A Primer on Same-Sex Marriage, Civil Unions, Domestic Partnerships, and Defense of Marriage Acts

Updated September 9, 2022 | Infoplease Staff

Learn about the differences among same-sex marriage, civil unions, and domestic partnerships, plus an overview of the Defense of Marriage Act. The controversial topic of gay marriage has become an important part of the American political landscape, state- and country-wide. Plus, you can find a timeline of the American gay rights movement, which will introduce you to the many struggles the gay and lesbian community have experienced.

Definitions

• “Same-sex marriage” means legal marriage between people of the same sex.

  Massachusetts (since 2004), Connecticut (since 2008), Iowa, and Vermont (both since 2009) issue marriage licenses to same-sex couples. California began issuing same-sex marriage liscenses in 2007, but the people of California voted against the measure in 2008, halting the practice.

• “Civil union” is a category of law that was created to extend rights to same-sex couples. These rights are recognized only in the state where the couple resides.

  New Jersey (since 2006), and New Hampshire (since 2007) allow civil unions. These were first issued by Vermont in 2000.

• “Domestic partnership” is a new category of law that was created to extend rights to unmarried couples, including (but not necessarily limited to) same-sex couples. Laws vary among states, cities, and counties. Terminology also varies; for example, Hawaii has “reciprocal beneficiaries law.” Any rights are recognized only on the state or local level.

  Statewide laws in Hawaii, Maine, Oregon, Washington, and district-wide laws in the District of Columbia, confer certain spousal rights to same-sex couples.

What's the Difference?

The most significant difference between marriage and civil unions (or domestic partnerships) is that only marriage offers federal benefits and protections.

According to the federal government's General Accounting Office (GAO), more than 1,100 rights and protections are conferred to U.S. citizens upon marriage. Areas affected include Social Security benefits, veterans' benefits, health insurance, Medicaid, hospital visitation, estate taxes, retirement savings, pensions, family leave, and immigration law.

Because same-sex marriages in Massachusetts and California, civil unions, and domestic partnerships are not federally recognized, any benefits available at the state or local level are subject to federal taxation. For example, a woman whose health insurance covers her female partner must pay federal taxes on the total employer cost for that insurance.

Federal Legislation: DOMA

In 1996, the Defense of Marriage Act (DOMA) was passed by Congress and signed into law by President Clinton. DOMA allows each state to choose whether or not to recognize a same-sex union that is recognized in another state—thus allowing a choice of whether to enforce the U.S. Constitution's “full faith and credit” clause (which requires each state to recognize the laws and legal contracts of other states) in this matter.

However, DOMA has yet to be fully tested in the courts. Because the U.S. Constitution does not give Congress the power to limit the scope of the “full faith and credit” clause—only to enforce its application—the constitutionality of DOMA has not been proven.

State Legislation

Since DOMA was passed in 1996, almost every state has taken advantage of the opportunity it offers by either enacting legislation or amending its state constitution to declare same-sex marriages invalid, even for couples married in a state where such marriages are licensed.

In addition to preventing marriage licenses from being issued to opposite-sex couples, state legislation may be used in efforts to overrule existing state or local rights and protections for same-sex couples and their children.

Proposed Federal Marriage Amendment

Because the constitutionality of DOMA and state legislation against same-sex marriage has yet to be fully tested by the courts, relying on legislation to settle the issue of same-sex marriage is of questionable use. As a result, text for a proposed constitutional amendment known as the Federal Marriage Amendment (FMA) has been introduced to Congress on multiple occasions since 2002.

The amendment would define marriage as the union of a man and a woman and could be used to overrule state or local protections for same-sex couples and their children. To become part of the U.S. Constitution, the FMA would need to be approved by two thirds of Congress and then ratified by three fourths of state legislatures.

See also: Policies Pertaining to Same-Sex Marriages, Civil Unions, and Domestic Partnerships, which lists the status of legislation in each state and in countries around the world.