State Law Decisions Regarding Same-Sex Marriage and Related Issues

Updated 4/12/04

Alabama: In re: H.H., 830 So. 2d 21, 26 (Ala. 2002) (“homosexual conduct of a parent – conduct involving a sexual relationship between two persons of the same gender – creates a strong presumption of unfitness that alone is sufficient justification for denying that parent custody of his or her own children or prohibiting the adoption of the children of others”) (Moore, J. concurring);

Alaska: Brause v. Bureau of Vital Statistics, 1998 WL 88743 (Alaska Sup. Ct, 1998) (Court ruled that state needs a compelling interest to refuse to recognize same-sex marriage, but this case was overruled by constitutional amendment);

Arizona: Standhardt v. Superior Court ex rel County of Maricopa, 77 P.3d 451 (Ariz. App. 2003) review denied (2004)(no fundamental right to same-sex marriage);

Arkansas:

California:

Colorado: Adams v. Howerton, 673 F.2d 1036 (9th Cir.), cert. denied, 458 U.S. 1111 (1982) (male America citizen and male Australian alien who had been ceremonially “married” by a minister in Colorado does not qualify alien as citizen’s spouse);

Connecticut: Rosengarten v. Downes, 802 A.2d 170 (Conn. App. Ct.), cert. granted in part but dismissing case as moot upon death of the party, 806 A.2d 1066 (Conn. 2002) (a Vermont civil union is not “marriage” recognized under this state because the union was not entered into between one man and one woman);

Delaware:

District of Columbia: Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995) (marriage statute prohibited clerk from issuing license to same-sex couple and same-sex marriage is not a fundamental right protected by the Due Process Clause);

Florida: Frandsen v. County of Brevard, 800 So. 2d 757, 759, 760 (Fla. 5th DCA 2001), rev. denied, 828 So. 2d 386 (Fla. 2002) (classifications based on sex are not subject to strict scrutiny, noting that the Constitution Revision Commission refused to add the term “sex” to the Florida constitution so as to avoid any possibility that Florida courts might conclude the provision required recognition of same-sex marriages);

Georgia: Burns v. Burns, 560 S.E.2d 47 (Ga. App.), reconsideration denied, cert. denied (2002) (a Vermont civil union is not marriage, and even if it were, Georgia would not recognize it as such, because the state authorizes only the union of one man and one woman and prohibits same-sex marriage);

Hawaii: Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), aff’d, 950 P.2d 1234 (Haw. 1997) (authorizing strict scrutiny for marriage classifications but decision was overruled by constitutional referendum);

Idaho:

Illinois: In re Estate of Hall, 707 N.E.2d 201, 206 (Ill. App. 1998) (challenge to statute proscribing same-sex marriage was moot and petitioner was never legally married – “We cannot retroactively redefine petitioner and Hall’s relationship as a lawful marriage or even confer the benefits of a legal marriage upon the relationship. If we did, we would essentially be resurrecting common law marriage . . .”;

Indiana: Morrison v. Sadler, 2003 WL 23119998 (Ind. Super. Ct.) cert. denied (2003) (dismissing challenge to Indiana’s DOMA which limits marriage to one man and one woman) <www.marriagewatch.org/cases/in/morrison/morrison.htm>;

Iowa:

Kansas: In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002) (a post-operative male-to-female transsexual is not a woman within the meaning of the statutes recognizing marriage, and thus a marriage of a male-to-female transsexual to another male is void);

Kentucky: Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973) (a same-sex union is not recognized as marriage);

Louisiana:

Maine:

Maryland: Jennings v. Jennings, 315 A.2d 816, 820 n.7 (Md. Ct. App. 1974).

Massachusetts: Goodrich v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (Mass. 2003) (first court to sanction same-sex marriage); Albano v. Attorney General, 769 N.E.2d 1242 (Mass. 2002) (initiative for constitutional amendment banning same-sex marriage permissible);

Michigan:

Minnesota: Baker v. Nelson, 191 N.W.2d 185, 186, 187 (Minn. 1971) (upholding statute which does now authorize marriage between persons of the same sex, stating “The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis” and recognizing “there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.”);

Mississippi:

Missouri:

Montana:

Nebraska:

Nevada:

New Hampshire:

New Jersey: M.T. v. J.T. 355 A.2d 204 (N.J. App. 1976) (male transsexual who underwent sex reassignment surgery may be considered female for marital purposes); In re Bacharach, 780 A.2d 579 (N.J. App. 2001) (change of name to include last name of same-sex partner was not for an inappropriate purpose); Lewis v. Harris, 2003 WL 23191114 (N.J. Sup. Ct. 2003) (unpublished)(New Jersey is not requried to allow same-sex marriage).

New Mexico:

New York: Anonymous v. Anonymous, 325 N.Y.S.2d 499 (N.Y App. Div. 1971) (a marriage between two males was a nullity notwithstanding that “husband” believed “wife” was a female at the time of the ceremony, and notwithstanding that “she” had subsequent sex surgery); Storrs v. Holcomb, 645 N.Y.S.2d 286 (N.Y. App. Div. 1996) (“same-sex marriage . . . is not presently recognized under the laws of any state of the Union”, the “long tradition of marriage, understood as the union of male and female, testifies to a contrary political, cultural, religious and legal consensus [opposed to same-sex marriage] concluding that New York does not recognize or authorize same-sex marriage and that the City Clerk correctly refused to issue the license.”); In re Estate of Cooper, 564 N.Y.S.2d 684, 688 (N.Y. Fam. Ct. 1990) (“the state has a compelling interest in fostering the traditional institution of marriage ( whether based on self-preservation, procreation, or nurturing and keeping alive the concept of marriage and family as a basic fabric of our society), as old and as fundamental as our entire civilization, which institution is deeply rooted and long established in firm and rich societal values” and thus same-sex marriage is not authorized);

North Carolina:

North Dakota:

Ohio: In re Bonfield, 780 N.E.2d 241 (Ohio 2002) (cohabiting same-sex partner of biological mother was not a “parent”); In re Ladrach, 513 N.E.2d 828 (Probate Court 1987) (“There is no authority in Ohio for the issuance of a marriage license to consummate a marriage between a post-operative male-to-female transsexual person and a male person”); In re Nash, 2003WL23097095 (Ohio App. 11 Dist., Dec 31, 2003) (public policy in Ohio prohibited post-operative female-to-male transsexual from marrying female);

Oklahoma:

Oregon:

Pennsylvania: De Santo v. Barnsly, 476 A.2d 952 (Pa. Super. Ct. 1984) (two persons of the same sex cannot contract a common-law marriage);

Rhode Island:

South Carolina:

South Dakota:

Tennessee:

Texas: Littleton v. Prange, 9 S.W.3d 223 (Tex. App. 1999), cert. denied, 531 U.S. 870 (2000) (ceremonial “marriage” between a man and a transsexual born as a man, who was surgically and chemically altered to have the physical characteristics of a woman, is not valid);

Utah:

Vermont: Baker v. State, 744 A.2d 864 (Vt. 1999) (holding that while the Vermont constitution requires that same-sex couples be afforded the same benefits of traditional marriage, the constitution does not require the state to issue a same-sex marriage license);

Virginia:

Washington: Singer v. Hara, 522 P.2d 1187, 1192 (Wash. App. 1974) (statutory prohibition of same-sex marriage does not violate state constitution).

West Virginia:

Liberty Counsel is not responsible for errors or omissions herein. Consult with a competent attorney regarding applying the laws to specific situations.