Same-sex marriage equality is an issue that has a growing number of people passionately engaged. What is going on here? Is it a recognition issue? Is it a religious issue? Is it a definitional tempest in a teacup?

Does it matter what name, level of recognition and status we give to same-sex couples? It appears to matter a lot to a growing number of Americans who feel the time for neutrality on the same-sex marriage issue has passed. It engaged President Barack Obama enough that on May 9th, in an interview with ABC news, he affirmed that same-sex couples should be able to get married. Since then there has been a veritable explosion of position-taking by a wide variety of religious and political leaders, the NAACP and even retired general Colin Powell.

But for same-sex couples, the issue transcends mere acknowledgment, recognition, or acceptance. From a legal perspective, the status or level of recognition of same-sex couples relationship matters a great deal in terms of the rights and protections that are either afforded or denied them.

Let’s look at how marriage is defined legally, both at the federal and the state level.

Defense of Marriage Act (DOMA)

The federal definition of marriage is embodied in the Defense of Marriage Act or DOMA. It reads in part: “[T]he word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers to a person of the opposite sex who is a husband or a wife.” The law passed both houses of Congress by large majorities and was signed into law by President Bill Clinton on September 21, 1996. The effect is that 1,138 federal statutory provisions classified in the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges are afforded to heterosexual couples and, thus, denied to same-sex couples.

DOMA Under Siege

U.S. Attorney General, Eric Holder, announced in February that the Department of Justice saw DOMA as unconstitutional and would no longer defend it in court. Currently, there are five pending federal court cases where the Defense of Marriage Act has been declared unconstitutional.

As recently as May 24th of this year, U.S. District Judge Claudia Wilken in the District Court for the Northern District of California ruled in Dragovich v. Department of the Treasury that Section 3 of the Defense of Marriage Act was unconstitutional. This case joins three other circuit court cases and one bankruptcy court case. In Gill v. Office of Personnel Management, Judge Joseph Tauro ruled that Section 3 of the Defense of Marriage Act violated the Due Process Clause of the Fifth Amendment. In Massachusetts v. U.S. Dep’t of Health and Human Services he ruled that DOMA also violated the Tenth Amendment. On May 31, 2012, the U.S. First Circuit Court of Appeals affirmed his decision unanimously, becoming the first federal appeals court ruling invalidating federal same-sex marriage restrictions. It could be the case that compels this issue before the United States Supreme Court. The court did, however, limit its ruling specifically to the issue of federal benefits.

The third was Golinski v. Office of Personnel Management, earlier this year. That case is scheduled for appeal in the U.S. Ninth Circuit Court of Appeals in September. Finally, U.S. Bankruptcy Court judge Thomas Donovan in the Central District of California on June 15, 2011 ruled Section 3 of DOMA unconstitutional. Remarkably, 19 of the 24 other federal bankruptcy court justices signed their agreement to Judge Donovan’s ruling.

Court of Public Opinion

Before we look at the States, it’s important to note the Court of Public Opinion. A May 8, 2012 Gallup Poll reveals that 50% of Americans believe same-sex marriages should be recognized by law as valid, with the same rights as traditional marriages. This percentage is down slightly from 53% last year. Forty-eight percent say such marriages should not be legal.

Still, 50% is a lot of support. And yet…

For as much as there appears to be a groundswell of support for same-sex marriage equality, it does not appear to be reflected in the State voting booths or in the halls of justice.

MARRIAGE (according to State law)

Mini-DOMAs: The majority of states have enacted mini-DOMA laws or constitutional amendments affirming marriage as between one man and one woman. In fact, 38 states will not recognize same-sex marriages validly celebrated elsewhere, and some will not recognize marriage-like relationships such as civil unions and domestic partnerships certified in other states.

Recognition of Same-Sex Marriages:

Six States, Washington DC, & two native American Tribes recognize same-sex marriages: Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, Oregon’s Coquille Indian Tribe, Washington State’s Suquamish Indian Tribe, and Washington, DC.

Two states have legislation in process, Washington and Maryland, but may be subject to a referendum vote.

California legalized same-sex marriages from June 16, 2008 to November 4, 2008. With Proposition 8, they changed their mind, but they continue to recognize the 18,000 or so marriages performed during the months prior. They also recognize every other State’s same-sex marriages performed before November 4, 2008. Proposition 8 was on appeal, but in February of this year, the Ninth Circuit Court of Appeals chose not to rule on it, instead sending the case on to the U.S. Supreme Court.

Two states recognize marriages by same-sex couples legally entered into in another jurisdiction: Maryland (2010 & 2012) and Rhode Island (2007.)


The impact of the lack of legal status touches not only the same-sex couple, but also the children they may be raising.

One survey estimates that upwards of nine million children are being raised by lesbian, gay and bisexual parents in the United States. (1995 National Health and Social Life Survey by E.O. Lauman, Committee on Psychosocial Aspects of Child and Family Health, 2002) One out of 3 lesbian couples is raising children and one of 5 gay male couples is doing the same. At least one same-sex couple is raising children in 96% of all counties nationwide.


What happens when a same-sex couple raising children decides to dissolve their relationship and they live in the state that gives their partnership no formal status? Specifically, what if the state does not recognize it as a marriage, domestic partnership or civil union? Let’s further assume it is a single party adoption state. Meet Sue and Mary. They have been partners for 15 years. Sue conceived their two girls by artificial insemination using her own eggs. Mary adopted the girls, now aged 10 and 12, and Sue was forced to relinquish all parental rights to the girls because in the state they live in, only one person can be named on the adoption papers. Mary has been the breadwinner throughout the relationship, while Sue has stayed home to raise the children. They are now dissolving their partnership, and it is a high conflict situation.

How do such practical issues as alimony or child support get handled? Or can they? There would appear to be no legal mechanism to assist a same-sex couple in this situation. What about child custody? Visitation? For their entire relationship, the children have been as much Sue’s children as Mary’s. Yet the legal system would seem to give Sue no rights whatsoever to the children. Legally, because of the adoption papers, they belong entirely to Mary.

We cannot rely on the hope that Mary will “do the right thing” for the sake of the children and each other, because we know that we have a legal system with laws compelling people to act, or refrain from acting, in certain ways is that people, especially people in conflict, may not be disposed to do the right thing.

Even when there are no children:

Same-sex couples whose relationship has no legal status do not enjoy some of the basic rights, privileges and protections that married heterosexual couples do. Here are a few examples:

—The Family & Medical Leave Act allows a married heterosexual person to take leave from work to care for their spouse. There is no legal mechanism to afford same sex partners the same privilege.

—Hospital visitation rights are not automatic for same-sex partners.

—No legal mechanism exists to guard a partner from eviction from the home. Medicaid shields a heterosexual spouse in this instance.

—Survivor Benefits: Because of the “unmarried” designation of both people, if a partner dies, there is no survivor benefit or a way to draft a document giving the other partner the right to inherit a retirement plan without severe tax consequences.

—Estate Taxes: LGBT couples pay taxes, yet when one inherits property from the other, they pay again. A married person automatically inherits property without paying estate taxes.

—Wills & Power of Attorney: When LGBT partners name each other in wills, or designating power of attorney, their lack of status places them at risk of override via legal challenge by family members.

—Social Security Benefits: Married people receive Social Security payments when a spouse dies. Even though Heterosexual spouses and same-sex couples both pay payroll taxes, only heterosexual spouses are eligible for Social Security survivor benefits.


This brief overview highlights some of the limitations of the legal system to assist same-sex couples and the children they are raising across a broad spectrum of very practical life issues. It raises justice issues that cry out for attention by lawyers and alternative dispute resolution professionals. We must work together to find ways to help same-sex families as they live their lives, raise children together and dissolve their relationships.

I have ideas. Let’s talk.

by Bob O’Connor

Bob O’Connor, Esq. MJuris, MDiv, LLM, is founder of the Institute for Conflict Resolution. He is also a practicing mediator at Conflict Resolution Specialists in Asheville North Carolina. He authored MARITAL SEPARATION AGREEMENTS: A Guide for Non-Lawyer Mediators.