Same-Sex Marriage Historic Developments

Same-Sex Marriage Historic Developments

By Carl O. Graham

same sex, lgbt, gay marriage

Over the past 20 years, same-sex marriage has exploded, going from an issue where courts started overturning gay marriage bans, to states responding with a variety of half-measures to afford some of the benefits of marriage, to full legalization. Now the issue is mainstream enough that what was once a series of same-sex resource articles has been condensed into a relatively brief article on the developments in LGBT marriage that got us where we are today.

Gay Marriage & Federal Law

In 1996, as a reaction to Hawaii's pending legalization of same-sex marriages, Congress passed the Defense of Marriage Act (DOMA), which codified two provisions into federal law:

“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.”

1 U.S. Code § 7 (Note - though unenforceable, this section is still on the books, yet another relic awaiting a cleaning up of our statutes).

The federal government, in stepping into the issue of marriage which had long been a state issue, codified discrimination. And for the first time, the feds would refuse to recognize marriages that were lawful under state law.

The law went one step further, and allowed other states to opt out of the traditional “full faith & credit” one state must give to the official acts of the other, but only with respect to same sex marriage - in other words, one state could refuse to recognize a same-sex marriage performed in another state:

“No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”

28 U.S. Code §1738C

After several years of federal district and appellate courts chipping away at DOMA, in 2013 the U.S. Supreme Court attacked it head-on with United States v. Windsor, 570 U.S. 744 (2013) overturning §3 of DOMA which barred federal benefits to same-sex couples who are legally married under state law. The first step, therefore, was to take the feds out of the debate, and return marriage to the states.

But what of states that discriminated against a same-sex couple who were lawfully married in one state? Windsor only precluded the federal government from discriminating against a lawfully-married same-sex couple, but under § 3 of DOMA, states were free to both (1) ban same-sex marriages, and (2) refuse to recognize as legal a same-sex marriage performed in another state.

For two years, it was like the wild west, with more and more federal courts expanding the Windsor ruling to prohibit states from discriminating against same-sex couples. Finally, the Supreme Court stepped in again in the 2015 decision, Obergefell v. Hodges, ___ U.S. ___, 135 S.Ct. 2584 (2015). The Court ruled that same-sex couples had a fundamental right to marry, protected by the Due Process and Equal Protection Clauses of the 14th Amendment. Finally, all states & territories would be required to recognize the legality of same-sex marriages.

Colorado Same-Sex Marriage Ban

In 2006, Colorado voters passed, by 55-45, Amendment 43, which added a new section 31 to Article II of the Colorado Constitution, reading: “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.”

C.R.S. 14-2-104(1)(b) similarly prohibited same-sex marriages between gay or lesbian couples, by specifying that a marriage is between one man and one woman. In view of the SCOTUS decisions cited above, this ban has been overturned, and same-sex couples in Colorado have the same marriage rights as heterosexual couples.

Designated Beneficiary Agreements

In 2009, Colorado enacted HB 1260, the Colorado Designated Beneficiary Act, codified at C.R.S. 15-22-101, et seq. It was a first, baby step to give a few of the rights of marriage to unmarried couples, including same-sex couples, but fell far short of the full protections of marriage.

In essence, the law provided for a super-charged power of attorney, providing that a couple could enter into a Designated Beneficiary Agreement, and under C.R.S. 15-22-105 have some basic rights:

  • Property. Hold property as joint tenants with right of survivorship or as tenants in common.
  • Inheritance. Inherit from the other without probate.
  • Survivor Benefits. Be designated as dependent, and receive survivor benefits for PERA, local firefighter/police pensions, and life insurance.
  • Hospital Visitation
  • Decision-Making. Have priority for appointment as conservator/guardian, and make end-of-life decisions.

More fundamental rights not granted under the Act included filing a joint tax return, requiring health insurers to insure the partner, and, of course, any rights under federal law, which were curtailed under the Defense of Marriage Act discussed above.

As a Designated Beneficiary Agreement was a contract, and not a marriage (or even a civil union), either partner could revoke it at will. Moreover, a Designated Beneficiary Agreement is deemed revoked if either party marries or enters into a civil union.

Civil Unions

In 2013, the Colorado governor signed into law SB 13-011, the Colorado Civil Union Act, which added a new Article 15 to Title 14 of the Colorado Revised Statutes. Colorado became the 18th state to recognize either same-sex marriages, or civil unions. As the civil union statute is still in effect, this article is written in the present tense, although now that same-sex marriage is completely legal, it’s hard to conceive of a situation where a committed couple would prefer a civil union instead.

Civil unions were a giant leap from Designated Beneficiary Agreements, conferring on couples most of the state law rights of marriage (other than taxes), but as the federal Defense of Marriage Act was still in effect, no federal rights were granted. It went about as far as the legislature was able to go, given that Amendment 43 still defined marriage as a man/woman union.

Per C.R.S. 14-15-104(1), civil unions are not limited to same-sex couples. Any adult, regardless of sex, could enter into a civil union as long as neither party was married or already in a civil union. And, as with marriage, C.R.S. 14-15-105 prohibits the same incest relationships as are prohibited for marriage - no civil unions with an ancestor or descendant, a brother or sister, an uncle or aunt, or a niece/nephew.

And while the Colorado Constitution forbade recognition of same-sex marriages, the civil union statute would treat a same-sex marriage from another state as a civil union under Colorado law.

Per C.R.S. 14-15-107, the parties to a civil union have “all the rights, benefits, protections, duties, obligations, responsibilities, and other incidents under law as are granted to or imposed upon spouses.” A few of the highlights:

  • Spouse/Family Definition. The definition of immediate family member now includes a civil union partner. C.R.S. 2-4-401. This is an important “catch-all”, as the term is used throughout the Colorado Revised Statutes, and means that a civil union partner is now treated as family. C.R.S. 14-15-107 further states that “spouse” includes a civil union partner.
  • Employment Benefits. A “partner in a civil union” is now in the same category as spouse, and may receive benefits such as workers’ compensation, health care, survivor benefits, unemployment, family medical leave, etc.
  • Spousal Communications Privilege. A civil union partner has the same protections that a spouse has not to testify against one-another or to reveal confidential communications between the partners.
  • Marital Agreements. Civil union partners can enter into pre-nuptial or post-nuptial agreements just as spouses can.
  • Probate Proceedings. A civil union partner is a spouse for purposes of guardianship, conservatorship, wills/trust/inheritances, etc.

A civil union partner has the same presumption of paternity that a spouse has - a child conceived to one partner in a civil union is presumptively the child of the other, even though there is no biological relationship. C.R.S. 19-4-105.

For purposes of adoption, a civil union partner is treated as a spouse. Civil union partners can adopt a child jointly, C.R.S. 19-5-202(4), and if one partner already has a child, his/her civil union partner can adopt the child through the same stepparent procedures set forth in C.R.S. 19-5-203 (which makes adoption easier than it would be for non-spouses).

Finally, Colorado’s adaptation of the Uniform Dissolution of Marriage Act has been amended to include dissolving civil unions. To preserve the technical distinction between a marriage and a civil union, the caption reads “In re: the Civil Union of...”, rather than “In re: the Marriage of...” C.R.S. 14-10-105.

Other than that, the procedural and substantive requirements to dissolve a civil union are the same as for a marriage. C.R.S. 14-10-106.5. They are dissolved, annulled, and partners can be legally separated, the same as with married spouses. Assets, debts, children, support, etc. are handled the same.

One interesting jurisdictional twist that only applies to civil unions is that of jurisdiction. If you enter into a civil union in Colorado, Colorado forever retains jurisdiction to dissolve the civil union, even if one or both parties have left the state. C.R.S. 14-10-106.5(1). This contrasts to dissolution of marriage, where Colorado only has subject matter jurisdiction to grant a dissolution if one spouse still remains in Colorado, and the court may lack personal jurisdiction over the spouse who left the state. Presumably this is to address the concern that a couple who entered into a civil union may move to a state which does not recognize civil unions, and without this broad jurisdiction, could be left with no way to dissolve their civil union.

More Information

Wikipedia has an exhaustive article on the Defense of Marriage Act, including its legal challenges.

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