Property Law Developments—Joseph William Singer

Hawai’i came close to recognizing same-sex marriages in a 1993 decision called Baehr v. Lewin, 852 P.2d 44, 59 (Haw. 1993), in which the court held that denying individuals the freedom to marry others of the same sex presumptively constituted sex discrimination in violation of the equal protection clause of the Hawai’i Constitution. However, that route is now closed by a state constitutional amendment. Haw. Const. art. 1, §23. A similar decision in Alaska, Brause v. Bureau of Vital Statistics, 1998 WL 88743 (Alaska Super. Ct. 1998), was similarly preempted by constitutional amendment. S.J. Res. 42, 20th Leg., 2d Legis. Sess. (Alaska 1998) (passed Nov. 3, 1998).

The Supreme Court of Vermont held, in Baker v. State of Vermont, 744 A.2d 864 (Vt. 1999), that the “common benefits” provision of the Vermont Constitution requires the state to grant same-sex couples the legal incidents of marriage, whether or not the state chooses to call such relationships “marriages.” Implementing this constitutional mandate, the Vermont legislature passed and the Governor signed a bill allowing “civil unions” but not “marriages” between same-sex partners. See Vt. Stat. tit. 15, §§1201-1206. Although there is no residency requirement to enter a civil union, there is a one-year residency requirement to bring a court action to dissolve a civil union. Connecticut also passed legislation authorizing civil unions for same sex couples. Conn. Pub. Act 05-10 (Jan. 2005), 2005 Ct. S.B. 963, 2005 Conn. Legis. Serv. P.A. 05-10 (S.S.B. 963) (WEST). California and New Jersey passed domestic partnership legislation that allow the creation of legal relationships that entail most but not all the rights and obligations associated with marriage. Cal. Fam. Code §§297–299.6; N.J. Stat. §26:8A–1 to –12. New Jersey subsequently passed a civil union statute after the New Jersey Supreme Court ruled in Lewis v. Harris, 908 A.2d 196 (N.J. 2006), that same-sex partners are constitutionally entitled to the same rights as opposite-sex couples. N.J. Stat. §37:1-28 to 1-36. Civil unions or domestic partnerships in some form for same-sex couples are now recognized in some form in California, the District of Columbia, Hawaii, Maine, Maryland, Oregon, New Hampshire, New Jersey, Vermont and Washington.

On November 18, 2003, the Massachusetts Supreme Judicial Court held in the case of Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2004), that barring individuals from marrying each other solely because they were of the same sex violated the state constitutional guarantees of liberty and equality. Chief Justice Margaret Marshall wrote that the “Massachusetts Constitution affirms the dignity and equality of all individuals” and that “[i]t forbids the creation of second-class citizens.” Id. at 948. See also Opinion of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004) (confirming that granting same-sex couples the right to civil unions but not civil marriage would violate the state constitution because it would confer a kind of second-class status to such couples). The Commonwealth of Massachusetts had defended limiting marriage to male-female couples on the grounds that marriage provided a favorable setting for procreation, that it ensured the optimal setting for child rearing, and that it preserved scarce state resources. The court found none of these goals constitutionally adequate, given the fact that child rearing often occurs outside traditional marriages and that the ability to procreate was never a prerequisite to marriage. It gave the legislature six months to alter the marriage laws in a manner consistent with its opinion. When that did not happen, same-sex couples began marrying in Massachusetts on May 17, 2004.

In 2008, by closely divided 4-3 votes, the Supreme Courts of California and Connecticut held that their state constitutional rights to equal protection of the laws grant same-sex couples the same right to marry as is enjoyed by opposite-sex couples. In re Marriage Cases, 183 P.2d 384 (Cal. 2008); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008). The Connecticut Supreme Court held that legal classifications based on sexual orientation are subject to intermediate scrutiny as a quasi-suspect classification while the California Supreme Court held that they are subject to strict scrutiny. The California court further held that the right to marry is a basic civil right whose denial impinges upon same-sex couples’ fundamental privacy interests in having official family relationships accorded equal respect and dignity and that no compelling state interest justified the differential treatment of same-sex and opposite-sex couples. Both courts ruled that that existing statutory provisions recognizing civil union or domestic partnership arrangements for same-sex couples were not equivalent to laws recognizing opposite-sex civil marriages. Accord, Opinions of the Justices, 802 N.E.2d 565 (Mass. 2004)(civil unions not equivalent to civil marriages). However, the California decision was overturned on November 4, 2008 when the voters approved Proposition 8 amending the California Constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Const. art. I, § 7.5 (added Nov. 4, 2008). Litigation is proceeding to determine whether this constitutional amendment retroactively invalidates the 18,000 same-sex marriages that took place in California between the time when the marriage right was extended to same-sex couples and the date when the marriage right was revoked. In contrast, same-sex couples began marrying in Connecticut on November 12, 2008.

As of May 14, 2009, in addition to Massachusetts and Connecticut, the states of Iowa, Maine, New Hampshire, and Vermont also now recognize same sex marriage. The Iowa Supreme Court ruled on April 3, 2009 that denial of the right to marry someone of the same sex violated the equal protection clause of the Iowa Constitution. Varnum v. Brien, 2009 WL 874044 (Iowa 2009). And on April, 7, 2009, without prompting by a court, the Vermont legislature passed a statute recognizing same-sex marriage, overriding the Governor’s veto. That law took effect on September 1, 2009. 2009 Vt. Act 3; 2009 Vt. S. 115. Maine Governor John Baldacci signed a same-sex marriage bill passed by the legislature on May 6, 2009,  2009 Me. Laws 82, and Governor John Lynch signed such a law for the state of New Hampshire on June 3, 2009, 2009 N.H. Laws ch. 59. The Maine statute was repudiated and overturned by the voters on Nov. 3, 2009, again making same-sex marriage unlawful in Maine.

Same-sex marriage is recognized in Belgium, Canada, The Netherlands, Norway, South Africa, Sweden, and Spain. Civil partnerships with nearly the same legal status as marriage are recognized in Iceland, and the United Kingdom.