Husband and Wife - Same-sex Marriage

In the 1980s and early 1990s, lawsuits were initiated to expand the traditional husband-and-wife relationship, and the rights and privileges that relationship conveys, to partners of the same sex. In a landmark case, Baehr v. Lewin, 74 Haw. 645, 852 P.2d 44 (1993), the Hawaii Supreme Court, although rejecting the idea that the Hawaii Constitution gives same-sex couples a fundamental right to marriage, held that Hawaii's marriage statute (Haw. Rev. Stat. § 572-1) discriminates on the basis of sex by barring people of the same sex from marrying. As a result, such statutes are subject to STRICT SCRUTINY. However, in 1998 Hawaiian voters overwhelmingly approved a constitutional amendment that, while not banning same-sex marriage, gave the legislature the power to restrict marriages to opposite-sex couples.

In 1996, largely in response to Baehr, Congress passed the Defense of Marriage Act (110 Stat. § 2419), which defines marriage as "a legal union between one man and one woman as husband and wife." The term spouse is defined as a "person of the opposite sex who is a husband or a wife." In effect, the Defense of Marriage Act states that the federal government does not acknowledge same-sex marriages.

In 2001, however, Vermont became the first state to enact a law recognizing "civil unions" between same-sex couples (23 V.S.A. § 1201 et seq. [2000]). The 2000 law came in response to a 1999 Vermont Supreme Court ruling (Baker v. Vermont, 170 Vt. 194, 744 A.2d 864 [1999]), which found that the benefits and protections guaranteed by the Vermont Constitution for opposite-sex couples extend to same-sex couples. Benefits and protections include access to a spouse's medical, life, and disability insurance; hospital visitation, and other medical decisionmaking privileges; spousal support; and the ability to inherit property from a deceased spouse without a will.