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 Constitution’s 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 Hawaii’s 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 unions—even 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
State	Same sex marriage discussed by Statute	Same sex marriage prohibited by Constitution	Recognize only marriage from other states consistent with its laws	Civil Union	Domestic Partnership	Covenant Marriage	Limitation 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).
ALABAMA	Prohibited Ala. Code § 30-1-19(b)	Ala. Const. Art. I § 36.03	Ala. Code § 30-1-19(e)
ALASKA	Prohibited Alaska Stat. §§ 25.05.011, 25.05.013	Alaska Const. Art. I, § 25	Alaska Stat. § 25.05.13		Not established by Statute, but employers must provide equal benefits ¹
ARIZONA	Prohibited Ariz. Rev. Stat. § 25-101		Ariz. Rev. Stat. § 25-112			Ariz. Rev. Stat §§ 25-901 to 902
ARKANSAS	Prohibited Ark. Code Ann. § 9-11-109	Ark. Const. Amend. 83, § 1	Ark. 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
CALIFORNIA	Prohibited Cal. Fam. Code § 300, 308.5²		Cal. Fam. Code §308		Established by Statute Cal. Fam. Code §§ 297, 297.5, 298, 298.5, 299
COLORADO	Prohibited Colo. Rev. Stat. § 14-2-104(1)(b)	Colo. Const. Art. II, §31	Colo. Rev. Stat. § 14-2-104(2)		Colo. Rev. Stat. §14-15-101 et seq.
CONNECTICUT	Not authorized ³		Not recognized by court decision ⁴	Conn. Gen. Stat. §§ 46b-38aa-38pp

State	Same sex marriage discussed by Statute	Same sex marriage prohibited by Constitution	Recognize only marriage from other states consistent with its laws	Civil Union	Domestic Partnership	Limitation on Adoption
5. In re Hart, 806 A.2d 1179 (Del. Fam. Ct. 2001) (holding that the same-sex life partner of a child’s 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).
DELAWARE	Prohibited 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 COLUMBIA	Prohibited by court decision ⁶		D.C. Code §46-405		D.C. Code §32-701 et seq.
FLORIDA	Prohibited Fla. Stat. § 741.212		Fla. Stat. §741.212			Prohibited, Fla. Stat. §63.042(3)⁷
GEORGIA	Prohibited Ga. Code Ann. § 19-3-3.1(a)	Ga. Const. Art 1, § 4	Ga. Code Ann. § 19-3-3.1(b)
HAWAII	Prohibited Haw. Rev. Stat. §§ 572-1	Haw. Const. Art. I, § 23⁸	Haw. Rev. Stat. §572-3	Solemnization permitted, but no legal effect —Haw. Rev. Stat. § 572-1.6
IDAHO	Prohibited Idaho Code § 32-201, 202, punishable, § 215		Idaho Code § 32-209
ILLINOIS	Prohibited 750 Ill. Comp. Stat. §§ 5/ 212(5); 5/213.1		750 Ill. Comp. Stat § 5/216			Permitted by court decision ⁹
INDIANA	Prohibited Ind. Code § 31-11-1-1(a)		Ind. Code § 31-11-1-1(b)			Permitted by court decision ¹⁰
IOWA	Prohibited Iowa Code. Ann. § 595-2(1)		Iowa Code Ann. § 595-20

State	Same sex marriage discussed by Statute	Same sex marriage prohibited by Constitution	Recognize only marriage from other states consistent with its laws	Civil Union	Domestic Partnership	Covenant Marriage	Limitation on Adoption
11. Maryland’s statute was recently declared unconstitutional in a trial court, Deane v. Conaway, No.: 24-C-04-005390 (Circuit Court for Baltimore City) aff’d 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.
KANSAS	Prohibited Kan. Rev. Stat. § 23-101(a)	Kan. Const. Art. 15, § 16	Kan. Rev. Stat. §23-115	Unrecognized — Kan. Const. Art. 15, § 16	Unrecognized — Kan. Const. Art. 15, § 16
KENTUCKY	Prohibited Ky. Rev. Stat. §§ 402.005; 402.020(1)(d)	Ky. Const. § 233a	Ky. Rev. Stat. §§ 402.040(2); 402.045	Unrecognized — Ky Const. § 233a	Unrecognized — Ky Const. § 233a
LOUISIANA	Prohibited La. Civ. Code Ann. Art. 86, 89	La. Const. Art XII, § 15	La. Civ. Code Ann. Art. 3520	Unrecognized — La. Const. Art. XII, § 15	Unrecognized — La. Const. Art. XII, § 15	La. Rev. Stat. § 9:272
MAINE	Prohibited Me. Rev. Stat. tit. 19-A § 650, 701		Me. Rev. Stat. tit. 19-A § 701		Me. Rev.Stat. tit. 22 § 2710
MARYLAND	Prohibited Md. Code Ann. Fam. Law § 2-201¹¹
MASSACHUSETTS	Permitted by Mass. S.Ct decision ¹²		Ann. Laws Mass. ch. 207 §10-12¹³
MICHIGAN	Prohibited Mich. Comp. Laws § 551.1,	Mich. Const. Art. 1, § 25	Mich. Comp. Laws §§ 551.271, 551.272	Unrecognized — Mich. Const. Art. 1, § 25	Unrecognized — Mich. Const. Art. 1, § 25		Mich. Comp. Laws § 710.24 per Att’y Gen. Opinion ¹⁴
MINNESOTA	Prohibited Minn. Stat. §§ 517.01, 517.03(a)(4),		Minn. Stat. § 517.03(b)
MISSISSIPPI	Prohibited Miss. Code Ann. § 93-1-1(2)	Miss. Const. Ann. Art. 14, § 263A	Miss. Code. Ann. § 93-1-3; Miss. Const. Ann. Art. 14, § 263A				Miss. Code Ann. §93-17-3(5)

State	Same sex marriage discussed by Statute	Same sex marriage prohibited by Constitution	Recognize only marriage from other states consistent with its laws	Civil Union	Domestic Partnership	Limitation 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 child’s biological mother cannot adopt the child without a relinquishment of the biological mother’s 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), aff’d without opinion in 707 A.2d 151 (1998).
19. The New Jersey Supreme Court found that the statute does not violate New Jersey’s constitution. Lewis v. Harris, 875 A.2d 259 (2005).
20. The New York Court of Appeals Third Division affirmed the trial court’s 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 court’s 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).
MISSOURI	Prohibited Mo. Rev. Stat. § 451.022(3)	Mo. Const. Art 1, § 33	Mo. Rev. Stat. § 451.022(4)
MONTANA	Prohibited 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, § 29¹⁶	Neb. Const. Art 1, § 29	Invalid, unrecognized Neb. Const. Art. I, § 29	Invalid, unrecognized Neb. Const. Art. I, § 29	Prohibited by Court decision ¹⁷
NEVADA	Prohibited Nev. Rev. Stat. § 122.020	Nev. Const. Art. 1, § 21
NEW HAMPSHIRE	Prohibited N.H. Rev. Stat. §§ 457:1, 451:2		N.H. Rev. Stat. § 457:3
NEW JERSEY	Prohibited N.J. Stat. § 37:1-1^18,19			Authorized N.J. Stat. §§ 37:1-28 to 34	Authorized N.J. Stat. §§ 26:8A-1 to A13
NEW MEXICO
NEW YORK	Prohibited N.Y. Dom. Rel. § 6²⁰	Hernandez v. Robles, 805 N.Y.S.2d 354 (N.Y. App. Div. 2005)²¹				N.Y. Dom. Rel. § 110
NORTH CAROLINA	Prohibited N.C. Gen. Stat. § 51-1.2		N.C. Gen. Stat. §51-1.2

State	Same sex marriage discussed by Statute	Same sex marriage prohibited by Constitution	Recognize only marriage from other states consistent with its laws	Civil Union	Domestic Partnership
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 DAKOTA	Prohibited N.D. Cent. Code § 14-03-01	N.D. Const. Art. XI § 28	N.D. Cent. Code § 14-03-08	Unrecognized — N.D. Const. Art. XI § 28	Unrecognized — N.D. Const. Art. XI § 28
OHIO	Prohibited Ohio Rev. Code Ann. § 3101.01(A)	Ohio Const. Art. XV, § 11	Ohio Rev. Code Ann. §3101.01(C)	Unrecognized — Ohio Const. Art. XV, § 11	Unrecognized — Ohio Const. Art. XV, § 11
OKLAHOMA	Prohibited Ok. Stat. tit. 43, § 3(A)	Ok. Const. Art II, § 35²²	Ok. Stat. tit. 43, § 3.1; Ok. Const. Art. II, § 35	Unrecognized — Ok. Const. Art. II, § 35	Unrecognized — Ok. Const. Art. II, § 35
OREGON	Prohibited Or. Rev. Stat. § 106.010²³	Or. Const. Art. XV, § 5a
PENNSYLVANIA	Prohibited Pa. Cons. Stat. Ann. tit. 23, § 1102; 1704		Pa. Const. Stat. Ann. tit. 23, § 1704
RHODE ISLAND
SOUTH CAROLINA	Prohibited S.C. Code Ann. §§ 20-1-10(B), (C), 20-1-15
SOUTH DAKOTA	Prohibited S.D. Cod. Laws § 25-1-1	S.D. Const Art. XXI § 9	S.D. Cod. Laws §25-1-38	Not valid or recognized — S.D. Const Art. XXI § 9	Not valid or recognized — S.D. Const Art. XXI § 9
TENNESSEE	Prohibited Tenn. Code Ann. §§ 36-3-113(a), (b), (c)	Tenn. Const. Art. XI § 18	Tenn. Code Ann. § 36-3-113(d)	Prohibited? ²⁴	Prohibited? ²⁵
TEXAS	Prohibited Tex. Fam. Code § 2.001	Tex. Const. Art. 1, § 32	Tex. Fam. Code §6.204(C)	Prohibited — Tex. Const. Art. I § 32; Tex. Fam. Code 6.204(b)²⁶	Prohibited — Tex. Const. Art. I § 32

State	Same sex marriage discussed by Statute	Same sex marriage prohibited by Constitution	Recognize only marriage from other states consistent with its laws	Civil Union	Domestic Partnership	Limitation 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).
UTAH	Prohibited Utah Code Ann. § 30-1-2(5)	Utah Const. Art. 1, § 29(1)	Utah Code Ann. §§ 30-1-4, 30-1-4.1	Not recognized or given substantially same effect as marriage Utah Const. Art. 1, § 29	Not recognized or given substantially same effect as marriage Utah Const. Art. 1, § 29	Utah Code Ann. §78-30-1(3)(b)²⁷
VERMONT	Prohibited 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)
VIRGINIA	Prohibited Va. Code Ann. § 20-45.2	Va. Const. Art. I, § 15A	Va. Code Ann. § 20-45.2	Prohibited — Va. Code Ann. § 20-45.3, Va. Const. Art. I, § 15A	Prohibited — Va. Code Ann. § 20-45.3, Va. Const. Art. I, § 15A
WASHINGTON	Prohibited Wash. Rev. Code §§ 26.04.010(1), 26.04.020(1) (c)		Wash. Rev. Code § 26.04.020(3)
WEST VIRGINIA	Prohibited W.Va. Stat. §§ 48-2-104(a), (c)		W.Va. Stat. § 48-2-603
WISCONSIN	Prohibited Wis. Stat. §§ 765.001, 765.01,	Wis. Const. Art. XIII, § 13	Wis. Stat. § 765.04	Not valid or recognized — Wis. Const. Art. XIII, § 13	Not valid or recognized — Wis. Const. Art. XIII, § 13
WYOMING	Prohibited Wyo. Stat. Ann. § 20-1-101