Connecticut Recognizes Right of Same-Sex Marriage

On Friday, October 10, 2008, the Connecticut Supreme Court held in the case of Kerrigan & Mock v. Dep't of Public Health, that same-sex couples have the right under Connecticut state law to enter into marriage.

The Supreme Court decision overturns the ruling of a lower court which had held that state-sanctioned civil unions offered the same rights and benefits to same-sex couples. The decision of the Supreme Court, Connecticut's highest court, cannot be appealed, and will go into effect on October 28, 2008.

By way of history, the Connecticut legislature enacted a statute in 2005 creating civil unions similar to those created in Vermont, New Hampshire and New Jersey. In 2007, when a similar bill came before the legislature which would provide full marriage equality, the legislature tabled it. Meanwhile, eight same-sex couples had brought a lawsuit against the State of Connecticut after each had attempted to apply for a marriage license in the town of Madison, and was denied. The plaintiffs argued that civil unions were constitutionally inadequate, and provided for the unequal treatment of gay and lesbian citizens.

Justice Richard Palmer, who wrote the majority opinion for the court, wrote that the "segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm," in light of "the history of pernicious discrimination faced by gay men and lesbians, and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody."

Connecticut is now the third state in the nation to recognize the right of same-sex couples to marry, following Massachusetts in 2004 and California in May of 2008. Just like the states of Massachusetts and California, the Connecticut decision only allows gay couples the state benefits of marriage. The Defense of Marriage Act, which was passed in 1996, continues to deny gay couples federal recognition of their marriages, including rights and benefits in connection with Social Security, taxation, immigration and others.

To read the opinion of the justices of the Connecticut Supreme Court in Kerrigan & Mock v. Dep't of Public Health, click here.

To view an interactive map of states that permit civil unions and same-sex marriage, click here.

The above photograph is credited to Shana Sureck for The New York Times.

DOJ Ruling Undercuts DOMA: Children of State-Recognized Same-Sex Relationships May Collect Federal Benefits

The federal Defense of Marriage Act, passed in 1996, prohibits the federal government from extending (or forcing states to extend) rights or benefits to same-sex couples and their children, even if those relationships enjoy marriage, domestic partner, or civil union status under state law.

However, as states across the country begin to affirm the rights of same-sex couples and their children - including access to the institutions of marriage, divorce, spousal benefits, and child support and custody - the justifications and practical workability of DOMA is being directly challenged. Notably, a recent ruling issued by the US Department of Justice (DOJ) instructed the Social Security Administration (SSA) that it must extend federal benefits to the non-biological child of a woman in a Vermont civil union.

In this ruling, the DOJ considered the case of Monique and Karen, who had obtained a civil union in Vermont in 2002. In 2003, Monique gave birth to a little boy named Elijah. Karen did not formally adopt Elijah because, under Vermont's civil union statutory scheme, he was considered a child of both Monique and Karen. The same year Karen, Elijah's non-biological parent, began receiving social security disability benefits. Then and now, DOMA prohibited general recognition of a legal parent-child relationship between Elijah and Karen.

Under existing SSA regulation, children of adults who receive benefits have traditionally been entitled to benefits in their own right. Previous SSA regulations define a "natural child" based on "the law on inheritance rights that the State courts would use to decide whether [the individual] could inherit a child's share of the insured's personal property if the insured were to die without a will". 20 CFR §404.355(b)(1)(2007). In other words, if an individual would be considered the child of a benefits recipient under his own state's inheritance laws, the individual would be considered an eligible child for federal social security benefits purposes.

In this case, the SSA was in a quandry. Although Elijah was a "natural child" of Karen under Vermont law, the parent-child relationship was derived from a same-sex civil union statute that the federal government was expressly prohibited from recognizing under DOMA. The SSA was unclear whether it could distribute federal benefits to Elijah, who was only related to Karen by way of her same-sex civil union to Monique. The DOJ decision deftly circumvented DOMA, and directed the SSA to distribute federal benefits to Elijah since Elijah was considered Karen's "natural child" under Vermont's intestacy statutes.

The Elijah ruling is signifigant because the SSA was instructed to treat Elijah as Karen's son even though he was related to Karen under Vermont's intestacy laws only by way of Karen's same-sex civil union to Monique.

The full impact of the DOJ ruling has not been adequately reported or commented on. After all, it is only a small crack in the expansive and largely untested Defense of Marriage Act, which denies thousands of federal rights and benefits to same-sex families and children. However, the ruling seems to indicate that federal benefits that are granted according to state definitions of family and parentage (including states that recognize same-sex marriages and unions) will not be denied despite the fact that DOMA specifically prohibits federal recognition of those same-sex relationships.

It is important to note that the Elijah decision will not provide benefits for non-biological children of same-sex parents in states that refuse to recognize the marriage or civil union of the parents. For example, even Elijah's benefits would terminate if Karen and Monique were to move their family to a state that did not recognized their union. Same-sex parents of children can avoid this result by speaking with an attorney and making sure that both spouses have legally adopted their children and have created a flexible estate plan to fill the gaps created by DOMA and similar discriminatory state laws.

The full text of the opinion can be found on-line at http://www.usdoj.gov/olc/2007/saadomaopinion10-16-07final.pdf.

Civil Unions. What They Are; What They Aren't.

On January 1, 2008, New Hampshire became the fourth state in the nation to grant civil unions to same-sex couples. Currently, civil unions are recognized in Vermont, New Jersey, and Connecticut, while both California and Oregon offer Domestic Partnership Laws, which offer substantially similar rights and protections.

What is a Civil Union? Civil union laws attempt to create a legal status parallel to that of marriage. The New Hampshire legislation creating civil unions is entitled, "An Act Permitting Same Gender Couples to Enter Civil Unions and Have the Same Rights, Responsibilities, and Obligations as Married Couples". The idea is to provide separate-but-equal rights, protections, and obligations for both same and opposite-sex couples.

No Fixed Legal Definition. Marriage creates a familial relationship between two persons which is recognized across cultures, religions, and around the world. The institution of marriage is ubiquitous and needs little explanation. In contrast, civil unions exist in only a handful of places around the world, are not imbued with universal meaning, and have no fixed legal definition. In other words, the definition of a civil union is whatever the granting state's legislature decides it is: there is no guarantee that State A will grant the same rights and benefits to a same-sex civil union as State B. And while all states have a framework for marriage creation and dissolution, not all states have a framework in place for civil unions.

Civil Unions Provide Some Tangible Benefits. Civil union laws dramatically underestimate the social and cultural significance of the institution of marriage. Even a civil union law which provides all the economic and legal rights and benefits of a marriage still deprives same-sex couples of the rich social and cultural benefits, as well as dignity and security, attached to the word 'marriage'. For an eloquent discussion on the intangible benefits associated with marriage, read the Massachusetts Supreme Judicial Court's opinion in Goodridge v. Dep't of Public Health.

Civil Unions Provide only State Rights and Benefits. A civil union provides only some of the state rights and benefits granted to married persons, and do not confer over 1,000 rights and benefits conferred by the federal government. And while the 1996 Federal Defense of Marriage Act (DOMA) currently denies federal recognition of same-sex marriage, the likely repeal of DOMA will entitle same-sex married couples to the full spectrum of federal rights and privileges. As presently drafted, the civil union laws of Connecticut and Vermont grant only state-level rights, and do not contemplate the provision of any federal rights and privileges.

Civil Unions Invite Unequal Treatment. Same-sex marriages originating in Massachusetts are quickly spreading throughout the country. As same-sex marriages cross state lines, new states are being challenged to apply their existing marital structure to these couples, including laws relating to inheritance, divorce, adoption, spousal and child support, access to health and financial records, etc. Without a historical and legal tradition of recognition, state courts and legislatures may not be as compelled to extend reciprocal rights to civil unions. Same-sex married couples may be in a better position to challenge the federal government's unequal treatment of their marriage compared with opposite-sex marriages. Civil unions, as a separate legal institution, are susceptible to unequal treatment.

A Civil Union is Not Marriage. Although civil unions represent a momentous practical step forward for same-sex couples living in the states that grant them, a civil union is a political compromise. A civil union is not marriage.

(Given the current patchwork of various state and federal laws relative to the recognition of same-sex relationships, couples considering entering into a civil union or a marriage should consult with an attorney first, as a change in status could effect property ownership, inheritance, immigration status, adoption rights, military benefits, etc.)