Within the last three months, three states have extended legal recognition to same-sex relationships, bringing to a total of six the number of states that have enacted such legislation in 2011.  The following is a summary of recent developments in this fast-evolving area of the law.

• Delaware Passes Civil Unions Bill (April 2011):  Delaware lawmakers moved quickly to pass a civil unions bill (SB 30) that will allow same-sex couples to enter into a civil union with the same rights, benefits, protections, and responsibilities as married persons under Delaware law.  Originally introduced in March 2011 and passed just one month later, the new law will also treat same-sex legal unions validly formed in another jurisdiction as civil unions, regardless of whether the relationship is referred to as a civil union.  Under the Delaware law, civil unions are valid only when solemnized, and religious institutions will have the right to refuse to solemnize such unions.  The law will go into effect January 1, 2012
• New York Passes Same-Sex Marriage Bill (June 2011):  By a narrow margin, the Republican-controlled New York Senate gave final approval to a bill permitting same-sex marriage on June 24, 2011 (AB 8354), reversing its December 2009 rejection of a similar bill.  Referred to as the Marriage Equality Act, the bill explicitly states that it is the intent of the legislature that the marriage of same-sex and different-sex couples be treated equally in all respects under state law.  However, the bill does contain an exemption for religious organizations.  Governor Andrew Cuomo (D) signed the bill into law just before midnight on June 24th, and it is set to take effect in 30 days.  New York is the sixth state, and the most populous, to permit same-sex marriage.  Stay tuned for a Littler ASAP on this important development.
• Rhode Island Passes Civil Union Bill (June 2011):  After conceding there was not enough support for a same-sex marriage bill, state lawmakers introduced a civil unions bill in early May 2011.  On June 29, 2011, lawmakers officially approved the bill as one of the last acts of the legislative session.  House Bill 6103 declares that parties to a civil union shall have the same rights, benefits, protections, and responsibilities as married spouses.  Same-sex civil unions or substantially similar legal relationships entered into in another jurisdiction will be recognized in Rhode Island as a civil union.  Additionally, the bill provides broad exemptions that will allow religious institutions to refuse to certify a civil union.  Governor Lincoln Chafee signed the bill on July 2, 2011, and it will take effect immediately.

Three Other States Enhance Civil Union or Domestic Partnership Laws in 2011

• Hawaii:  In February 2011, Hawaii enacted legislation (SB 232) recognizing civil unions, conferring all the same rights, benefits, protections and responsibilities under law as are granted to married persons, and recognizing unions performed in other jurisdictions.  The Hawaii civil unions law applies to both same-sex and opposite-sex couples and takes effect January 1, 2012.  Under a reciprocal beneficiary law enacted in 1997, Hawaii had previously permitted two adults who were unable to marry to register as reciprocal beneficiaries and receive some rights and benefits otherwise only available to married couples. 
• Illinois: Also in February, Illinois enacted the Illinois Religious Freedom Protection and Civil Union Act (SB 1716), which became effective on June 1, 2011.  The law extends to same-sex or opposite-sex persons entering into a civil union the obligations, responsibilities, protections and benefits afforded to spouses under state law, and grants recognition to same-sex marriages, civil unions or substantially similar relationships legally entered into in another jurisdiction.  For more information, please see the Littler ASAP, Illinois Enacts Civil Union Law with Broad Implications for Employers.
• Washington:  In March 2011, Washington state passed legislation (HB 1649) amending the state’s domestic partnership law (originally enacted in 2007 and expanded in 2009) to recognize same-sex marriages from other jurisdictions as domestic partnerships under Washington law.  Previously, state law recognized domestic partnerships from other states but expressly barred recognition of same-sex marriages.  The law is set to go into effect on July 22, 2011.

Status of Same-Sex Marriage and Domestic Partnership Laws

Currently six states – Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and New York – as well as the District of Columbia perform same-sex marriages.  Four other states – California, Washington, Nevada and Oregon – and the District of Columbia have domestic partnership laws, and New Jersey, Illinois and Rhode Island now have civil unions laws, conferring on parties to such relationships all of the legal rights and responsibilities of spouses.  On January 1, 2012, Delaware and Hawaii will join in the list of states that recognize civil unions.  Four additional states – Maine, Colorado, Maryland and Wisconsin – have domestic partnership laws extending limited rights and protections to domestic partners.  

When Connecticut, New Hampshire and Vermont passed same-sex marriage laws, they ceased allowing civil unions.  Vermont continues to recognize pre-marriage law civil unions as valid, while Connecticut and New Hampshire converted their civil unions into marriage. 

Has Same-Sex Marriage Made Domestic Partnerships Obsolete in the Workplace?

A primary reason for extending recognition to domestic partnerships has been to grant rights and benefits to same-sex couples who cannot legally marry.  With the expansion of same-sex marriage, some employers are considering whether to require employees to marry their domestic partner as a condition of offering them spousal-type benefits.  For several reasons, however, domestic partnerships are likely to continue to be recognized in the workplace.  Same-sex marriage is permitted in only six states, and it could be burdensome and impractical for employers to require employees to travel to those states to marry.  Conditioning benefits on marriage could also be perceived as coercive and an invasion of employees’ privacy, as well as effectively a reduction in their compensation.  Further, there may be little administrative advantage to employers.  Because same-sex marriage is not currently recognized under federal law (due to the Defense of Marriage Act), the federal tax treatment of same-sex spouses is exactly the same as the federal tax treatment of domestic partners.  Finally, legal recognition for people who cannot marry is not the only rationale for domestic partnership laws.  As witnessed in the new Illinois and Hawaii civil union legislation, some jurisdictions permit opposite-sex domestic partnerships, and many employers have extended benefits to opposite-sex domestic partners, notwithstanding the fact that they can marry.  These jurisdictions and employers recognize committed relationships, regardless of sex, as an alternative to marriage between individuals who, for whatever reason, choose not to marry.