The
federal government now recognizes same-sex marriages as triggering
rights and responsibilities under federal law. However, it still
generally refuses to recognize alternative legal statuses — civil unions
and domestic partnerships — that were created by states to serve as
functional marriages. Even though all the states that created such
alternative policies now permit same-sex couples to marry, this
misguided policy causes ongoing harms. Some same-sex couples who entered
into alternative relationships when marriage was not an option may now
lack the capacity to marry. Couples who have since married may also be
hurt by the federal government’s refusal to recognize civil unions or
domestic partnerships retroactively, even in situations where it is now
recognizing same-sex marriages retroactively.
In an essay that my coauthor, Prof. Deborah Widiss, and I have just posted on SSRN, we argue
that the current federal policy is based on a mindlessly literalist
approach to statutory interpretation that should be repudiated. Federal
law generally looks to state law to determine valid marriages, and the
state laws that created these alternative statuses defined them to be
fully equivalent to marriages in all respects. Couples who enter into
such unions thus make exactly the same legal commitments to each other
that couples who marry make to each other. Just as the federal
government routinely recognizes foreign marriages, even when called
something other than “marriage,” it should recognize state civil unions
or domestic partnerships that are likewise legally indistinguishable
from (other) marriages.