Same-sex Marriage Laws

Same-sex marriage refers to the legally recognized marriage of two people who identify as the same sex, such as a man marrying a man or a woman marrying a woman. At first, same-sex marriage was legal only in Massachusetts and Oregon. But that has changed. Same-sex marriage is now fully legal in all 50 states. In fact, two people of the same sex have a right to get married anywhere in the U.S.

Is Same-Sex Marriage Legal in the United States?

It was in June of 2015 that the United States Supreme Court ruled that same-sex marriage is a right in every state in the U.S. Currently, same-sex marriage is legal in all fifty states and Washington, D.C.

In 1996, the federal Defense of Marriage Act (DOMA) was enacted by the U.S. Congress. The Defense of Marriage Act proclaimed that only one man and one woman could legally marry. Additionally, DOMA granted states the right to refuse to recognize same-sex marriages that were performed in other states. This particular provision of DOMA was ruled unconstitutional by the U.S. Supreme Court in the cases of United States v. Windsor in 2013 and Obergefell v. Hodges in 2015.

Although the DOMA did not prohibit states from allowing same-sex marriages, it did not obligate them to recognize same-sex marriages from other states that did recognize same-sex marriage or allow them.

In 2013, the United State Supreme Court ruled that DOMA violated the U.S. Constitution, and same-sex married partners were entitled to the same rights and legal protections, including federal benefits, as heterosexual married partners. Prior to the striking down of DOMA, the states of Massachusetts, California, Connecticut, Iowa, New Hampshire, Vermont, and the District of Columbia had legalized same-sex marriage.

Once DOMA was ruled unconstitutional, all federal barriers to same-sex marriage were removed for those who were already married in states that had already legalized same-sex marriage. Additionally, in 2015, the Supreme Court ruled that states prohibiting same-sex couples from obtaining marriage licenses were in violation of the U.S. Constitution’s provisions of due process and equal protection.

As it stands now, all fifty states and the District of Columbia must permit same-sex couples to apply for marriage licenses, and they must not discriminate against those seeking marriage in the state. Further, same-sex married couples who move from one state to another must have their legal marriage recognized as fully legal by any state to which they move.

This is the same right that heterosexual married couples enjoy. However, although same-sex marriages are legally recognized, same-sex spouses may still experience discrimination when exercising their legal right to marry.

What Rights Come with Same-Sex Marriage?

Same-sex married couples have the same legal rights, protections, and benefits as those in a heterosexual marriage. Some examples of these rights and benefits include the following:

• Property Rights: Property rights depend in part on the state in which a person lives when they are married and, importantly, when they separate or divorce. An example of property rights is the fact that a married person might be entitled to an equitable share of their spouse’s property that is acquired over the course of their marriage in a state that has an equitable distribution system of the property division upon divorce. In a community property state, spouses own equal shares of property acquired during the marriage, except for gifts to one of them and inheritances.
  • Estate planning rights are included in property rights and also depend on the law of the state in which a couple lives at the time of the death of either one;
• Tax Benefits: Among the tax benefits of marriage is the right to a larger standard deduction when filing jointly as opposed to filing separately. Of course, married couples can file jointly. People who are not married do not have this option;
• Power of Attorney and Medical Power of Attorney: In some emergency medical situations, a spouse has the right to make emergency medical decisions on behalf of their spouse if the spouse becomes incapacitated. This also includes the right to enter into contracts, negotiate, and settle matters as if one spouse were the other spouse. However, a person can always grant a power of attorney to another person who is not their spouse;
• Insurance Coverage: Life insurance, health insurance, and other benefits provided by employers may be extended to a person’s spouse;
• Divorce and Parenting Rights: Most states recognize the right of married same-sex couples to adopt children. Additionally, if a child is born to one parent during the marriage, the other parent may have legal parental rights with respect to that child.
  • Same-sex marriages are also entitled to the same divorce rights and process as heterosexual couples, should the marriage need to be dissolved;
• Spousal Testimony Privilege: Should the spouse in a same-sex marriage be called to testify against their spouse in court, they may be able to invoke the marital privilege in order to avoid testifying without being held in contempt of court;
• Immigration: A same-sex fiance or fiancee may be able to gain legal entry to the U.S. for the purpose of getting married. When a same-sex spouse applies for temporary or permanent resident status or for citizenship on the basis of marriage, they should have the same right as a heterosexual spouse.

Other rights include access to domestic relations laws, workers’ compensation, and inheritance rights.

It is also important to keep in mind that same-sex couples who are married have the same liabilities that every other married couple has. So, one spouse can be responsible for paying the debts incurred by the other.

Do I Have to Get Divorced If I Want to End My Same-Sex Marriage?

Of course, when two people get married, if they want to disengage their rights, assets, and liabilities, they must get a legal separation or a divorce. In the course of a divorce, the spouses have to resolve all issues involved in dividing up their property. In a community property state, every item of property must be characterized as the separate property of one of the spouses or as community property that belongs to both of them equally.

In a common law state in which marital property is divided fairly and equitably, a judge has to take a number of factors into account to determine if the property is separate or marital and, if it is marital, how to divide it equitably.

A court may order one spouse to pay spousal support to the other. Any debts the couple has must be divided up between the spouses for eventual repayment also. If the couple has children, then they must resolve issues of child custody, visitation, and child support.

So, all of the possible complications of legal separation or divorce apply to same-sex marriage just as they do to heterosexual marriage.

Do I Need the Help of a Lawyer for My Same-Sex Marriage Issue?

Same-sex marriage has been legalized across the United States, and the people who enter into them are entitled to the exact same rights, privileges, and protections to which people in heterosexual marriages are entitled.

Still, those who are in a same-sex marriage sometimes face discrimination. Further, there are differences among the states with respect to the extent of their recognition of same-sex marriages and the rights of same-sex couples.

If you face any issues regarding same-sex marriage laws, you should consult with a skilled and knowledgeable family attorney in order to understand your rights and what protections you are afforded. An experienced family attorney can also assist in divorce and custody disputes if needed.

If you have been discriminated against because of your same-sex marriage, a civil rights attorney may be able to help you take action, understand your rights and options, and represent you in court as necessary. It is important that you find someone to advocate for your federally granted rights.