Overview

The recognition of same-sex marriages generates debate on both the federal and state levels. Either legislatively or judicially, same-sex marriage is legal in seven states. Other states allow civil unions or domestic partnerships, which grant all or part of state-level rights, benefits, and/or responsibilities of marriage. Some states have statutes or constitutional amendments limiting marriage to one man and one woman. These variations raise questions about the validity of such unions outside the contracted jurisdiction and have bearing on the distribution of federal benefits. 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. The 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. Massachusetts became the first state to legalize same-sex marriages on May 17, 2004, as a result of a November 2003 decision by the state's highest court that denying gay and lesbian couples the right to marry violated the state's constitution.1 Similarly, state supreme courts in New Jersey,2 California,3 Connecticut,4 and Iowa5 found that denying same-sex couples the right to marry violated their state constitutions. In addition, the California, Connecticut, and Iowa courts found that parallel statutory structures, including domestic partnerships and/or civil unions, were not the constitutional equivalent of civil marriage. However, in New Jersey, the court left open the option for the state legislature to provide a parallel statutory structure which would allow same-sex couples to enjoy the same rights, privileges, and burdens as married opposite-sex couples.6 While the aforementioned states legalized same-sex marriages judicially, on April 7, 2009, Vermont became the first state to legalize same-sex marriages legislatively. State legislators garnered a sufficient number of votes to override the governor's veto. Similarly, governors in Maine,7 New Hampshire, New York,8 and Washington9 signed bills legalizing same-sex marriages.

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