Beginning in the 1970s, same-sex couples in the United States began to seek recognition for their coupled status from employers, businesses, landlords, and the government. A similar movement began at about the same time in Western Europe, and by the 1980s, the issue had spread to South America, Australia, Israel, and New Zealand. Same-sex couples in South Africa began to look for legal recognition from the postapartheid government in the 1990s, as did couples in some of the postcommunist states in Eastern Europe.
The emergence of this issue is a natural consequence of social developments making it more possible than previously for lesbians and gay men to live openly and establish households together. Principal among those developments has been the demise of sodomy laws penalizing homosexual sex acts, and the social disapprobation they reflected, which had provided strong incentives for lesbians and gay men to conduct their lives in a way that would hide their sexual orientation from public disclosure. Until 1962, private acts of consensual sodomy between adults were serious criminal violations in every state, but beginning in that year states began to decriminalize consensual adult sodomy as they adopted the Model Penal Code. By the time the Supreme Court rejected a constitutional challenge to a sodomy law in Bowers v. Hardwick, 478 U.S. 186 (1986), about half of the states had decriminalized, mostly through legislation, in a few cases through court invalidation. In 2003, the process was completed when the Supreme Court ruled in Lawrence v. Texas, 539 U.S. 558, that laws penalizing private, consensual adult sexual acts violate the due process clause.
The sodomy laws were a formal corollary of widespread moral disapproval of homosexual conduct and the resulting social stigma characteristic of American society for much of our history. By the early part of the twentieth century, this began to abate as the concept of homosexual orientation gained greater currency and some medical authorities began to argue that such an orientation was due to factors other than the free choice of the actor. A mental illness construction of homosexuality became the dominant mode of discussion by the time of World War II, when U.S. military authorities, considering homosexuality to be a symptom of mental instability, instituted methods to weed out homosexuals from among potential recruits and draftees. This medicalization of homosexuality reached its high point in American law with the 1954 enactment of an immigration exclusion that described homosexuality, based on the testimony of the Public Health Service, as ‘‘psychopathic personality,’’ and authorized Public Health officers to ‘‘diagnose’’ homosexuals as a prerequisite to excluding them from admission to the United States.
When the American Law Institute voted in 1955 to recommend that consensual sodomy carried out in private by adults not be subject to criminal penalties, part of its rationale was that symptoms of illness should not be criminalized. Supreme Court Justice William O. Douglas reflected this view in his dissent in Boutilier v. Immigration & Naturalization Service, 387 U.S. 118 (1967), in which the Court rejected a constitutional challenge to the exclusionary policy. By then, the statute had been amended to clarify that it applied to those ‘‘afflicted’’ with ‘‘sexual deviation.’’ But events were already transpiring to undermine the mental illness model. Publication of the ‘‘Kinsey Reports’’ on human sexuality in the immediate post– World War II period shook the public view that homosexuality was a phenomenon affecting insignificant numbers, as Kinsey asserted that a substantial minority of the population engaged in homosexual conduct at some point in their adult lives, and at least 10 percent for some sustained period of years. Then Dr. Evelyn Hooker published psychological research showing that a group of gay men and a control group of self-described heterosexual men did not differ in their responses to standard psychological tests, even though psychologists had confidently used such tests in the past to ‘‘diagnose’’ homosexuals. By the 1960s, voices had emerged in the medical literature arguing that the mental illness model was defective, and the American Psychiatric Association voted in the 1970s to remove ‘‘homosexuality’’ from its Diagnostic and Statistical Manual (DSM), the profession’s official list of mental illnesses. The American Psychological Association followed, and soon the American Bar Association had approved a resolution calling for the repeal of criminal sodomy laws.
The eruption of a publicly visible movement for lesbian and gay rights at the end of the 1960s, supplanting what had been a small, secretive gay rights movement begun after World War II, also contributed to changes in social attitudes, as gay ‘‘spokespeople’’ appeared on television and were quoted in the press, marched in annual Gay Pride Parades in major cities, and began lobbying municipal governments to amend their civil rights laws to include ‘‘sexual orientation’’ as a prohibited ground for discrimination. The first such laws were passed in the mid to late 1970s, and state laws followed in the 1980s. By the time of the Lawrence decision in 2003, more than a dozen states, including the largest by population, California, had banned such discrimination, as had most of the nation’s largest cities.
These legal and political changes were mirrored in the personal lives of gay people, as more and more found it possible to be open about their sexuality to family, friends, and coworkers. Under such circumstances, cohabiting with a same sex partner became increasingly viable. The 2000 national census, the first to make a determined effort to gather data about cohabiting nonmarital partners, discovered several hundred thousand households comprising biologically and legally unrelated same-sex partners, dispersed throughout virtually every census district in the nation.
In the new social era of sodomy law reform and civil rights protection, same-sex couples began to be more open about their existence and the ability to live openly in same-sex relationships without incurring severe social and possible criminal sanctions fueled a movement for social equality. Some sought same-sex marriage legalization, and litigation seeking marriage licenses began in the 1970s. More commonly, however, beginning in the 1970s same-sex partners sought legal recognition for their relationships in the context of particular instances of inequality or unfairness where existing social and legal arrangements came together to disadvantage them.
Such disadvantage stems from the presumption underlying our traditional social and legal framework that the legally married couple is the basic social unit, and institutions evolved around that presumption. Population trends show that the presumption is shaky, inasmuch as a substantial portion of the heterosexual population is unmarried, some living with opposite sex partners and many living as singles. In many cases, unmarried partners or single individuals are also raising children. Households headed by married opposite sex couples constitute the largest demographic category, but the other categories are substantial, and family diversity became a ubiquitous characteristic of late twentieth-century America.
But the law’s adjustment to these circumstances has been halting, not least due to strong moral objections to recognizing nonmarital partners by religious conservatives and the perception of legislators that the large religious voting blocs would refuse to support politicians who favored revising the laws to accommodate nontraditional families. Both the public and the private sector traditionally treat the married couple as the norm, imposing obligations and according rights and privileges with the expectation that such couples function as a single economic and social unit. (Indeed, for much of our history the legal entity of the married couple was assigned the husband’s identity, and the wife’s status was merged into the husband’s.) When Congress was debating the Defense of Marriage Act in 1996, some members requested the Congressional Research Service to compile a list of all places in the federal statutes and regulations that invoke marriage as a qualification or basis for a right or obligation, and the resulting list exceeded 1,300 items. The implications of marriage under state laws generate hundreds of similar references. And, of course, marriage has many consequences outside the statutory law, as reflected in voluntary policies adopted by businesses and nonprofit organizations, and social attitudes held by the population at large.
As more same-sex couples began to live together, legal issues emerged in specific instances. For example, in New York City, where gay men were hit hard by acquired immune deficiency syndrome (AIDS) in the early 1980s, lack of recognition for same-sex partners generated hardships and litigation. Hospitals excluded all but legal spouses and close relatives from visiting patients in intensive care units, so AIDS patients were excluded from contact with their partners (and vice versa) at critical times when contact was crucially important. Medical personnel refused to recognize the interest of a partner in being briefed about the patient’s condition or participating in treatment decisions, where a spouse would be briefed and consulted. There were cases in which patients died and their partners were not notified (as a spouse automatically would be). Struggles ensued between legal family members and partners for access and control, even over rights to participate in funeral and memorial services and burial decisions. It is not surprising that the right most often accompanying domestic partnership registration, at the insistence of gay community lobbyists, was for spousal recognition of registered partners by hospitals.
In New York City, the lack of legal partner recognition caused serious hardship for surviving partners living in rent-regulated apartments at a time of tight housing and upward pressure on rents. Landlords were eager to reclaim vacated apartments, because substantial rent increases were authorized for vacancy turnovers. From early in the AIDS epidemic there were cases in which people died from AIDS and their surviving partners were threatened with eviction, in some cases from apartments where they had lived for years without having formal recognized tenant status. A state regulation provided that family members were entitled to succeed to the leasehold when a tenant in a rent-controlled apartment died, but landlords argued that surviving partners did not qualify. Litigation ensued, and the New York Court of Appeals ruled in Braschi v. Stahl Associates Company, 543 N.E.2d 49 (1989), that the family protection regulation should be interpreted to include financially and emotionally interdependent unmarried adult partners. This was possibly the first appellate ruling anywhere to provide legal recognition for same-sex unions, and it was soon codified by the state agency responsible for enforcing housing rights into regulations specifying eligibility standards for family recognition.
AIDS was not the only disaster that could generate problems for same-sex partners. A Minnesota couple, Sharon Kowalski and Karen Thompson, encountered difficulties when Sharon was rendered quadriplegic in a 1983 automobile accident. Although Sharon and Karen lived together and had celebrated a commitment ceremony, exchanged rings, and were considered a couple in their small college community in St. Cloud, Minnesota, they were not open about their relationship with Sharon’s parents, conservative rural residents who thought Karen was Sharon’s landlord. Sharon’s father, who rejected the idea that Sharon was a lesbian and that Karen was her partner, was appointed guardian. The ensuing struggle between parents and same-sex partner lasted until 1992, and for a period of five years, Karen was barred from any contact with Sharon while Sharon’s father exerted total authority. It was not until 1991 that the Minnesota Court of Appeals ruled in In re Guardianship of Sharon Kowalski, 478 N.W.2d 790, that Sharon and Karen comprised a ‘‘family of affinity which ought to be accorded respect,’’ and Karen was appointed as guardian for Sharon in place of her father. Had Sharon and Karen been in a legally recognized relationship, years of emotional suffering might have been avoided, and there is evidence to suggest that Sharon’s treatment and recovery were compromised by the battle between her parents and her partner.
Disputes over child custody and visitation provide another arena where the lack of legal recognition for same-sex unions became increasingly problematic. Beginning in the 1980s, it was increasingly common for same-sex partners to be raising children, either through adoption or through donor insemination in the case of lesbian couples or surrogacy in the case of gay male couples. Most reported legal disputes concerning custody and visitation arose from the breakup of lesbian relationships, when the birth mother wanted to sever not only her own ties with her former partner but her children’s ties as well. In the typical case, the same-sex partner was a full participant in the decision to have children, assisted and was supportive through pregnancy, was present at birth, and served an equal role as mother during the child’s early years. (There were cases in which the partner who became pregnant was the one with the more prestigious job and better health insurance coverage, who then would return to work after giving birth leaving the other partner, referred to as a coparent, to be the main daily caretaker of the child.) Although some relationship breakups were amicable and coparents were allowed to maintain ties through visitation agreements, sometimes the opposite was the case and litigation ensued when a coparent sought joint custody or at least the right of regularly scheduled visitation.
Victories for lesbian coparents in such cases were scarce at first, because statutory and common law governing custody and visitation has evolved to shelter legal parents from claims by intermeddling relatives and unrelated third parties, typically limiting the right to seek visitation to legal spouses, adoptive parents, or persons with a close biological relationship to the child. Cases from many states show loving parents unable to maintain contact with children for whose birth they planned, and in whose early lives they played a part, cut off by a former partner who wished to make a new life free from entanglements of the old. A prime example is Alison D. v. Virginia M., 572 N.E.2d 27 (1991), in which New York’s highest court labeled the coparent as a ‘‘legal stranger’’ who lacked standing to seek visitation, regardless of whether the child’s best interest might be advanced by maintaining their relationship.
One solution would be to allow the coparent to adopt the child, but adoption statutes typically state that former parental rights are extinguished on an adoption. Thus, the birth mother would have to give up her parental rights to allow her same-sex partner to adopt. The only statutory exception in many jurisdictions was for adoption by a stepparent. Thus, when a mother remarried, her new husband could adopt her children without affecting her own parental rights. But if the children’s birth father were still alive, his consent would be required unless his own parental rights were previously terminated, and his rights would be extinguished on an adoption. Under this legal regime, a child cannot have two fathers or two mothers. Many courts were reluctant to find exceptions to these standard practices without specific legislative guidance, and legislators proved unwilling to deal with the politically volatile topic of adoption of children by gay adults. (Indeed, the only state legislation directly on point, adopted in New Hampshire and Florida, specifically prohibited adoption by gay people. The New Hampshire law was subsequently repealed. The Florida law was challenged numerous times in court, but has withstood challenge numerous times, even after the Supreme Court’s Lawrence v. Texas decision appeared to make the law quite vulnerable.) The issue is politically volatile because a substantial portion of the population continues to believe that homosexuality is a learned behavior and that a child will not be able to make an appropriate psychological adjustment to being raised by a gay parent. Many continue to believe that individuals become ‘‘homosexuals’’ as a result of seduction by gay adults. If same sex partners dissolved their relationship but the coparent was an adoptive parent of their child, of course, the adoptive parent would continue to have standing to seek joint custody or a visitation schedule. Furthermore, the adoption would cement a legal tie, albeit indirect, between the same-sex partners as legal parents of the same child.
However, toward the end of the twentieth century, courts began to perceive the disadvantage to children stemming from lack of ability of their coparent to adopt and the lack of standing for coparents to seek joint custody or visitation after a same sex relationship breaks up. There are now several states, including New York—Matter of Jacob, 86 N.Y.2d 651 (1995)—and California—Sharon S. v. Superior Court of San Diego County, 73 P.3d 554 (Cal. 2003)—where the highest court has found that the adoption statutes can be construed to allow a same sex coparent to adopt a child without affecting the other parent’s continuing legal status. And there are several states (such as Massachusetts, E.N.O. v. L.M.M., 711 N. E.2d 886 [Mass. 1999], and New Jersey, V.C. v. M.J. B., 725 A.2d 13 [N.J. 1999]) that have found ways to accord standing to coparents to seek visitation, even when they had not been able to adopt before the break-up of the relationship. Furthermore, in Vermont, California, and Connecticut, state laws creating special legal statuses for registered same-sex partners now authorize joint adoptions and confer standing to seek visitation after a relationship terminates. However, in much of the United States the traditional legal stance prevails as to both of these issues, and there are jurisdictions in which only one of these solutions is available. For example, an Illinois appellate court ruled in In re Adoption of A.W., J.W., and M.R., Minors, 796 N.E.2d 729 (2003), that a coparent can seek to adopt, but if the relationship breaks up before adoption is finalized, the coparent cannot seek visitation, because she is still considered to be a legal stranger rather than a de facto parent by virtue of her actual experience with the child.
Under existing principles of tort law, if a person is the victim of negligence under circumstances where their spouse is also in the zone of danger or directly observes the incident, the spouse can maintain an action for infliction of emotional distress. If the incident deprives a spouse or child of the injured or defunct spouse’s marital services, then the perpetrator may be held liable for loss of consortium. If a person dies as the result of another’s negligence, a surviving spouse or child can sue for wrongful death and seek compensation for the ensuing financial losses. All of these legal rights stemming from injury to a spouse may not be available to a same-sex partner whose relationship is not recognized under the law. There is scant legal authority for extending such rights, apart from the Vermont Civil Union Act and provisions of the California Domestic Partnership Code. The California Code embraces legislative proposals stemming from a gruesome incident in San Francisco where a woman was mauled to death by a pair of pit bulls and her surviving same-sex partner sought to hold the caretaker of the dogs liable in negligence for wrongful death. Although there was contrary authority under state law, a trial judge found that she should be accorded standing in a case that was much debated in the press, drew expressions of support from the City Council, and eventuated in state legislation extending the right to sue for wrongful death to registered domestic partners. A New York trial court ruled in Langan v. St. Vincent’s Hospital, 765 N.Y. S.2d 411 (Nassau County Sup. Ct. 2003), appeal pending, that a man could sue a New York hospital for medical malpractice on the death of his same-sex partner, although this ruling was premised on the prior Vermont civil union ceremony having created a ‘‘spousal’’ relationship between the men in that jurisdiction, which the court held should be recognized for this purpose.
In the field of employee benefits, the availability of health insurance, paid funeral leave, and family and medical leave is routinely expected by employees with legal spouses but is not routinely available in the case of same-sex partners. Most of the change in this area has come voluntarily from the private sector, as large corporations were convinced that the costs of including same-sex partners in such benefits plans were minor compared with the gains in employee satisfaction and the competitive advantage in attracting skilled labor. Private sector employees could not sue to obtain such benefits, because a federal law, ERISA, blocks the courts from considering entitlement claims to employee benefits based solely on state legal principles, such as a state law banning sexual orientation discrimination. However, ERISA does not apply to the working conditions of state and local government employees, so there has been litigation asserting that the failure of government employers to provide such benefits violates constitutional equality requirements. One such case, Tanner v. Oregon Health Sciences University, 971 P.2d 435 (Or. Ct. App. 1998), led the court to find that denial of such benefits constituted sex discrimination in violation of the state’s constitution, and another, Gay Teachers Association v. Board of Education, 585 N.Y.S.2d 1016 (N.Y.A.D., 1st Dept, 1992), led the City of New York to negotiate benefits for same-sex partners of municipal employees with the relevant labor unions. However, many of these lawsuits have been unsuccessful when courts concluded that the same-sex partners were being treated the same as unmarried opposite sex partners, who were seen by these courts as the appropriate comparators for analyzing the discrimination claim.
Finally, in those jurisdictions where discrimination on the basis of sexual orientation is forbidden by law—seventeen states as of 2005—it is possible to argue that the failure of a covered entity to extend benefits or rights to same-sex partners may violate the law on a theory of disparate impact. The New York Court of Appeals embraced such a view in Levin v. Yeshiva University, 754 N.E.2d 1099 ( 2001), in which a private university provided subsidized housing for married students but refused to allow lesbian or gay students to have same-sex partners living with them in such housing.Although limiting the housing tomarried students established a requirement that on its face had no reference to sexual orientation, the court found that the obvious disadvantage that the policy imposed on lesbian and gay students could be actionable as discrimination, even if unintended as such.
Some municipalities and states have decided to extend legal recognition to same-sex unions through the mechanism of domestic partnerships. Typically, unmarried adult couples can register their partnership with a municipal official and will receive a certificate that can be used as evidence of their relationship. In some cases, the local law provides no other rights. In others, the partnership status may bestow visitation rights in municipal hospitals and jails, benefits for partners of municipal employees, and recognition under other municipal programs where eligibility or entitlement turns on marital status. The widest-ranging municipal domestic partnership law is in New York City. On the state level, the Vermont Civil Union Law, enacted in 2000 in response to a lawsuit, Baker v. State of Vermont, 744 A.2d 864 (Vt. 1999), affords same-sex couples the same rights under state law that are enjoyed by married couples. In 2003, California amended an existing domestic partnership registration law to extend most of the rights enjoyed by married couples under state law, the major exception being spousal status under the state’s Tax Code. In 2005, Connecticut enacted a civil union statute as a compromise between proponents of same-sex marriage and those opponents of marriage who were willing to extend legal recognition to partners so long as the term ‘‘marriage’’ was not used. The Vermont, California, and Connecticut laws provide to those same-sex partners who register their relationships virtually all the rights under state law that are provided to married couples.
The tragedy of September 11, 2001, brought very limited recognition for same-sex unions under federal law, when the administrator of the settlement fund appropriated by Congress authorized some benefits payments to surviving partners of persons who had died in the tragedy at the World Trade Center. But the limitations of legal recognition were emphasized by the unequal treatment afforded a survivor of an employee of the Pentagon, because the administrator based his ruling on New York State’s willingness to recognize same-sex partners for certain purposes contrasted with Virginia’s unwillingness to do so.
Social and legal recognition of same-sex partners has advanced to the point where the general public appears to support such recognition in specified circumstances where failure to do so is readily seen to cause hardship, but a majority of the public in the United States continues to resist the idea of opening up legal marriage to same-sex partners, which would be the ultimate and complete legal recognition of their unions.
ARTHUR S. LEONARD
References and Further Reading
Cases and Statutes Cited
See also Bowers v. Hardwick, 478 U.S. 186 (1986); Lawrence v. Texas, 539 U.S. 558 (2003); Same-Sex Marriage Legalization