Gay marriage refers to the legally recognized marriage between same-sex persons. In the United States, same-sex marriage is legal in all 50 states and the District of Columbia. Unfortunately, while legally recognized, gay spouses may still experience discrimination exercising their legal rights.

What Recent Legal Changes have Occurred in the U.S. for Gay Marriage?

In 1996, Congress enacted the Defense of Marriage Act, (DOMA) that provided only one man and one woman could be legally married as it pertained to federal benefits for married persons in the U.S.

The first state to legalize gay marriage after DOMA was Massachusetts in 2003. Between 2008-2009, five states including California, Connecticut, Iowa, New Hampshire, Vermont, and the District of Columbia legalized gay marriage.

In 2013, the U.S. Supreme Court struck down part of the DOMA statute in the case of U.S. v. Windsor. In that case, the court held that it was in violation of the U.S. Constitution, specifically Due Process and Equal Protection clauses, by limiting marriage benefits to only heterosexual couples.

This removed all federal barriers to same-sex couples who were already married in a state that legalized same-sex marriage. After this case, several states legalized gay marriage, leaving only 20 that did not until after a ruling in 2015.

In 2015, the U.S. Supreme Court made a landmark decision in favor of gay marriage when it decided the case of Obergefell v. Hodges. Basically, the court ruled that states who prohibited same-sex persons from obtaining a marriage license violated the U.S. Constitutional provisions of Due Process and Equal Protection.

Thus, all 50 states and the District of Columbia must permit same-sex persons to apply for marriage licenses and not discriminate against gay and lesbian persons who are seeking marriage in the state. Additionally, same-sex persons married in one state who then move to another must have their legal marriage recognized by the second state in the same way that heterosexual couples enjoy.

What Legal Benefits or Privileges are Afforded to Same-Sex Spouses?

Same-sex couples enjoy the same benefits and privileges as heterosexual married couples including:

  1. Property Rights: depending on the state property laws, you may be entitled to an equitable share of your spouse’s property that is acquired during your marriage. 
    1. These rights may provide you with an equitable share if a divorce occurs.
  2. Parenting Rights: Most states recognize same-sex couples right to adopt children. If a child is born to one parent during the marriage, then the other spouse may have legal parenting rights to that child as well.
  3. Divorce Rights: Should the marriage not work out, same-sex spouses are entitled to the same access and protections as heterosexual couples in the divorce process. 
    1. Because the marriage is a legal contract, dissolving the marriage requires going through a legal process to separate property and decide child custody issues if applicable.
  4. Insurance Coverage: If you or your spouse has health insurance coverage that extends to a spouse, you are entitled to that coverage as a same-sex couple. If you are obtaining auto, life, or homeowner’s insurance, you will be entitled to include your spouse.
  5. Tax Benefits: Married couples, including same-sex couples, filing jointly have the right to take a larger standard deduction than single filers along with other tax relief options.
  6. Inheritance Rights: As a surviving spouse, you will be able to inherit your spouse’s estate even if you do not have a proper will.
  7. Marital Privilege in Court: If you are called to testify against your spouse in court, you may be able to invoke a marital privilege and not testify.
  8. Medical Power of Attorney: As the legal spouse, you will be able to make important medical decisions for your spouse in an emergency or if your spouse becomes incapacitated.

One of the main motivators of gay marriage equality was the desire to share the same right as heterosexual couples. Below are alternatives to same-sex marriage, but as you can see it they don’t always afford the same rights or benefits (legal or personal).

Are there Alternatives to Gay Marriage?

Yes. The following is a list of other types of unions:

  • Cohabitation: afford no additional rights except for the fact that the couple lives together. They do not have any property rights, so in the event one passed away the other would not inherit. 
    • Most cohabitation agreements will list out the distribution of costs (like rent) or what will happen in the event that cohabitation ends.
    • This is most likely a roommate/girlfriend/boyfriend situation and does not afford any special rights or privileges. 
  • Common Law Marriage: not recognized in most states, but if your state recognizes this union, no formal marriage application is necessary in order to be lawfully married. A valid common law marriage has all the rights of a “typical” marriage. 
    • Many states will recognize common law marriages if they occurred before a certain date, like before January 1, 1999.
    • States that do not recognize common law marriages often recognize valid common law marriages that were formed before the State banned it.
      • For example, Georgia does not recognize common law marriage, but a couple from Colorado with a common law marriage formed before 1997 (when Georgia banned it) would be recognized as a valid marriage.
  • Civil Unions: alternative legal union options in places where the word marriage is not used or in lieu of marriage with certain legal protections and benefits.
    • Many states created civil unions to appease groups that demanded marriage equality, however civil unions did not always give the same benefits. Since civil unions are not recognized by the federal government, couples would often lose out on federal benefits like social security.  
    • Due to the legalization of same-sex marriage, many states will allow same-sex civil unions to petition to become marriages.
      • Five states, Connecticut, Delaware, New Hampshire, Rhode Island, and Vermont have converted civil unions into marriages after the legalization of same-sex marriage.
  • Domestic Partnerships: similar to civil unions offering legal benefits and protections without marriage. However they do not offer the exact same benefits as marriage. For example, upon death domestic partners inherit their partner’s assets after being taxed (married couples are not taxed).
    • The requirements for domestic partnership varies from state to state. Typically, they require that the domestic partners live together and intend to continue to cohabitate. 
    • Some states will limit who can apply for a domestic partnership. For example, CA will offer domestic partnership for same-sex couples or heterosexual couples (if one member is at least 62 years-old).

Are Divorces the Same for Same-Sex Spouses?

Yes; there is no difference between heterosexual divorce and same-sex divorce. If your state requires legal grounds for a divorce to be granted, then your divorce will require that as well. Common divorce grounds include irreconcilable differences, adultery, abuse, imprisonment, etc.

Same-sex divorce will also face the same parental rights and custody issues as heterosexual divorce. However, the actual application of it can be difficult to establish. Issues like, which parent is on the birth certificate or which parent is the biological parent (if it applies) can raise concerns depending on where you live.

It’s important to consult a lawyer if you are going through a same-sex divorce and have concerns over your parental rights for your children.

Do I Need to Consult a Lawyer about My Rights Regarding Gay Marriage?

A family lawyer can assist you in understanding your rights and obligations of a legal marriage. They can also assist with divorce and custody disputes if your marriage does not work out.

If you believe you have been discriminated against due to your same-sex status, a civil rights lawyer may be able to help you with understanding your rights and filing a lawsuit if necessary.