Learn about the important issues of LGBT rights in marriage equality, immigration, and adoption.
Family issues dominate the current discourse over equal rights for LGBT Americans, specifically whether same-sex couples deserve the same rights and responsibilities afforded to heterosexual couples. According to a U.S. General Accounting Office report, more than 1,000 federal benefits are granted to heterosexual married couples, including: Social Security benefits upon the death of a partner, ability to petition for a partner to immigrate to the United States, the ability to take time off to care for an ill partner, and the ability to file joint tax returns as a married couple.
In states and where same-sex couples can enter into marriage and civil unions, they typically have access to most of the state benefits that opposite-sex couples enjoy. They are still ineligible, however, for the federal benefits granted to (opposite-sex) married couples. Additionally, numerous states have adopted constitutional amendments prohibiting same-sex marriage. For more information on specific states' laws, please click here.
A major victory for advocates of equal marriage rights for LGBT Americans came in November 2003, when the Massachusetts Supreme Judicial Court declared that the Massachusetts ban on same-sex marriage conflicted with the state's constitution. In Goodridge v. Dept. of Public Health, the Court concluded that without the right to marry, or the right to choose to marry, one is "excluded from the full range of human experience and denied full protection of the laws."
Since Massachusetts legalized same-sex marriage, several other states have considered same-sex marriage laws. In early 2008, an Iowa court of appeals struck down the state's anti-gay marriage laws; unfortunately, the judge who issued it quickly issued a stay of his ruling in order to allow the Supreme Court to make the final decision. The case is pending.
On October 10, 2008, the Connecticut Supreme Court ruled that denying equal marriage rights to all people, regardless of sexual orientation, violated the state's constitution. In Kerrigan v. the State Commissioner of Public Health, the Court noted that "Interpreting our state constitutional provisions in accordance with firmly established equal protection principles leads inevitably to the conclusion that gay persons are entitled to marry the otherwise qualified same-sex partner of their choice. To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others."
Defense of Marriage Act (DOMA) and Respect for Marriage Act (H.R. 1116/ S. 598)
Passed in 1996, the so-called Defense of Marriage Act (DOMA) defines marriage under federal law as “only a legal union between one man and one woman as husband and wife.” This unconstitutional law targets gays and lesbians for discriminatory treatment under federal law, denying them over 1300 federal protections and responsibilities that would otherwise apply to them once legally married. These federal protections of marriage include Social Security survivors' benefits, family and medical leave, equal compensation as federal employees, and immigration rights, among others.
DOMA also violates the full faith and credit clause of the Constitution, which requires states to recognize the acts and proceedings of other states. This is because DOMA allows one state to simply ignore legal marriages performed in another state if the couple is of the same-sex.
In February 2011, President Obama and his Attorney General, Eric H. Holder, announced that the Department of Justice would no longer defend DOMA in cases challenging its constitutionality. The President sent a letter to House and Senate leaders describing the Department’s reasons for ceasing its defense, and allowing Congress the opportunity to step in and defend the law if it so chooses. The Attorney General was clear in his announcement that the government will continue to enforce DOMA, until either a definitive ruling from the courts that it is unconstitutional, or repeal of the law by Congress. In the meantime, lawfully married same-sex couples will continue to be denied federal recognition and the associated rights and benefits.
The Respect for Marriage Act (H.R. 1116/ S. 598), introduced by Representative Jerrold Nadler (D-NY) and Senator Dianne Feinstein (D-CA), would repeal DOMA, and thus provide married same-sex couples with the full range of federal benefits and protections that the law already provides to married opposite-sex couples.
It would, however, continue to allow states to define marriage for themselves. As before DOMA, and consistent with the Constitution, states would retain the ability to decide which out-of-state marriages to recognize. Nothing in the Respect for Marriage Act forces a state to recognize a valid marriage performed by another state, and nothing in the Act obligates any person, religious organization, locality, or state to celebrate or license a marriage between two persons of the same sex.
Civil Unions and Domestic Partnerships
In December 1999, the Vermont Supreme Court issued a groundbreaking decision in Baker v. State of Vermont that granted gay and lesbian couples the same protections and benefits given to heterosexual couples. The Court ordered the state of Vermont to craft a solution for this situation, which led to the establishment of civil unions. The law allows both Vermonters and non-Vermont residents to acquire a license that certifies their relationship with a person of the same-sex. This license extends the same state benefits of heterosexual marriage to same sex couples, but couples are still ineligible for the more than 1,000 federal benefits of marriage, and their partnership is not recognized by any other state.
Civil unions offering most of the state benefits of heterosexual marriage are now also available to same-sex couples in a number of states. For more detailed information on state laws, please visit the Human Rights Campaign.
Proposition 8 in California
The California Supreme Court ruled on May 15, 2008, that same-sex couples have the right to marry in California. Proposition 8, which amended the California Constitution to define marriage as between one man and one woman, was passed on Nov. 4, 2008 (52-48.) On Aug. 4, 2010, a federal district judge ruled that the same-sex marriage ban in Proposition 8 violated the equal protection provisions of the U.S. Constitution. Enforcement of that decision has been stayed pending appeal. California does not currently allow same-sex marriages to be performed. The 18,000 Same-sex marriages performed before Proposition 8 was passed remain valid.
As of July 2011:
Issues marriage licenses to same-sex couples: Massachusetts, Connecticut, California, Iowa, Vermont, New Hampshire, New York and the District of Columbia
Recognizes same-sex marriages from other states: New York, Maryland
Allows civil unions, providing state-level spousal rights to same-sex couples: Delaware, Hawaii, Illinois, New Jersey, Rhode Island (Note: In Connecticut, Vermont and New Hampshire, same-sex marriage has replaced civil unions.)
Grants nearly all state-level spousal rights to unmarried couples (domestic partnerships):California, Oregon, Nevada, Washington
Provides some state-level spousal rights to unmarried couples (domestic partnerships): Hawaii, Maine, Wisconsin and the District of Columbia
The Federal Marriage Amendment (FMA)
In response to the recognition of same-sex marriages in Massachusetts, Congressional opponents of marriage equality introduced the so-called "Marriage Protection Amendment," also known as the "Federal Marriage Amendment (FMA)." In the 110th Congress, this proposed amendment to the U.S. Constitution attempted to define marriage as being between a man and a woman and ensure that no future court could rule it unconstitutional to deny same-sex couples the rights to civil marriage, thereby effectively banning the recognition of same-sex couples in the United States. The FMA would make permanent the inequality that same-sex couples face by institutionally denying them the government rights heterosexual couples receive. The bill has been defeated in several Congresses.
Uniting American Families Act
United States immigration law is largely based on a premise of family unity. Currently, if an American falls in love with an opposite-sex citizen of another country, he or she can marry that individual and sponsor him or her for United States citizenship. According to the Human Rights Campaign, approximately 75 percent of the one million green cards and immigrant visas issued each year go to family members of U.S. citizens and permanent residents. However, the permanent partners of gay, lesbian, bisexual and transgender Americans are excluded from these definitions of family. Every year, thousands of LGBT Americans in committed relationships with non-American citizens are forced to either live apart from their loved ones or leave the country.
While some aspects of American law have begun to address the validity of committed same-sex partnerships, American immigration law has not advanced same-sex partner immigration benefits. There is no proof of commitment -- financial, religious, or even legality in another country -- that allows a LGBT American citizen or permanent resident to bring his/her same-sex partner over through a legal green card arrangement. Currently, 19 countries (Australia, Belgium, Brazil, Canada, Denmark, Finland, France, Germany, Iceland, Israel, the Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, Switzerland and the United Kingdom) recognize same-sex couples for the purposes of immigration.
The Uniting American Families Act, formerly called the Permanent Partners Immigration Act, would amend the Immigration and Nationality Act (the main code of U.S. immigration law) to allow United States citizens and lawful permanent residents to sponsor their permanent partners for residence in the United States.
There is currently no federal mandate regarding gay and lesbian adoption, and therefore the ability of gay men and lesbians to adopt is affected on a state level by state adoption statutes.
Because adoption regulations are so often tied to marital status, the issue of LGBT adoption is closely tied to civil marriage equality. There is currently no federal mandate regarding gay and lesbian adoption, and therefore the ability of gay men and lesbians to adopt is affected on a state level by state adoption statutes. These statues vary greatly from state to state. According to a report by the Williams Institute, in 2007 there were 270,000 children in the United States who lived with same-sex couples. Of these, one-quarter, or 65,000, were adopted.
There are close to 500,000 young people currently in foster care across the United States, around 120,000 of whom are eligible for adoption every year. Finding homes is not always easy, and as things stand today, nearly 25,000 prospective adoptees will “age out” of the system without a family before the year is through. The current patchwork of discriminatory state laws and policies is denying vulnerable kids access to safe, stable, and permanent homes just because of the sexual orientation or gender identity of the prospective parents.
More than 40 years of research indicates that the optimal development for children is based on the stable attachments to committed and nurturing parents, not on the marital status or sexual orientation of the parents. This research consistently shows that children raised by same sex parents have the same level of emotional, cognitive, social and sexual development outcomes as children raised by straight parents. Research also shows that foster youth who never find a permanent home face a much higher chance of ending up poor, homeless, in jail, and a young parent.
Florida specifically bars the adoption of children by gay and lesbian adults. Similar legislation passed in Utah, prohibiting all unmarried couples, including same-sex couples, from adopting children. Arkansas passed a ballot initiative that made the same argument. The Mississippi legislature passed a bill banning gay and lesbian couples from adoption and forbidding the state of Mississippi from recognizing gay and lesbian adoptions that had previously been granted by other state courts, an unprecedented provision.
Every Child Deserves a Family Act (H.R. 1681)
This issue has become much more important over the last year due to the work of Family Equality Council (www.familyequality.org) and the introduction of the Every Child Deserves a Family Act.
ECDF is a federal bill that restricts federal funding for states employing discriminatory practices in adoption and foster care placements based on the sexual orientation, gender identity, or marital status of the prospective parents or the foster youth. There are an estimated two million additional LGBT people who would consider serving as foster or adoptive parents but currently face barriers. In fact, if ECDF was enacted today, approximately 1000 additional children would move from foster care to adoption annually. That’s a federal saving of approximately $16,700 per child or $16,700,000 per year. It’s also 1000 happier, more productive young citizens. Importantly, the law only deals with public adoptions. ECDF has no impact on private adoptions and religious charities are free to continue operating as they always have as long as they take no government money.
This legislation is modeled on proven existing federal laws like the Multiethnic Placement Act of 1994, which prohibits organizations receiving federal funding from engaging in racial and ethnic discrimination when making placement decisions.