Same-Sex Couples and Marriage: Model Legislation for Allowing Same-Sex Couples to Marry or All Couples to Form a Civil Union
By Jennifer C. Pizer and Sheila James Kuehl
A “Model Marriage Code” and a “Model Civil Union Code” will ensure greater consistency, predictability, and completeness among state laws offering protections to same-sex couples and their families. They also will reduce confusion when separate state rules governing same-sex and different-sex couples affect employers, businesses, government and other institutions.
Currently, nineteen states and the District of Columbia offer same-sex couples either marriage or a non-marriage, alternative status – or both, providing legally recognized partnership options for more than 40 percent of the U.S. population and nearly 50 percent of same-sex couples. However, the limitations and inconsistency among state laws cause unnecessary confusion and vulnerability for couples and families whose rights are at stake. Likewise, the current state-law patchwork creates difficulties for businesses that face additional burdens due to the diverse proliferations of family law statuses for same-sex couples. Businesses across the country are impacted when employees have difficulties knowing the legal and financial consequences of a proposed job transfer. In addition, variations in state insurance, taxation and other laws make employee benefit plans more complicated. State and municipal officials also encounter confusing questions due to the variations in nomenclature and corresponding rights and obligations of residents when the state uses different systems for same-sex and for different-sex couples. When residents have a legal status conferred by another state, especially one with unfamiliar legal consequences, the questions can be still more complex.
At present, eleven state legislatures could act to allow same-sex couples to marry. In seven more states, constitutional amendments preclude legislation opening marriage to same-sex couples but permit legislation framing an alternative system through which couples can access comprehensive protections and obligations under state law.