A Marriage by Any Other Name: Why Civil Unions Should Receive Federal Recognition

Abstract

Once upon a time, not very long ago, there were more states where a same-sex couple could enter into a civil union or domestic partnership than states where they could marry. 1 In the wake of United States v. Windsor, 2 the federal government has largely ended its discriminatory policy of denying recognition to 1. In July 2011, nine states, plus the District of Columbia, permitted same-sex couples to form civil unions or domestic partnerships that provided full or virtually full state-level spousal rights, while only six states, plus the District of Columbia, permitted same-sex couples to marry; at that time, there were three additional states that had created alternative statuses that provided partial spousal rights. See Marriage Equality & Other Relationship Recognition Laws, Hum. rts. campaIgn (July 6, 2011), http://www.hrc.org/state_maps (on file with author). Analysis of data from the 2010 census suggests that, at that time, there were approximately 220,000 same-sex couples in formal legal relationships, split almost evenly between those who were married and those who were in civil unions or domestic partnerships.

Legal Recognition of Same‐Sex Relationships: New Possibilities for Research on the Role of Marriage Law in Household Labor Allocation

“…This section explains the evolution of legal recognition of same‐sex relationships in the United States to assist researchers in developing qualitative or quantitative research in this area. It summarizes a series of legal developments that I have discussed in recent articles published in law reviews (Widiss, ; Widiss & Koppelman, ). Marriage rights are now universally available in the United States.…”

“…Many couples who entered into one of these alternative statuses have now married; in some states, alternative statuses were automatically converted to marriages. However, some individuals in such alternative statuses may opt to remain unmarried, or they may no longer have the mental capability to marry (Widiss & Koppelman, ).…”

“…Social Security, however, used a domicile approach, meaning that out‐of‐state marriages were not recognized (US Social Security Administration, ). As of August 2015, couples in state‐recognized civil unions or domestic partnerships are generally not treated as “married” for federal purposes (Widiss & Koppelman, ). However, couples in such alternative statuses are recognized for Social Security purposes, because the relevant statute explicitly covers nonmarital relationships that provide a right to inherit intestate.…”

“…66Between 2013 and 2015, couples who were married but lived in states that did not recognize their marriage were not recognized as married under a few federal statutes, including the Social Security Act and, for much of this time period, the Family and Medical Leave Act (Widiss & Koppelman, ).…”