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Same-Sex Marriage Laws

The laws governing same-sex marriage have shifted over the years. For years, individual marriage laws were up to the state, with some states — such as California and Massachusetts — allowing for gay marriage. However, after a Supreme Court ruling in 2015, same-sex marriage was legalized across the U.S.

Although gay marriage is legal in every state, each state has its own marriage laws, including residency requirements for marriage. If you have questions about the marriage laws in your state, it is recommended to contact a local family law attorney in a city near you for advice.

History of Same-Sex Marriage

Beginning in the 1960s, civil rights advocates sought to change laws denying homosexual couples from marriage and from enjoying the legal marriage rights that opposite-sex married couples are entitled to, including parenting rights and hospital visitation rights. Advocates worked to change public opinion on the matter, as well as to change the same-sex marriage laws surrounding civil unions.

DOMA and the Same-Sex Marriage Ban

Same-sex marriages were originally banned in 1996, as part of the Defense of Marriage Act — commonly known as DOMA. Two of the major points in this act were that the federal government could not make same-sex marriages legal on the state level and that marriages could only be between a man and a woman.

Perhaps the largest impact, though, was that the act gave states the power to ignore a lawful same-sex marriage if it was performed somewhere else. For example, if a couple was living in California and they decided to get married before moving to Texas, the law in Texas did not have to consider them an official couple. This drastically changed the way that they could do many things that heterosexual couples enjoyed, from making wills to applying for government benefits to both being listed on the birth certificate for a child.

Federal Involvement

Though the Federal Government does not set the laws at the state level, it has been involved in certain aspects of the same-sex marriage debate. Before becoming legal, filing federal tax forms with the IRS was complicated for a married couple who moved to a state where their marriage was not recognized, as married couples are allowed to file jointly.

To smooth this out, the federal government stated that gay couples could file their federal tax returns jointly, no matter where they were married or if the state in which they resided recognized that marriage.

When Was Same-Sex Marriage Legalized?

Massachusetts was the first U.S. state to legalize same-sex marriage, on May 17, 2004, as a result of the Supreme Court’s decision in Goodridge v. Department of Public Health. In a 4-3 ruling, the state court affirmed “the dignity and equality of all individuals” and noted that the state constitution forbade “the creation of second-class citizens.”

Massachusetts would be the first to legalize same-sex marriage, but other states and jurisdictions would soon follow suit. In 2011, New York allowed same-sex marriages under the Marriage Equality Act.

Some states, Nevada being the first to do so via a public ballot initiative in 2020, seek to enshrine the rights of same-sex couples to marry in their own state constitutions. Some other states took their own approach to couples marrying based on sexual orientation, by offering alternatives to civil marriage and same-sex marriage policies, including domestic partnerships and same-sex unions.

Other states, such as TexasSouth DakotaSouth Carolina, and Georgia, would not see same-sex weddings legalized until the Obergefell v. Hodges ruling, via the Supreme Court, in 2015.

What Was the Obergefell Decision?

The historic Supreme Court ruling in Obergefell v. Hodges, established that gay and lesbian couples have the fundamental right to marry, pointing to the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment. The ruling was 5-4 in favor, and was the result of the consolidation of six lower-court cases in state courts — from Michigan, Ohio, Kentucky, and Tennessee.

In effect, the Obergefell decision resulted in legalizing same-sex marriage in all 50 states — even those that had not legalized the practice already at the state level — as well as all U.S. territories.

The Obergefell decision resembled the reasoning (and the outcome, based on the predicates established by the Fourteenth Amendment) offered up in another landmark civil rights ruling, the 1967 case of Loving v. Virginia. In that case, the court ruled that laws denying the right of individuals to participate in an interracial marriage were unconstitutional.

Is Same-Sex Marriage Legal in All 50 States?

Yes. Following the Obergefell majority opinion handed down by the Supreme Court, same-sex marriage is afforded equal protections and legal status to opposite-sex marriage in all 50 states, as well as all United States territories.

Same-Sex Divorce: Is It Different From Traditional Divorce?

Same-sex couples can get married in all 50 states and these couples can also get divorced. The process for divorce is state-specific and each state has requirements for when and how a couple can get a divorce, including residency requirements, waiting periods, and no-fault divorce.

While same-sex divorces are treated similarly to opposite-sex divorces, there may be complications for gay couples who never formally married. For example, if a same-sex spouse was effectively married and living together for a decade or more — but not legally married due to a prohibition — and shared a child or children, during a divorce the courts may find that the non-biological parent is not entitled to any protections regarding custody.

The same could be said for prospective spousal support, alimony, or other payments that are commonly part of an opposite-sex marriage. Based on gay marriage bans against the legal status of opposite-sex couples having only been overturned in recent years, this means that many informal marriages, when dissolved, may not afford the same legal protections to participants.

Same-Sex Adoption and Common Struggles Same-Sex Couples Face

Same-sex married couples can still face some degree of discrimination when it comes to adoption, although a recent Supreme Court ruling legalized adoption for same-sex civil unions.

That being said, barriers remain for gay rights and adoption. At the state level, some jurisdictions allow for private foster or adoption agencies — most relevantly, faith-based agencies — to decide against placing children with married same-sex couples. Beyond this reality, same-sex partners adopting a child outside of the United States, bringing them to live with them in the U.S., can have their hopes dashed by the host country of the child.

Almost all of the countries comprising the African continent (barring South Africa), Asia and Eastern Europe do not have laws supporting the right of married gay and lesbian couples to petition for adoption. If you have questions about adoption overseas for same-sex partnerships, consult an experienced family law attorney about your options.

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