Same-Sex Marriage, Civil Unions, and Domestic Partnerships

The U.S. Supreme Court extended the right of marriage to same-sex couples in 2015. At that time, only a few states allowed same-sex marriage. Other states offered legal recognition through civil unions and domestic partnerships. This changed with the Court's decision in Obergefell v. Hodges.


Before Obergefell, same-sex couples could marry in some states. But other states refused to recognize their union. In Obergefell, the Court ruled that same-sex couples have a constitutional right to marry. The Due Process Clause and the Equal Protection Clause of the 14th Amendment guarantee this right. This decision gave uniformity in jurisdictions across the country.

This article explores marriage equality and a few marriage alternatives. These alternatives include civil unions and domestic partnerships.

Mariage Equality

To many people, marriage is a fundamental building block of modern society. Marriage is the foundation for building families and lives. Despite this, same-sex couples could not marry in many parts of the country. Without marriage equality, those in same-sex relationships struggled in many areas of civil life. For example, marital status impacts family law issues. These issues include child custody, visitation rights, and inheritance rights.

Even hospital visitation became an issue if same-sex partners were not married. Despite these obstacles, gay couples found alternative ways to form families and unions.

Alternatives to Traditional Marriage

Before the Obergefell decision, civil unions and domestic partnerships were the only legal alternatives to marriage. These alternatives are still available for couples who want a legal relationship short of marriage.

Civil Unions

Civil unions give legal recognition to a couple's relationship. Civil unions also offer the same legal rights as heterosexual civil marriages.

Civil unions were first legalized in 1999 in Vermont to provide same-sex couples the same state benefits and protections as heterosexual couples. Civil unions were an appealing option to same-sex partners who lived in states that did not recognize gay marriage.

Civil union benefits vary among the handful of states that allow same-sex civil unions. These benefits include adoption, group health insurance, and emergency care.

Domestic Partnerships

Domestic partnerships are a form of legal relationship that gives legal rights to couples who live together but don't want to marry. Unlike civil unions, which exist on the state level, domestic partnerships exist at the city or state level. New York and San Francisco are two cities that offer domestic partnerships.

The benefits extended to domestic partners vary from state to state. Some states, like Oregon and California, grant almost all state-level spousal rights to unmarried couples. Other states and the District of Columbia provided limited domestic partnerships with fewer rights.

To enjoy the benefits of a domestic partnership, the domestic partners must register and meet specific requirements. Both parties should be over 18 years of age, live together and be in a committed relationship. Domestic partnerships are not extended to blood relatives if that relationship would bar a marriage.

Common-Law Marriage

A common-law marriage is where two people live together for a specific number of years, identify as a married couple, and "intend to get married." Although same-sex couples have the same right to a common-law marriage as heterosexual couples, not all states recognize common-law marriages. Moreover, state laws about common-law marriage vary from state to state.

Same-Sex Marriage

Same-sex marriage is a legal marriage between two spouses of the same gender. Since the Supreme Court's decision in Obergefell, same-sex spouses have the same rights and benefits as legally married opposite-sex couples. These rights include tax relief, emergency medical decision-making power, and inheritance rights.

Although same-sex couples now enjoy the same marriage rights as opposite-sex couples, this wasn't always the case.

Defense of Marriage Act

The Defense of Marriage Act (DOMA) was a federal law that defined marriage nationally. Under DOMA, marriage was between a man and a woman. DOMA also denied federal benefits to same-sex marriages. Congress enacted DOMA in response to Hawaii potentially legalizing gay marriage. In 2013, the U.S. Supreme Court found critical provisions of the Defense of Marriage Act (DOMA) unconstitutional.

With that Court ruling, gay couples living in states that allow same-sex marriage had the same federal benefits and protections as married heterosexual couples. These benefits included eligibility for Social Security benefits and equal application of federal tax laws.

The Court did not invalidate state bans on same-sex marriage. The Court decided that the government must recognize state-sanctioned same-sex marriages.

Obergefell v. Hodges

Despite the Court's 2013 ruling, marriage inequality persisted in many parts of the country. A gay couple's legal status differed from state to state. Some states refused to acknowledge out-of-state marriages.

In 2015, the Court ruled that state bans on same-sex marriage and refusing to recognize legal same-sex marriages were unconstitutional. These bans infringed on gay couples' rights to due process and equal protection. With this decision, same-sex marriage was legal throughout the country.

Today, states must acknowledge legal same-sex marriages from any state. They can get marriage licenses and have the same rights as heterosexual couples.

Get Help

Marriage laws are complex. Seek legal advice if you have questions about same-sex marriage laws. A local family law attorney can help you choose the best legal union for your family.

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