 (1998).
19. The New Jersey Supreme Court found that the statute does not violate New Jerseys constitution. Lewis v. Harris, 875 A.2d 259 (2005).
20. The New York Court of Appeals Third Division affirmed the trial courts ruling that the terms husband and wife in the statute do not authorize the issuance of a marriage license to same-sex couples. Seymour v. Holcumb, 811 N.Y.S.2d 134 (N.Y. Ct. App. 3rd Div. 2006).
21. The Constitution of the State of New York does not address marriage or same-sex marriage. In Hernandez, the New York Supreme Court Appellate Division First Department reversed a trial courts decision which found that the words wife and husband in the constitution violated equal protection and should be interpreted to permit same sex marriage. The New York Court of Appeals affirmed the appellate court, holding that the rule was rationally related to a legitimate state interest. 7 N.Y.3d 338, 855 N.E.2d 1 (2006).
MISSOURIProhibited Mo. Rev. Stat. § 451.022(3)Mo. Const. Art 1, § 33Mo. Rev. Stat. § 451.022(4)    
MONTANAProhibited Mont. Code Ann. § 40-1-401(1)(d)Mont. Const. Art. XIII, § 7 Void Mont. Code Ann. § 40-1-401(4)Benefits to same-sex couples permitted by Mont. S.Ct decision 15  
NEBRASKA Neb. Const. Art 1, § 2916Neb. Const. Art 1, § 29Invalid, unrecognized Neb. Const. Art. I, § 29Invalid, unrecognized Neb. Const. Art. I, § 29 Prohibited by Court decision 17
NEVADAProhibited Nev. Rev. Stat. § 122.020Nev. Const. Art. 1, § 21     
NEW HAMPSHIREProhibited N.H. Rev. Stat. §§ 457:1, 451:2 N.H. Rev. Stat. § 457:3    
NEW JERSEYProhibited N.J. Stat. § 37:1-118,19  Authorized N.J. Stat. §§ 37:1-28 to 34Authorized N.J. Stat. §§ 26:8A-1 to A13  
NEW MEXICO       
NEW YORKProhibited N.Y. Dom. Rel. § 620Hernandez v. Robles, 805 N.Y.S.2d 354 (N.Y. App. Div. 2005)21    N.Y. Dom. Rel. § 110
NORTH CAROLINAProhibited N.C. Gen. Stat. § 51-1.2 N.C. Gen. Stat. §51-1.2    
StateSame sex marriage discussed by StatuteSame sex marriage prohibited by ConstitutionRecognize only marriage from other states consistent with its lawsCivil UnionDomestic PartnershipCovenant MarriageLimitation on Adoption
22. If someone issues a marriage license to persons of the same sex, (s)he will be guilty of a misdemeanor.
23. Found constitutional in Li v. Oregon, 110 P.3d 91 (Or. 2005).
24. An attorney general opinion found that Tenn. Code Ann. § 36-3-113 precludes recognition of same-sex domestic partnerships or civil unions granted by another state or foreign jurisdiction for the purpose of bestowing the rights, benefits and privileges of marriage in Tennessee, OAG 04-066 (4/19/04).
25. An attorney general opinion found that Tenn. Code Ann. § 36-3-113 precludes recognition of same-sex domestic partnerships or civil unions granted by another state or foreign jurisdiction for the purpose of bestowing the rights, benefits and privileges of marriage in Tennessee, OAG 04-066 (4/19/04).
26. Texas Community Property statute expressly prohibits the benefits the statute provides to marriage to be granted to civil union or other same-sex relationships. Tex. Fam. Code § 4.301.
NORTH DAKOTAProhibited N.D. Cent. Code § 14-03-01N.D. Const. Art. XI § 28N.D. Cent. Code § 14-03-08Unrecognized N.D. Const. Art. XI § 28Unrecognized N.D. Const. Art. XI § 28  
OHIOProhibited Ohio Rev. Code Ann. § 3101.01(A)Ohio Const. Art. XV, § 11Ohio Rev. Code Ann. §3101.01(C)Unrecognized Ohio Const. Art. XV, § 11Unrecognized Ohio Const. Art. XV, § 11  
OKLAHOMAProhibited Ok. Stat. tit. 43, § 3(A)Ok. Const. Art II, § 3522Ok. Stat. tit. 43, § 3.1; Ok. Const. Art. II, § 35Unrecognized Ok. Const. Art. II, § 35Unrecognized Ok. Const. Art. II, § 35  
OREGONProhibited Or. Rev. Stat. § 106.01023Or. Const. Art. XV, § 5a     
PENNSYLVANIAProhibited Pa. Cons. Stat. Ann. tit. 23, § 1102; 1704 Pa. Const. Stat. Ann. tit. 23, § 1704    
RHODE ISLAND       
SOUTH CAROLINAProhibited S.C. Code Ann. §§ 20-1-10(B), (C), 20-1-15      
SOUTH DAKOTAProhibited S.D. Cod. Laws § 25-1-1S.D. Const Art. XXI § 9S.D. Cod. Laws §25-1-38Not valid or recognized S.D. Const Art. XXI § 9Not valid or recognized S.D. Const Art. XXI § 9  
TENNESSEEProhibited Tenn. Code Ann. §§ 36-3-113(a), (b), (c)Tenn. Const. Art. XI § 18Tenn. Code Ann. § 36-3-113(d)Prohibited? 24Prohibited? 25  
TEXASProhibited Tex. Fam. Code § 2.001Tex. Const. Art. 1, § 32Tex. Fam. Code §6.204(C)Prohibited Tex. Const. Art. I § 32; Tex. Fam. Code 6.204(b)26Prohibited Tex. Const. Art. I § 32  
StateSame sex marriage discussed by StatuteSame sex marriage prohibited by ConstitutionRecognize only marriage from other states consistent with its lawsCivil UnionDomestic PartnershipCovenant MarriageLimitation on Adoption
27. Under Utah law, a person may not adopt a child if they are in a cohabitating relationship but are unmarried. Utah Code Ann. §78-30-1(3)(b) (2005).
UTAHProhibited Utah Code Ann. § 30-1-2(5)Utah Const. Art. 1, § 29(1)Utah Code Ann. §§ 30-1-4, 30-1-4.1Not recognized or given substantially same effect as marriage Utah Const. Art. 1, § 29Not recognized or given substantially same effect as marriage Utah Const. Art. 1, § 29 Utah Code Ann. §78-30-1(3)(b)27
VERMONTProhibited Vt. Stat. Ann. tit. 15, §§ 8, 1201(4)  Vt. Stat. Ann. tit. 15, § 1201(2), 1202  Permitted Vt. Stat. Ann. tit. 15A §1-102(b)
VIRGINIAProhibited Va. Code Ann. § 20-45.2Va. Const. Art. I, § 15AVa. Code Ann. § 20-45.2Prohibited Va. Code Ann. § 20-45.3, Va. Const. Art. I, § 15AProhibited Va. Code Ann. § 20-45.3, Va. Const. Art. I, § 15A  
WASHINGTONProhibited Wash. Rev. Code §§ 26.04.010(1), 26.04.020(1) (c) Wash. Rev. Code § 26.04.020(3)    
WEST VIRGINIAProhibited W.Va. Stat. §§ 48-2-104(a), (c) W.Va. Stat. § 48-2-603    
WISCONSINProhibited Wis. Stat. §§ 765.001, 765.01,Wis. Const. Art. XIII, § 13Wis. Stat. § 765.04Not valid or recognized Wis. Const. Art. XIII, § 13Not valid or recognized Wis. Const. Art. XIII, § 13  
WYOMINGProhibited Wyo. Stat. Ann. § 20-1-101      
StateSame sex marriage discussed by StatuteSame sex marriage prohibited by ConstitutionRecognize only marriage from other states consistent with its lawsCivil UnionDomestic PartnershipCovenant MarriageLimitation on Adoption
UNITED STATESDefined 1 U.S.C. § 7 28 U.S.C. § 1738C    
PUERTO RICOProhibited Puerto Rico Code Ann. tit. 31, § 221      

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