Same-Sex Marriages: Legal Issues

Alison M. Smith
Legislative Attorney

The recognition of same-sex marriages generates debate on both the federal and state levels. State legislators in Vermont and New Hampshire have legalized same-sex marriages. At the same time, federal and state courts are beginning to address the validity of statutory and constitutional provisions limiting marriage to heterosexual couples. State courts in New Jersey, Massachusetts, California, Connecticut, and Iowa have held that denying gay and lesbian couples the right to marry violates their state constitution. Some state courts have also found that domestic partnership/civil union laws are not the constitutional equivalent of civil marriage. These variations raise questions concerning the validity of such unions outside the contracted jurisdiction and have bearing on the distribution of federal benefits. 

Questions regarding same-sex marriages figure prominently in California. After the state supreme court's decision finding that denying same-sex couples the right to marry violated the state constitution, voters approved a constitutional amendment ("Proposition 8") limiting the validity and recognition of "marriages" to heterosexual couples. Subsequent court challenges ensued. In Strauss v. Horton (207 P.3d 48 (CA 2009)), the California Supreme Court found that Proposition 8 is a properly enacted limited constitutional amendment. However, the court found that the amendment applies only prospectively, and does not affect the estimated 18,000 same-sex marriages that occurred prior to the amendment's passage. Proposition 8 opponents subsequently challenged the amendment on constitutional grounds. On August 4, 2010, a federal court judge in the Northern District of California found that Proposition 8 violates both the equal protection and due process clauses of the Fourteenth Amendment. In Perry v. Schwarzenegger (2010 WL 3025614 (N.D. Ca. August 4, 2010)), the court found that the federal constitutional right to marry applies equally to same-sex couples and that Proposition 8 is not rationally related to any legitimate government purpose. This is the first time a federal court has recognized such a right. 

Currently, federal law does not recognize same-sex marriages. The Defense of Marriage Act (DOMA), P.L. 104-199, prohibits federal recognition of same-sex marriages and allows individual states to refuse to recognize such marriages performed in other states. Section 3 of DOMA requires that marriage, for purposes of federal benefit programs, must be defined as the union of one man and one woman. As federal agencies grapple with the interplay of DOMA and the distribution of federal marriage-based benefits, lower courts are beginning to address the DOMA's constitutionality. On July 8, 2010, a U.S. District Court in Massachusetts found section 3 of DOMA unconstitutional in two companion cases (Gill v. Office of Personnel Management, 699 F.Supp. 2d 374 (D. Mass. 2010) and Massachusetts v. U.S. Dept. of Health and Human Services, 698 F. Supp. 2d 234 (D. Mass. 2010)) brought by same-sex couples married in Massachusetts. At issue were a myriad of benefits. In one case, the court found that DOMA exceeded Congress's power under the Spending Clause and violated the Tenth Amendment. In the other case, the court held that Congress's goal of preserving the status quo did not bear a rational relationship to DOMA and thus, violated the Fifth Amendment's Equal Protection Clause. It is unclear whether the government will appeal either of these cases. 

This report discusses DOMA and legal challenges to it. It reviews legal principles applied to determine the validity of a marriage contracted in another state and surveys the various approaches employed by states to enable or to prevent same-sex marriage. This report also examines House and Senate resolutions introduced in previous Congresses proposing a constitutional amendment and limiting federal courts' jurisdiction to hear or determine any question pertaining to the interpretation of DOMA.


Date of Report: August 18, 2010
Number of Pages: 32
Order Number: RL31994
Price: $29.95

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