Developments in the U.S. - the Struggle Over the Creation of a Status for Same-Sex Partners

18 Pages Posted: 29 Oct 2005

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Abstract

The United States is unusual for a federal system in that marital status is determined for many purposes based on state law, not federal law. This historically has not been very important because there has been general agreement about marriage rules. Neither polygamous nor gay marriage was accepted. During the past few years, however, the consensus about gay status has broken down. Massachusetts permitted gay marriage in 2004, and three other states (California, Connecticut, and Vermont) now permit a gay status that is the equivalent of marriage.

This has created the issue of whether other states will recognize a Massachusetts gay marriage or the status equivalent available in California, Connecticut and Vermont. Massachusetts will not let gay non-residents marry; in the other three states, though, non-residents may establish a gay status. This lack of a residency requirement has further complicated the issue of gay status recognition.

Gay status questions can arise in three situations. First, residents of a state that does not recognize a gay status could go to California, Connecticut or Vermont, establish a status, and then return to the state of residence. (This is referred to as an evasive status.) Second, residents of a state that permits a gay status could establish a status in their state of residence and then later move to a state that does not accept one. (This is referred as a migratory status.) Third, parties who establish a gay status in their state of residence may never move, but may need the status recognized in another state (that does not recognize a gay status) for some purpose. (This is sometimes called a visitor status.)

Gay status has been very controversial in the U. S. Many states have passed laws providing that the state should not recognize a gay status established elsewhere. This paper discusses how it is unlikely that a state will recognize an evasive status, particularly if the state has passed a law expressly disapproving of a gay status. The recognition of a visitor status seems the most likely. Migratory status recognition is the most unclear issue. At the present time, it appears that states will not recognize a migratory status, if that state has enacted a law expressly disapproving of a gay status.

Suggested Citation

Oldham, J. Thomas, Developments in the U.S. - the Struggle Over the Creation of a Status for Same-Sex Partners. Available at SSRN: https://ssrn.com/abstract=838644 or http://dx.doi.org/10.2139/ssrn.838644

J. Thomas Oldham (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

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