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Massachusetts Law About Same-Sex Marriage

The Mass. Case

Goodridge v. Mass. Department of Public Health, 440 Mass. 309 (2003). Massachusetts' "gay marriage" decision. "Barred access to the protections, benefits, and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community's most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law."

For briefs and other pleadings, see Goodridge v. Department of Public Health Case Documents, Gay and Lesbian Advocates and Defenders (GLAD).

Massachusetts Laws

Massachusetts Constitution

MGL c.207. Marriage. The same laws and procedures that govern traditional marriage also apply to same-sex marriages. There are no special procedures for a same-sex marriage.

Selected Massachusetts Case Law

Della Corte v. Ramirez, 81 Mass. App. Ct. 906 (2012). A child born of a same-sex marriage is the legitimate child of both people. "As a result, it follows that when there is a marriage between same-sex couples, the need for that second-parent adoption to, at the very least, confer legal parentage on the nonbiological parent is eliminated when the child is born of the marriage."

Elia-Warnken v. Elia, 463 Mass. 29 (2012). " a Vermont civil union is the functional equivalent of a marriage." Therefore, " a Vermont civil union must be dissolved prior to either party entering into marriage with a third person in the Commonwealth."

Hunter v. Rose, 463 Mass. 488 (2012). "a registered same-sex domestic partnership entered into in California was the equivalent of marriage in the Commonwealth."

Federal Laws

U.S. Constitution, Article IV ("full faith and credit").

1 USC 7 Defense of Marriage Act. Definition of "Marriage" and "Spouse." Held unconstitutional by the Supreme Court in United States v. Windsor, 570 US __ (2013).

28 USC 1738C. Certain Acts, Records, Proceedings and the Effect Thereof.

Federal Cases

Massachusetts v. US Dept. of Health and Human Services (consolidated with Gill v. Office of Personnel Management), 682 F.3d. 1 (2012). Unanimous court ruled that Section 3 of the "Defense of Marriage Act," 1 USC 7, is unconstitutional, but stayed the decision pending appeal. See also, lower court decision in Gill v. Office of Personnel Management, 699 F.Supp.2d 344 (2010).

United States v. Windsor, 570 US __ (2013). US Supreme Court held "DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution."

Other Web Sources

After DOMA: Guide for Same-Sex Couples, GLAD. A series of fact sheets for couples on a variety of issues affected by the US v. Windsor decision, including federal taxes, immigration, medicaid, social security, military spousal benefits and many more.

Clarification of the Definition of "son or daughter" in Family and Medical Leave Act: Adminstrator's Interpretation No.2010-3, US Department of Labor, June 2010. "The administrator interpretation issued by Nancy J. Leppink, deputy administrator of the department's Wage and Hour Division, clarifies that these rights, which provide work-family balance, extend to the various parenting relationships that exist in today's world. This action is a victory for many non-traditional families, including families in the lesbian-gay-bisexual-transgender community, who often in the past have been denied leave to care for their loved ones. "

Federal Benefits for Same-Sex Partners, The Office of Personnel Management is now able to provide benefits to legally married same-sex spouses of federal employees and annuitants.

For Gays, Adoption Irony: Some Countries May Reject Married Couples' Applications, Boston Globe, May 8, 2004.

Foreign Affairs Manual, v.7, Appendix C, sec. 1359: Change of Name by Operation of Law, Including Same Sex Marriage and Civil Union, and Name Change for Use in Passports, as amended June 15, 2009. Effective immediately, an individual who has changed his name as a result of a same-sex marriage may have a passport issued in his new name. See How to Change the Last Name on Your Passport Using Your Marriage Certificate.

Housing and Mortgages for Gay and Lesbian Couples, Mortgage Loan.com. "This guide will help to explain the different approaches that same-sex couples can take to getting a mortgage, establishing ownership of a home, and creating legal documents that anticipate any legal or property-ownership issues that might occur if the couple breaks up or one partner dies."

How to Get Married in Massachusetts, Gay and Lesbian Advocates and Defenders (GLAD), January 2013. "Sets forth the details for the process for marrying in Massachusetts – who can marry, how you get a license, what you need to bring with you, the waiting period, and who can perform the ceremony." GREAT resource for couples from any state.

A Legal Guide for Lesbian and Gay Couples, Nolo, 2012. This online book is not specific to Massachusetts. Requires Library Card for access.

Making it legal : a guide to same-sex marriage, domestic partnership & civil unions / Frederick C. Hertz with Emily Doskow, Nolo, 2011. A brief history of the same-sex marriage movement -- Same-sex marriage around the world and at home -- What it means to be married -- The real life consequences of legal discrimination -- Marriage material -- Ten steps to a decision -- To prenup or not to prenup? -- Avoiding the ugly gay divorce -- Estate planning for same-sex couples -- Legal change in action: how change happens and what to expect. Requires Library Card for access.

Marriage Tips and Traps, Gay and Lesbian Advocates and Defenders (GLAD), June, 2012. Covers critical issues concerning finances, benefits, adoption, international relationships and more.

Massachusetts Tax Issues Associated with Same-Sex Marriages, Technical Information Release 04-17, Mass. Dept. of Revenue.

Medicare, All beneficiaries in private Medicare plans now have access to equal coverage when it comes to care in a nursing home where their spouse lives.

Same Sex Marriage and Immigration, US Citizenship and Immigration Services. Explains how to sponsor a same-sex spouse in immigration.

Social Security, The Social Security Administration now recognizes same-sex marriages for purposes of determining benefits.  

Taxes, 8/29/13: The Dept. of Justice and Internal Revenue Service ruled that "same-sex couples, legally married in jurisdictions that recognize their marriages, will be treated as married for federal tax purposes. The ruling applies regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that does not recognize same-sex marriage."

Uniformed Servicemembers and Civilian Employees, Benefits, The Department of Defense will extend benefits to same-sex spouses of uniformed service members and civilian employees.

U. S. Visas for Same-Sex Spouses, U. S. embassies and consulates will process visa applications for same-sex marriages the same as for opposite gender spouses.

Print Sources

Drafting Family Law Agreements, MCLE, 2009.

Estate Planning for Subsequent Marriages and Same-Sex Marriages, MCLE, 2007.

Making it Legal: A Guide to Same-Sex Marriage, Domestic Partnership and Civil Unions, Nolo, 2011.

Information For Residents of Other States

St.2008, c.216 was enacted on July 31, 2008, repealing the so-called "1913 laws" (MGL c.207, s.11, 12, 13, and 50) which prohibited most same-sex couples from other states from marrying in Massachusetts. Residents of other states may now follow the same procedures as Massachusetts residents for marrying. See Mass. Law About Marriage for more information and forms.

Legal Issues For Non-Massachusetts Same-Sex Couples Who Married In Massachusetts Prior To July 31, 2008, GLAD, 2011. Explains in detail which couples have valid marriage, which have void marriages, and which have voidable marriages, with information on what you may need to do to stay married or to end your marriage.

Memo to Clerks Regarding Impediments to Marriage, Registry of Vital Statistics, 2012. Explains process for people who have a valid civil union from another state.

Thinking Of Getting Married in Massachusetts?: Q & A for Same-Sex Couples Thinking about Marriage, American Civil Liberties Union. Contains important information on issues to consider before and after marrying in Massachusetts.

Warning for Same-Sex Binational Couples: Marriage Will Not Fix Immigration Problems; May Cause New Ones, Gay and Lesbian Advocates and Defenders (GLAD).

California

In Re Marriage Cases, 49 Cal. Rptr. 3d 675 (May 15, 2008). Ruled that California laws prohibiting same-sex marriage are unconstitutional. Same-sex couples were granted the right to marry as of June 17, 2008.

Proposition 8. On November 4, 2008, voters approved this measure eliminating the right of same-sex couples to marry. As of November 5, 2008, same-sex couples were no longer permitted to marry.

Strauss v. Horton 93 Cal. Rptr. 3d 591 (May 26, 2009). The court upheld the constitutional amendment prohibiting same-sex marriage, but ruled that "the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid and must continue to be recognized in this state."

Perry v. Brown, 671 F.3d 1052, February 7, 2012. Court ruled that Proposition 8 violates the Fourteenth Amendment to the United States Constitution.

Hollingsworth v. Perry, 570 US __ (2013). In appeal of Perry v. Brown, above, US Supreme Court held: "Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is
vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction." Leaves intact the US District Court opinion holding Proposition 8 unconstitutional.

Perry v. Brown, (U.S. Ct. of Appeals, 9th Circuit, June 28, 2013). Order lifts the stay issued in 2010 that had prevented same-sex couples from marrying. Couples were able to begin marrying in California June 28, 2013.

Connecticut

Kerrigan v. Commissioner of Public Health (SC17716), 289 Conn. 135 (2008). "Interpreting our state constitutional provisions in accordance with firmly established equal protection principles leads inevitably to the conclusion that gay persons are entitled to marry the otherwise qualified same sex partner of their choice." Couples were able to marry beginning October 28, 2008. See also: Borden Dissent, Vertefeuille Dissent, Zarella Dissent.

Delaware

An Act to Amend Title 13 of the Delaware Code Relating to Domestic Relations to Provide for Same-Gender Civil Marriage and to Convert Existing Civil Unions to Civil Marriages, Signed May 7, 2013. Effective July 1, 2013, same sex couples may marry. In addition, existing civil unions not subject to dissolution will convert to marriages automatically on July 1, 2014 (although couples may choose to convert sooner).

District of Columbia

On December 18, 2009, DC Mayor Adrian Fenty signed the Religious Freedom and Civil Marriage Equality Amendment of 2009, granting same-sex couples the right to marry in the nation's capital. The US Supreme Court declined to intervene on March 2, clearing the way for same-sex couples to obtain marriage licenses beginning March 3, 2010.

Hawaii

Hawaii Marriage Equality Act of 2013, Senate Bill 1, signed by Gov. Abercrombie on November 13, 2013, to be effective December 2, 2013

Illinois

Religious Freedom and Marriage Fairness Act, signed November 20, 2013. "All laws of this State applicable to marriage...shall apply equally to marriages of same-sex and different-sex couples and their children." Effective June 1, 2014.

Iowa

Varnum v. Brien, 763 NW2d 862 (April 3, 2009). "We have a constitutional duty to ensure equal protection of the law. Faithfulness to that duty requires us to hold Iowa's marriage statute... violates the Iowa Constitution...If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded." Couples could begin getting marriage licenses on April 27, 2009.

Kentucky

Bourke v. Beshear (U.S. Dist. Ct., Feb. 12, 2014).The U.S. District Court for the Western District of Kentucky ruled that Kentucky must recognize same-sex marriages from other states. "Kentucky's denial of recognition for valid same-sex marriages violates the United States Constitution's guarantee of equal protection under the law, even under the most deferential standard of review. Accordingly, Kentucky's statutes and constitutional amendment that mandate this denial are unconstitutional."

Maine

An Act To End Discrimination in Civil Marriage and Affirm Religious Freedom (May 6, 2009). Amended existing marriage laws to incorporate rights for same-sex couples. On November 3, 2009, following the "people's veto" procedure created by the Maine Constitution, Article IV, Part Third, Section 17, the marriage law was repealed. See ballotpedia for much more information and links to sources.

2012 Question 1: Do you want to allow the State of Maine to issue marriage licenses to same-sex couples? passed on November 6, 2012. According to the Bangor Daily News, "The secretary of state has 20 days to approve election results and send them on to the governor, Megan Sanborn said. Gov. Paul LePage then has 10 days to certify the results. The law goes into effect 30 days after the governor certifies election results, Sanborn said." Thus, "Same-sex couples in Maine should be able to obtain marriage licenses by January 5, 2013 and get married the same day.".

Maryland

Civil Marriage Protection Act, 2012 Chapter 2 Signed March 1, 2012. Effective January 1, 2013, but "a license is not effective until 6 a.m. on the second calendar day after the license is issued," so presumably couples cannot marry until January 3, 2013. A ballot question in November 2012 affirmed the law. "Altering a provision of law to establish that only a marriage between two individuals who are not otherwise prohibited from marrying is valid in the State; prohibiting an official of a religious order or body authorized to perform a marriage ceremony from being required to solemnize or officiate at a marriage or religious rite of a marriage in violation of the constitutional right to free exercise of religion; making the Act contingent on the resolution of litigation under specified circumstances; etc."

Michigan

DeBoer v. Snyder, Civil Action No. 12-CV-10285 (US Dist. Ct., E.Dist. Michigan, March 21, 2014.) Michigan's constitutional amendment barring same-sex marriage "impermissibly discriminates against same-sex couples in violation of the Equal Protection Clause because the provision does not advance any conceivable
legitimate state interest." Decision stayed by the 6th Circuit Court of Appeals pending appeal. New!

Minnesota

HF1054: Amends Minnesota's marriage law to make it gender-neutral. Signed May 14, 2013, effective August 1, 2013. The Minnesota Legislative Reference Library has a detailed page on same sex marriage in Minnesota at Resources on Minnesota Issues: Same-Sex Marriage in Minnesota.

New Hampshire

2009 N.H. Laws ch.59. Signed June 3, 2009. Effective January 1, 2010. "This bill eliminates the exclusion of same gender couples from marriage, affirms religious freedom protections of clergy with regard to the solemnization of marriage, and provides a mechanism by which same gender couples who have entered into a civil union prior to the enactment of this bill may obtain the legal status of marriage."

New Jersey

Garden State Equality v. Dow, Decision on Motion for Summary Judgment, 9-27-13

Garden State Equality v. Dow, Motion for Stay Pending Appeal, 10-18-13. "State officials shall therefore permit same-sex couples, who are otherwise eligible, to enter into civil marriage, beginning on October 21, 2013."

Lewis and Winslow v. Harris, 188 NJ 415 (2006). "Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process."

Civil Union Law (enacted December 2006)

New Mexico

Supreme Court of the State of New Mexico Ruling, affirming the right of same-sex partners to marry in the state, effective immediately, dated December 19, 2013.

New York

Marriage Equality Act relating to ability of individuals to marry, A8354-2011. New York's Same-Sex Marriage Law, effective July 24, 2011.

Oklahoma

Bishop v. Oklahoma No. 04-CV-848-TCK-TLW (US Dist. Ct., N.Dist.Okla., January 14, 2014). "Part A of the Oklahoma Constitutional Amendment violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution by precluding same-sex couples from receiving an Oklahoma marriage license." Stayed pending appeal.

Rhode Island

Executive Order 12-02 Recognition of Out of State Same Sex Marriages. Rhode Island will recognize valid same-sex marriages from other jurisdictions. Effective May 14, 2012.

An Act Relating to Domestic Relations - Persons Eligible to Marry. Enacted May 2, 2013, effective August 1, 2013, grants same-sex couples the right to marry in Rhode Island. GLAD has prepared an extensive guide called Rhode Island Marriage Guide for Same-Sex Couples.

Texas

DeLeon v. Perry, Cause No. SA-13-CA-00982-OLG (US Dist. Ct., W.Dist. Texas, February 26, 2014)."this Court holds that Texas' prohibition on same-sex marriage conflicts with the United States Constitution's guarantees of equal protection and due process." Decision was stayed pending appeal.

Utah

Same-sex marriage is not currently available in Utah pending appeal.

in Kitchen v. Herbert (Dec. 20, 2013), the US District Court for the District of Utah, Central Division a federal judge ruled Utah’s amendment barring same-sex marriage violated the United States Constitution and ordered Utah to immediately cease enforcement of its laws restricting marriage to a man and a woman. Same-sex couples were permitted to marry between December 23, 2013 and January 6, 2014.

In Herbert v. Kitchen (Jan. 6, 2014), the US Supreme Court stayed the decision pending appeal to the 10th Circuit Court of Appeals.

Utah's Attorney General (Jan. 8, 2014) said that Utah does not have to recognize recent same-sex marriages . "The State can neither recognize nor confer new marital benefits. While the ultimate validity of such marriages is subject to the decision of a higher court, it is clear that the State is bound by law to limit any benefits attaching after the stay."

US Attorney General Eric Holder (Jan. 10, 2014), speaking for the Federal government said, “I am confirming today that, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages."

Vermont

An Act to Protect Religious Freedom and Recognize Equality in Civil Marriage, S.115. Enacted over the Governor's veto April 7, 2009. "S.115 and the House Judiciary Committee amendment define civil marriage as "the legally recognized union of two people." To establish a civil marriage, the persons may not be related to one another, must be at least 18 years of age, and may not be already married to or in a civil union with a different person." Couples could begin marrying on September 1, 2009.

Elia-Warnken v. Elia, 463 Mass. 29 (2012). " a Vermont civil union is the functional equivalent of a marriage." Therefore, " a Vermont civil union must be dissolved prior to either party entering into marriage with a third person in the Commonwealth."

Virginia

Bostic v. Rainey, Civil No.2:13cv395 (US Dist.Ct, E.Dist.Va., February 14, 2014). Held any "Virginia law that bars same-sex marriage or prohibits Virginia's recognition of lawful same-sex marriages from other jurisdictions unconstitutional. These laws deny Plaintiffs their rights to due process and equal protection guaranteed under the Fourteenth Amendment ofthe United States Constitution." Stayed pending appeal.

Washington

Same Sex Marriage, Chapter 3, Laws of 2012. February 13, 2012. While set to become effective June 7, 2012, opponents gathered enough signatures to put the issue on the ballot. Referendum 74 read: "This bill would allow same-sex couples to marry, preserve domestic partnerships only for seniors, and preserve the right of clergy or religious organizations to refuse to perform, recognize, or accommodate any marriage ceremony." The measure passed. According to the Secretary of State, "December 6, 2012 is the last day for the Office of the Secretary of State to certify the returns." There is a three day waiting period after getting a license before you can marry. It appears, then, that the first day to marry is December 9, 2012.