Evolving Marriage Laws

By Finley Maxson

As more states enact legislation providing legal recognition to same-sex couples, you may wonder about the differences between same-sex marriage and civil unions (or domestic partnerships), as well as how these laws might affect a REALTOR® association.

Confusion over differences in partnership laws

Although states with civil union or domestic partnership laws generally deny same-sex couples the right to marry, they grant some rights similar to those enjoyed by married heterosexuals. Eight states (see sidebar) have civil union laws, and another eight states have domestic partnership statutes. Same-sex couples in these states have the same rights as their heterosexual counterparts when it comes to annulment, divorce, alimony, adoption, property division, joint state tax filing, and property inheritance when one partner dies without a will, among other things.

Same-sex marriage, on the other hand, is currently legal in only six states. A same-sex marriage confers the same state law benefits of heterosexual marriage upon the couple.

The most important difference between a same-sex marriage and a civil union is portability. Although most states will not recognize another state’s civil union, they may recognize another state’s same-sex marriage. According to the full faith and credit clause of the U.S. Constitution, states must recognize the same-sex marriages performed in other states, even when this goes against the state’s own public policy.

This is not true in practice, however. The federal Defense of Marriage Act (DOMA), which passed in 1996, prohibits the federal government from ex-tending heterosexual married benefits to same-sex partnerships and it allows—but does not require—states to not recognize another state’s legal marriage. Section 3, which prevents the federal government from recognizing the validity of same-sex marriages, has been found unconstitutional in two Massachusetts court cases, in a California bankruptcy court case, and by the Obama administration. However, the court rulings are currently under appeal.

Federal laws limiting same-sex partnerships

The Defense of Marriage Act prohibits the federal government from extending heterosexual married benefits to any type of same-sex partnership. Therefore, benefits that are subject to federal regulation are unavailable to same-sex partners, regardless of state law. Benefits, such as employment protections, immigration, the ability to transfer Social Security benefits to a spouse, and more than a thousand others under federal law, do not apply to legally married or united same-sex partners.

Many states have also passed their own DOMA laws, specifically barring same-sex marriages. Most states with a DOMA law—even those that provide some form of same-sex relationship recognition—will not recognize a same-sex marriage from any of the states that allow it. States with so-called super-DOMA laws won’t recognize a same-sex relationship of any kind. The constitutionality of these provisions is in question.

Both advocates for marriage equality and their opponents are looking for the U.S. Supreme Court
to decide the issue of same-sex marriage once and for all.

Associations can choose

If your state adopts a same-sex partnership law, the association attorney should review all policies to determine what effects the change in the law may have on the association.

Federally regulated programs, such as an association’s pension plan, taxation of health benefits, and COBRA plans, can be affected by a state’s laws regarding same-sex partners.

The most important area to review, however, is the employer’s health and benefit plan. Some benefit plans are subject to the federal Employee Retirement Income Security Act, which preempts conflicting state law.

For instance, an association in a state that recognizes same-sex partnerships or marriage may not be required to extend benefits to same-sex partners if their benefit or pension plan is subject to ERISA, since federal law does not recognize same-sex couples.

Of course, an employer can choose to provide coverage to same-sex partners, regardless.

So, according to the law, is my association required to extend any spousal benefits to same-sex partners, such as health coverage?

There’s no quick and easy answer. Same-sex marriage is expected to appear on ballots in several states in 2012, including Minnesota and Colorado, and there are many cases before the state courts right now on this issue. For example, one southern state that has no legal same-sex partnership options, and also has a state constitutional amendment barring same-sex partnerships, along with laws against recognizing another state’s same-sex marriage, has—despite all of these anti-same-sex union measures—granted a divorce to a resident gay couple who were legally married in another state. In granting the divorce, the judge cited the unconstitutionality of the state’s law against recognizing another state’s same-sex marriage. Not long after, another judge in the same state denied a divorce for a same-sex couple, also married in another state, on the grounds that the state does not recognize another state’s same-sex marriage. Both of these cases are currently before the state Supreme Court. All of which is to say, the boundaries on this issue are fluid and your association insurance provider and legal counsel should keep apprised of the latest lawmaking.

What is clear is that any association—like any corporation or business—can choose to extend spousal benefits to same-sex partners.

What’s the future of this issue?

In July 2010, a federal court held key provisions of DOMA unconstitutional; the Department of Justice entered an appeal on Oct. 12, 2010. President Barack Obama is officially opposed to same-sex marriage, although he supports “full civil unions and federal rights” for homosexual couples and a full repeal of DOMA, and called California’s Proposition 8 outlawing same-sex marriage in 2008 “unnecessary.” In August 2010, California’s Proposition 8 was declared unconstitutional under the U.S. Constitution in a federal court case, Perry v. Schwarzenegger, but the ruling has been stayed pending appeal by a higher court; the judge found the ban unconstitutional, ruling that “Proposition 8 disadvantages gays and lesbians without any rational justification.”

Shifting support

A national Gallup poll in May 2011 found 53 percent of Americans support making gay marriage legal, which is a marked reversal from just a year ago, when an equal majority opposed same-sex matrimony.

• Same-sex civil unions recognized
(Connecticut, Delaware, Hawaii, Illinois, New Hampshire, New Jersey, Rhode Island, Vermont)

• Same-sex domestic partnerships recognized
(California, Hawaii, Maine, Nevada, Oregon, Washington, Wisconsin, District of Columbia)

• Same-sex marriage recognized
(Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, New York, District of Columbia)

Finley Maxson is an association counsel with the National Association of REALTORS® in Chicago. He can be reached at fmaxson@realtors.org.