Same-Sex Marriage & Domestic Partnerships

This article summarizes the law of same-sex marriage and reviews the law of domestic partnerships and civil unions.

Same-Sex Marriage

Same-Sex Marriage Is A Legal and Recognized Right 

The U.S. Supreme Court held in 2015 that same-sex married partners have the same “rights” and “benefits” as legally married opposite-sex couples. 

The court also defined “rights” and “benefits” between same-sex married couples to include the following spousal rights:

• spousal right to make an emergency medical decision

• marital tax rights and obligations

• spousal inheritance rights 

• spousal testimonial privilege

With marriage equality now enshrined in law, same-sex couples can enjoy the same legal protections and benefits as their opposite-sex counterparts, marking a historic shift in how marriage is perceived and legislated in the United States.

Prior History of Same-Sex Marriage

The social, religious, and legal controversies over same-sex marriage emerged as a significant political issue in the 1980s, with strong opposition from the religious right.

Before the Supreme Court opinion in Obergefell v. Hodges, states were deeply divided on ways of defining marriage and how property rights could be legally conferred upon same-sex partners. 

State legislatures had begun to enact what is known as “defense of marriage” laws, which limited marriage to relationships between a man and a woman.

As the push to legalize same-sex marriage gained momentum, states began to acknowledge the rights of same-sex couples, leading to significant changes in marriage equality across the country.

In 1996, President Bill Clinton Signed The Defense of Marriage Act (DOMA)

The signing of DOMA into law came as a surprise to most progressives and a celebrated victory for conservatives and the religious right.

However, in 2005, most of DOMA’s provisions were found to be unconstitutional and, therefore, unenforceable by the states. Specifically, the 2015 Supreme Court ruling acknowledged that same-sex marriage was a fundamental right protected by Due Process and the Equal Protection Clause.

Same-Sex Marriages Federally Taxed As Married

In its landmark decision in U.S. v. Windsor, the Supreme Court held that the federal government was prohibited from discriminating against married same-gender couples in determining eligibility for federal benefits and protections.

The IRS states that same-sex couples who were married under state law are considered married under the federal tax code. (See Revenue Ruling 2013-17)

Other Forms Of Partnerships

Domestic Partnerships

The law of domestic partnerships allows states to recognize certain types of domestic partnerships and determine the rights and protections afforded to them under their state law.

Therefore, each state is free to enact its laws relating to domestic partnerships, whether they be same-gender or opposite-gender couples who live together but have elected to remain unmarried.

While same-sex civil unions offer some legal recognitions, the movement towards legalized same-sex marriage has opened the door for more comprehensive rights and recognitions across various states.

The Law of Domestic Partnerships Slowly Evolving 

The law of domestic partnerships is still evolving, partly because there are still no national domestic partnership laws state legislators can follow and because the political implications of enacting such laws at the state level have been met with public resistance. 

So far, the only states that have recognized domestic partnerships include the following:

• California

• Hawaii

• Maine

• New Jersey

• Nevada

• Oregon

• Washington

• Wisconsin

Registering To Become A Domestic Partnership

Official Declaration of Domestic Partnership

Most unmarried partners of the same or opposite gender have chosen to cohabitate in an unofficial capacity while jointly sharing a home and bank accounts.

In states and municipalities that allow domestic partnerships, partners can register to become a domestic partnership, which provides an official public record of the party’s intended status.

Legal Tip

The Domestic Partnership: Under states like California, registered domestic partners have similar rights, protections, and benefits granted to spouses. However, filing for a domestic partnership differs significantly from filing for a marriage license.

The registration publicly records a couple’s relationship status with the state or municipality registry. For an example of a domestic partnership registration process, visit California’s Los Angeles County Domestic Registration page. 

Registering For A Domestic Partnership

Given the variety of state and municipal authorities that allow for same-sex partnerships, there is a wide variety of requirements to officially register as a domestic partnership.

What is generally required to register is:

• To jointly appear at a designated state or municipal location 

• Produce official identification such as a passport, driver’s license, or  

• Fill out the domestic partnership registration form

• Include all contact information and place of employment

• Have the form notarized

• Pay a fee

Civil Unions 

The status of Civil Unions has been recognized by several states that have enacted laws protecting same-gender partnerships.

Both same-sex couples and those in civil unions are now entitled to the same health insurance coverage and benefits as opposite-sex married couples, thanks to the landmark rulings that legalized same-sex marriage.

Some of the rights and benefits afforded to civil unions include:

• Holding title to personal property under the civil union

• Holding title to real property under the civil union

• Having legally recognized survival rights in wrongful death lawsuits

• Asserting loss of consortium in wrongful death claims 

• Having the right to adopt a child under the civil union

• Right to medical benefits held by the other partner’s health insurance 

IRS Position On Domestic Partnerships And Civil Unions

Under federal law, neither registered domestic partners nor civil unions are considered legal marriages. Therefore, the IRS’s position regarding domestic partnerships and civil unions is consistent with federal law, which does not consider them legally equivalent for tax purposes.  

Therefore, according to the IRS, those belonging to a domestic partnership or civil union should file under single or head of household and not file under a married tax status, whether separately or jointly.  

Example Regarding A Dependency Deduction

Under IRS Guidelines, a taxpayer should not file as a head of household if the taxpayer’s only claimed dependent is their registered domestic or civil partner. 

If a child qualifies under IRS Code Section 152(c), both parents are registered domestic partners. Either parent, but not both, is allowed to claim a dependency deduction for the qualifying child.

Legal Tip:

Attorneys And Tax Accountants

Should you want to learn more or have additional questions, it is advised that you consult with a verified Divorce Attorney and Tax Accountant about your specific situation.

Common Misconceptions About Same-Sex Marriage

Misconception: Same-sex marriage harms children raised in those families.

Reality: Decades of research consistently show that children raised by same-sex parents fare just as well as those raised by heterosexual parents. Their psychological, emotional, and social development is not negatively impacted by their parents’ sexual orientation. Factors like the parent-child relationship, parental skills, security, and available social and economic support are key determinants of a child’s well-being, not the parents’ gender.

Misconception: Same-sex marriage undermines traditional marriage.

Reality: No evidence supports the claim that allowing same-sex couples to marry weakens heterosexual marriage. Marriage rates and divorce rates are influenced by numerous societal factors, but same-sex marriage is not one of them.

Misconception: Same-sex marriage is a recent invention.

Reality: While legal recognition of same-sex relationships is relatively recent in many parts of the world, ceremonies recognizing those unions have existed throughout history and across cultures. Examples can be found in ancient Greece and Rome, as well as in some Indigenous cultures.

Misconception: Marriage is solely for procreation.

Reality: While procreation is one aspect of marriage for some couples, it is not the sole purpose. Marriage is also about love, commitment, companionship, legal and economic benefits, and social recognition. Many heterosexual couples choose not to have children, and their marriages are still considered valid.

Misconception: Religion condemns all same-sex relationships.

Reality: While some religious denominations oppose same-sex marriage, others embrace and affirm it. Religious beliefs on this issue are diverse, and it’s important to avoid generalizations. Even within a single religion, there can be varying interpretations and levels of acceptance.

Misconception: Legalizing same-sex marriage will lead to the acceptance of other non-traditional unions, like polygamy.

Reality: These are separate legal and social issues. Legalizing same-sex marriage does not automatically pave the way for the legalization of other forms of marriage. Each issue is considered on its own merits and within its specific legal and social context.

Misconception: Same-sex marriage is against “natural law.”

Reality: The concept of “natural law” is often interpreted differently. What is considered “natural” is often based on cultural and societal norms, which change over time. Scientific understanding of human sexuality also continues to evolve, showing that same-sex attraction is a natural variation of human experience.

Misconception: Granting marriage rights to same-sex couples infringes on religious freedom.

Reality: Protecting religious freedom means individuals and institutions can freely practice their beliefs. However, religious freedom does not grant the right to discriminate against others or deny them equal rights under the law. Finding a balance between these rights is a complex legal and social challenge.

Misconception: Public opinion overwhelmingly opposes same-sex marriage.

Reality: Public opinion has shifted dramatically in recent decades, with a growing majority in many countries now supporting same-sex marriage. While opposition still exists, support has consistently increased across generations and demographics.

Misconception: Same-sex marriage is a “Western” idea.

Reality: While the legal fight for same-sex marriage has been prominent in Western countries, same-sex relationships and forms of recognition for these unions exist across cultures and throughout history, both within and outside the West. The push for legal recognition is now a global movement.

Sources and References:

• Same-sex marriage
• Marriage-equality-around-the-world
• what-is-the-definition-of-a-domestic-partner
• Britannica-same-sex-marriage
• Same-sex-marriage-civil-unions-and-domestic-partnerships
• Answers to frequently asked questions for those married under state law