Order Code RL31994
CRS Report for Congress
Received through the CRS Web
Same-Sex Marriages:
Legal Issues
Updated February 4, 2004
Alison M. Smith
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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Same-Sex Marriages: Legal Issues
Summary
Currently neither federal nor any state law affirmatively allows gay or lesbian
couples to marry. However, this may change depending on how the Massachusetts
legislators act in response to a recent court decision which construe civil marriage to
mean the voluntary union of two persons as spouses, to the exclusion of others. This
report discusses the Defense of Marriage Act (DOMA), P.L. 104-199, which
prohibits federal recognition of same-sex marriages and allows individual states to
refuse to recognize such marriages performed in other states, as well as the potential
legal challenges to the DOMA. Moreover this report summarizes the legal principles
applied in determining the validity of a marriage contracted in another state and
surveys the various approaches employed by states to prevent same-sex marriage.

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Contents
Defense of Marriage Act (DOMA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Potential Constitutional Challenges to DOMA . . . . . . . . . . . . . . . . . . . . . . . 2
Full Faith and Credit Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Equal Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Substantive Due Process (Right to Privacy) . . . . . . . . . . . . . . . . . . . . . 3
Interstate Recognition of Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Pending State Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Pending Federal Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
List of Tables
Table 1. State Statutes Defining “Marriage” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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Same-Sex Marriages: Legal Issues
Currently neither federal law nor any state law affirmatively allows gay or lesbian
couples to marry.1 On the federal level, Congress enacted the Defense of Marriage
Act (DOMA) to prohibit recognition of same-sex marriages for purposes of federal
enactments. States, such as Alaska, Hawaii, Nebraska and Nevada have enacted state
constitutional amendments limiting marriage to one man and one woman. Thirty-
seven other states have enacted statutes limiting marriage in some manner.2 A chart
summarizing these various approaches is included at the end of this report.
Defense of Marriage Act (DOMA)3
In 1996, Congress enacted the DOMA “[t]o define and protect the institution of
marriage.” It allows all states, territories, possessions, and Indian tribes to refuse to
recognize an act of any other jurisdiction that designates a relationship between
individuals of the same sex as a marriage. In part, DOMA states:
No State, territory, or possession of the United States, or Indian tribe, shall be
required to give effect to any public act, record, or judicial proceeding of any
other State, territory, possession, or tribe respecting a relationship between
persons of the same sex that is treated as a marriage under the laws of such other
State, territory, possession, or tribe, or a right or claim arising from such
relationship.4
Furthermore, DOMA goes on to declare that the terms “marriage” and “spouse,” as
used in federal enactments, exclude homosexual marriage.
In determining the meaning of any Act of Congress, or of any ruling, regulation,
or interpretation of the various administrative bureaus and agencies of the United
States, the word ‘marriage’ means only a legal union between one man and one
1 This may change depending on how the Massachusetts Legislature responds to the
Supreme Judicial Court’s ruling in Goodridge v. Dept. of Public Health, 2003 WL
22701313 (Supreme Judicial Ct. Nov. 18, 2003). On February 3, 2004, The Massachusetts
Supreme Judicial Court ruled that civil unions are not the constitutional equivalent of civil
marriage. The court’s decision was delivered in an advisory opinion sought by the state
Senate.
2 These states are: Alabama, Arizona, Arkansas, California, Colorado, Delaware, Florida,
Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland,
Michigan, Minnesota, Mississippi, Missouri, Montana, New Hampshire, North Carolina,
North Dakota, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee,
Texas, Utah, Virginia, Washington, West Virginia, and Wyoming.
3 Pub. L. No. 104-199, 110 Stat. 2419 (codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C).
4 28 U.S.C. §1738C.

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CRS-2
woman as husband and wife, and the word ‘spouse’ refers only to a person of the
opposite sex who is a husband or a wife.5
Potential Constitutional Challenges to DOMA6
Full Faith and Credit Clause. Some argue that DOMA is an unconstitutional
exercise of Congress’ authority under the full faith and credit clause of the U.S.
Constitution.7 Article IV, section 1 of the Constitution, the Full Faith and Credit
Clause states:
Full Faith and Credit shall be given in each State to the public Acts, Records, and
judicial Proceedings of every other State; And the Congress may by general Laws
prescribe the Manner in which such Acts, Records and Proceedings shall be
proved, and the Effect thereof.
Opponents argue that, while Congress has authority to pass laws that enable acts,
judgments and the like to be given effect in other States, it has no constitutional power
to pass a law permitting States to deny full faith and credit to another State’s laws and
judgments.8 Conversely, some argue that DOMA does nothing more than simply
restate the power granted to the States by the full faith and credit clause.9 While there
is no judicial precedent on this issue, it would appear that Congress’ general authority
to “prescribe...the effect” of public acts arguably gives it discretion to define the
“effect” so that a particular public act is not due full faith and credit. It would appear
that the plain reading of the clause would encompass both expansion and contraction.
Equal Protection. Congress’ authority to legislate in this manner under the
full faith and credit clause, if the analysis set out above is accepted, does not conclude
the matter. There are constitutional constraints upon federal legislation. One that is
relevant is the equal protection clause and the effect of the Supreme Court’s decision
5 1 U.S.C. § 7.
6 It should be noted that a court has yet to determine the constitutionality of the DOMA. In
a federal tax-evasion case, the defendant claimed that he and his domestic partner were
“economic partners” who should be afforded filing status equivalent to that of a married
couple, and argued that DOMA was unconstitutional. The Seventh Circuit refused to
consider the claim, holding that DOMA “was not in effect during the 10-year period for
which Mueller was assessed deficiencies and, thus, is not at issue here.” Mueller v.
Commissioner, 2001 WL 522388, at 1 (7th Cir. Apr. 6, 2001). Mueller later raised the same
challenge in a dispute over a tax return when DOMA was in effect, but the Seventh Circuit
held that the law did not apply because “Mr. Mueller did not try to have his same-sex
relationship recognized as a marriage under Illinois law...” Mueller v. Commissioner, No.
4743-00, 2002 WL 1401297, at *1 (7th Cir. June 26, 2002).
7 U.S. Const. art. IV, § 1.
8 See 142 Cong. Rec. S5931-33 (June 6, 1996) (statement introducing Professor Laurence
H. Tribe’s letter into the record concluding that DOMA “would be an unconstitutional
attempt by Congress to limit the full faith and credit clause of the Constitution.”).
9 See Paige E. Chabora, Congress’ Power Under the Full Faith and Credit Clause and the
Defense of Marriage Act of 1996, 76 Neb. L. Rev. 604, 621-35 (1997).

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in Romer v. Evans,10 which struck down under the equal protection clause a
referendum-adopted provision of the Colorado Constitution, which repealed local
ordinances that provided civil-rights protections for gay persons and which prohibited
all governmental action designed to protect homosexuals from discrimination. The
Court held that, under the equal protection clause, legislation adverse to homosexuals
was to be scrutinized under a “rational basis” standard of review.11 The classification
failed to pass even this deferential standard of review, because it imposed a special
disability on homosexuals not visited on any other class of people and it could not be
justified by any of the arguments made by the State. The State argued that its purpose
for the amendment was two-fold: (1) to respect the freedom of association rights of
other citizens, such as landlords and employers) who objected to homosexuality; and
(2) to serve the state’s interest in conserving resources to fight discrimination against
other protected groups.
DOMA can be distinguished from the Colorado amendment. DOMA’s
legislative history indicates that it was intended to protect federalism interests and
state sovereignty in the area of domestic relations, historically a subject of almost
exclusive state concern. Moreover, it permits but does not require States to deny
recognition to same-sex marriages in other States, affording States with strong public
policy concerns the discretion to effectuate that policy. Thus, it can be argued that
DOMA is grounded not in hostility to homosexuals but in an intent to afford the States
the discretion to act as their public policy on same-sex marriage dictates.
Substantive Due Process (Right to Privacy). Another possibly applicable
constitutional constraint is the Due Process Clause of the Fourteenth Amendment and
the effect of the Supreme Court’s decision in Lawrence v. Texas,12 which struck down
under the due process clause a state statute criminalizing certain private sexual acts
between homosexuals. The Court held that the Fourteenth Amendment’s due process
privacy guarantee extends to protect consensual sex between adult homosexuals. The
Court noted that the Due Process right to privacy protects certain personal decisions
from governmental interference. These personal decisions include issues regarding
contraceptives, abortion, marriage, procreation, and family relations.13 The Court
extended this right to privacy to cover adult consensual homosexual sodomy.
It is currently unclear what impact, if any, the Court’s decision in Lawrence will
have on legal challenges to laws prohibiting same-sex marriage. On the one hand, this
decision can be viewed as affirming a broad constitutional right to sexual privacy.
Conversely, the Court distinguished this case from cases involving minors and
“whether the government must give formal recognition to any relationship that
10 517 U.S. 620 (1996).
11 Id.
12 No. 02-102, 2003 U.S. LEXIS 5013 (June 26, 2003). For a legal analysis of this decision,
refer to CRS Report RL31681, Homosexuality and the Constitution: A Legal Analysis of the
Supreme Court Ruling in Lawrence v. Texas by Jody Feder.
13 Lawrence v. Texas, No. 02-102, 2003 U.S. LEXIS 5013, at *28 (June 26, 2003).

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CRS-4
homosexual persons seek to enter.”14 Courts may seek to distinguish statutes
prohibiting same-sex marriage from statutes criminalizing homosexual conduct.
Courts may view the preservation of the institution of marriage as sufficient
justification for statutes banning same-sex marriage. Moreover, courts may view the
public recognition of marriage differently than the sexual conduct of homosexuals in
the privacy of their own homes.
Interstate Recognition of Marriage
DOMA opponents assume that the Full Faith and Credit Clause would obligate
States to recognize same-sex marriages contracted in States in which they are
authorized. This conclusion is far from evident as this clause applies principally to
the interstate recognition and enforcement of judgments.15 It is settled law that final
judgments are entitled to full faith and credit, regardless of other states’ public
policies, provided the issuing state had jurisdiction over the parties and the subject
matter.16 The Full Faith and Credit Clause has rarely been used by courts to validate
marriages because marriages are not “legal judgments.”
As such, questions concerning the validity of an out-of-state marriage are
generally resolved without reference to the Full Faith and Credit Clause. In the legal
sense, marriage is a “civil contract” created by the States which establishes certain
duties and confers certain benefits.17 Validly entering the contract creates the marital
status; the duties and benefits attached by a State are incidents of that status. As such,
the general tendency, based on comity rather than on compulsion under the Full Faith
and Credit Clause, is to recognize marriages contracted in other States even if they
could not have been celebrated in the recognizing State.
The general rule of validation for marriage is to look to the law of the place
where the marriage was celebrated. A marriage satisfying the contracting State’s
requirements will usually be held valid everywhere.18 Many States provide by statute
that a marriage that is valid where contracted is valid within the State. This “place of
celebration” rule is then subject to a number of exceptions, most of which are
narrowly construed. The most common exception to the “place of celebration” rule
is for marriages deemed contrary to the forum’s strong public policy. Several States,
14 Id. at *36.
15 See H.R. Rep. 104-664, 1996 U.S.C.C.A.N. 2905 (stating that “marriage licensure is not
a judgment.”). See also, 28 U.S.C. § 1738 (defining which acts, records and judicial
proceeding are afforded full faith and credit).
16 Restatement (Second) of Conflict of Laws § 107.
17 On the state level, common examples of nonnegotiable marital rights and obligations
include: distinct income tax filing status; public assistance such as health and welfare
benefits; default rules concerning community property distribution and control; dower,
curtesy and inheritance rights; child custody, child agreements; name change rights; spouse
and marital communications privileges in legal proceedings; and the right to bring wrongful
death, and certain other, legal actions.
18 See 2 Restatement (Second) of Conflict of Laws § 283.

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CRS-5
such as Connecticut,19 Idaho,20 Illinois,21 Kansas,22 Missouri,23Pennsylvania,24 South
Carolina,25 Tennessee26 and West Virginia,27 provide an exception to this general rule
by declaring out-of-state marriages void if against the State’s public policy or if
entered into with the intent to evade the law of the State. This exception applies only
where another State’s law violates “some fundamental principle of justice, some
prevalent conception of good morals, some deep-rooted tradition of the common
weal.”28
Section 283 of the Restatement (Second) of Law provides:
(1) The validity of marriage will be determined by the local law of the state which,
with respect to the particular issue, has the most significant relationship to the
spouses and the marriage under the principles stated in § 6.
(2) A marriage which satisfies the requirements of the state where the marriage
was contracted will everywhere be recognized as valid unless it violates the strong
public policy of another state which had the most significant relationship to the
spouses and the marriage at the time of the marriage.
Pending State Litigation
Massachusetts, unlike thirty-seven States and the federal government, has not
adopted a “defense of marriage statute” defining marriage as a union between a man
and woman.29 On April 11, 2001, a Boston-based, homosexual rights group, Gay
Lesbian Advocates and Defenders (GLAD) filed suit against the Massachusetts
19 Conn. Gen Stat. Ann. § 45a-803-4.
20 Idaho Code § 32-209.
21 750 Ill. Comp. Stat. 5/201.
22 Kan. Stat. Ann. § 23-101.
23 Mo. Rev. Stat. § 451.022.
24 Pa. Stat. Ann. tit. 23 § 1704.
25 S.C. Code Ann. § 20-1-10.
26 Tenn. Code Ann. § 36-3-113.
27 W. Va. Code § 48-2-603.
28 Loucks v. Standard Oil Co., 120 N.E. 198, 202 (N.Y. 1918)(defining public policy as a
valid reason for closing the forum to suit); see e.g. Langan v. St. Vincent Hosp., 2003 N.Y.
Misc. LEXIS 673 (stating that New York adheres to the general rule that “marriage
contracts, valid where made, are valid everywhere, unless contrary to natural laws or
statutes.”); Shea v. Shea, 63 N.E.2d 113 (N.Y. 1945)(finding that a common law marriage
validly contracted in another state should not be recognized as common law marriage in
New York as it was prohibited by statute).
29 It should be noted that in Adoption of Tammy, 619 N.E. 2d 315 (Mass. 1993), the
Supreme Judicial Court has interpreted “marriage” to mean “the union of one man and one
woman.”

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CRS-6
Department of Public Health on behalf of seven same-sex couples. The plaintiffs
claimed that “refusing same-sex couples the opportunity to apply for a marriage
license” violates Massachusetts’ law and various portions of the Massachusetts
Constitution. GLAD’s brief argued the existence of a fundamental right to marry “the
person of one’s choosing” in the due process provisions of the Massachusetts
Constitution and asserted that the marriage laws, which allow both men and women
to marry, violate equal protection provisions.30
The Superior Court rejected the plaintiffs’ arguments after exploring the
application of the word marriage, the construction of marriage statutes and finally, the
historical purpose of marriage. The trial court found that based on history and the
actions of the people’s elected representatives, a right to same-sex marriage was not
so rooted in tradition that a failure to recognize it violated fundamental liberty, nor
was it implicit in ordered liberty.31 Moreover, the court held that in excluding same-
sex couples from marriage, the Commonwealth did not deprive them of substantive
due process, liberty, or freedom of speech or association.32 The court went on to find
that limiting marriage to opposite-sex couples was rationally related to a legitimate
state interest in encouraging procreation.33
On November 18, 2003, the Massachusetts Supreme Judicial Court overruled the
lower court and held that under the Massachusetts Constitution, the Commonwealth
could not deny the protections, benefits, and obligations attendant on marriage to two
individuals of the same sex who wish to marry.34 The court concluded that
interpreting the statutory term “marriage” to apply only to male-female unions, lacked
a rational basis for either due process or equal protection purposes under the state’s
constitution. Moreover, the court found that such a limitation was not justified by the
state’s interest in providing a favorable setting for procreation and had no rational
relationship to the state’s interests in ensuring that children be raised in optimal
settings and in conservation of state and private financial resources.35 The court
reasoned that the laws of civil marriage did not privilege procreative heterosexual
intercourse, nor contain any requirement that applicants for marriage licenses attest
to their ability or intention to conceive children by coitus. Moreover, the court
reasoned that the state has no power to provide varying levels of protection to children
based on the circumstances of birth. As for the state’s interest in conserving scarce
state and private financial resources, the court found that the state failed to produce
any evidence to support its assertion that same-sex couples were less financially
30 Hilary Goodridge v. Dept. of Public Health, No. 01-1647-A, 2002 Mass. Super LEXIS
153 (Suffolk County, Super. Ct. May 7, 2002).
31 Id.
32 Id.
33 Id.
34 Hillary Goodridge v. Dept. of Public Health, 2003 WL 22701313 (Supreme Judicial
Court. Nov. 18, 2003).
35 Id. at *14 (stating that it “cannot be rational under our laws, and indeed is not permitted,
to penalize children by depriving them of state benefits because the state disapproves of
their parents’ sexual orientation.”)

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interdependent than opposite-sex couples. In addition, Massachusetts marriage laws
do not condition receipt of public and private financial benefits to married individuals
on a demonstration of financial dependence on each other.36 As this decision is based
on the Commonwealth’s constitution, it is not reviewable by the U.S. Supreme Court.
The court stayed its decision for 180 days to give the Legislature time to enact
legislation “as it may deem appropriate in light of this opinion.”37
On February 3, 2004, the court ruled, in an advisory opinion to the state senate,
that civil unions are not the constitutional equivalent of civil marriage.38 The court
reasoned that the establishment of civil unions for same-sex couples would create a
separate class of citizens by status discrimination which would violate the equal
protection and due process requirements of the Constitution of the Commonwealth.39
While the aforementioned opinions deal exclusively with a state constitution, an
Arizona Court of Appeals exercising its discretion to accept jurisdiction based on the
issue of first impression, held that the fundamental right to marry protected by the
Fourteenth Amendment as well as the Arizona Constitution did not encompass the
right to marry a same-sex partner.40 Moreover, the court found that the state had a
legitimate interest in encouraging procreation and child rearing within the marital
relationship and limiting that relationship to opposite-sex couples.
In light of the Supreme Court’s recent decision in Lawrence, the petitioners
argued that the Arizona statute prohibiting same-sex marriages violated their
fundamental right to marry and their right to equal protection under the laws, both of
which are guaranteed by the federal and state constitutions. The court rejected the
petitioners’ argument that the Supreme Court in Lawrence implicitly recognized that
the fundamental right to marry includes the freedom to choose a same-sex spouse.41
The court viewed the Lawrence language as acknowledging a homosexual person’s
“right to define his or her own existence, and achieve the type of individual fulfillment
that is the hallmark of a free society, by entering a homosexual relationship.”42
However, the court declined to view the language as stating that such a right includes
the choice to enter a state-sanctioned, same-sex marriage.
As such, the court reviewed the constitutionality of the challenged statutes using
a rational basis analysis and found that the state has a legitimate interest in
encouraging procreation and child-rearing within the marital relationship, and that
limiting marriage to opposite-sex couples is rationally related to that interest.
36 Id. at 15.
37 Id. at *18.
38 The state Senate asked the court whether it would be sufficient for the legislature to pass
a law allowing same-sex civil unions that would confer “all of the benefits, protections,
rights and responsibilities of marriage.”
39 Opinions of the Justices to the Senate, SJC-01963 (Supreme Judicial Ct. Feb. 3, 2004).
40 Standhardt v. Superior Court of the State of Arizona, 77 P.3d 451 (Ariz. Ct. App. 2003).
41 Id. at 457.
42 Id.

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Moreover, the court said that while the state’s reasoning is debatable, it is not arbitrary
or irrational. Consequently, the court upheld the challenged statutes.
Pending Federal Legislation
On May 21, 2003, H.J.Res. 56, a proposed constitutional amendment was
introduced. The companion bill, S.J.Res. 26 was introduced in the Senate on
November 25, 2003. The text of the proposed constitutional amendments is as
follows:
Marriage in the United States shall consist only of the union of a man and a
woman. Neither this Constitution or the constitution of any State, nor state or
federal law, shall be construed to require that marital status or the legal incidents
thereof be conferred upon unmarried couples or groups.
While uniformity may be achieved upon ratification of such an amendment,
States would no longer have the flexibility of defining marriage within their borders.
Moreover, States may be prohibited from recognizing a same-sex marriage performed
and recognized outside of the United States.43 It appears that this amendment would
not impact a State’s ability to define civil unions or domestic partnerships and the
benefits conferred upon such.
However, an issue may arise regarding the time in which an individual is
considered a man or a woman. As the first official document to indicate a person’s
sex, the designation on the birth certificate “usually controls the sex designation on
all later documents.”44 Some courts have held that sexual identity for purposes of
marriage is determined by the sex stated on the birth certificate, regardless of
subsequent sexual reassignment.45 However, some argue that this method is flawed,
as an infant’s sex may be misidentified at birth and the individual may subsequently
identify with and conform his or her biology to another sex upon adulthood.46
Conclusion
States currently possess the authority to decide whether to recognize an out-of-
state marriage. The Full Faith and Credit Clause has rarely been used by States to
validate marriages because marriages are not “legal judgments.” With respect to cases
decided under the Full Faith and Credit Clause that involve conflicting State statutes,
43 It appears that the Netherlands, Belgium and Ontario, Canada are the only international
jurisdictions that sanction and/or recognize a same-sex union as a “marriage,” per se.
44 Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision Between
Law and Biology, 41 Ariz. L. Rev. 265,309 (1999) (discussing biological characteristics and
sexual identity).
45 See e.g., In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002); Littleton v. Prange, 9 S.W.
3d 223 (Tex. App. 1999); but see, M.T. v. J.T., 355 A.2d 204 (N.J. 1976)(determining an
individual’s sexual classification for the purpose of marriage encompasses a mental
component as well as an anatomical component).
46 If a mistake was made on the original birth certificate, an amended certificate will
sometimes be issued if accompanied by an affidavit from a physician or a court order.

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CRS-9
the Supreme Court generally examines the significant aggregation of contacts the
forum has with the parties and the occurrence or transaction to decide which State’s
law to apply. Similarly, based upon generally accepted legal principles, States
routinely decide whether a marriage validly contracted in another jurisdiction will be
recognized in-State by examining whether it has a significant relationship with the
spouses and the marriage.
Congress is empowered under the Full Faith and Credit Clause of the
Constitution to prescribe the manner that public acts, commonly understood to mean
legislative acts, records, and proceedings shall be proved and the effect of such acts,
records, and proceedings in other States.47
The Supreme Court’s decisions in Romer v. Colorado and Lawrence v. Texas
may present different issues concerning DOMA’s constitutionality. Basically Romer
appears to stand for the proposition that legislation targeting gays and lesbians is
constitutionally impermissible under the Equal Protection Clause unless the legislative
classification bears a rational relationship to a legitimate State purpose. Because same-
sex marriages are singled out for differential treatment, DOMA appears to create a
legislative classification for equal protection purposes that must meet a rational basis
test. It is possible that DOMA could survive constitutional scrutiny under Romer
inasmuch as the statute was enacted to protect the traditional institution of marriage.
Moreover, DOMA does not prohibit States from recognizing same-sex marriage if
they so choose.
Lawrence appears to stand for the proposition that the zone of privacy protected
by the Due Process Clause of the Fourteen Amendment extends to adult, consensual
sex between homosexuals. Lawrence’s implication for statutes banning same-sex
marriages and the constitutional validity of the DOMA are unclear.
Table 1. State Statutes Defining “Marriage”
State
Statute
Marriage
Non-
definitiona
Recognition
Alabama
ALA. CODE § 30-1-19 (2003)
X
X
Alaska
ALASKA STAT. § 25.05.011
X
(2003)
Arizona
ARIZ. REV. STAT. § 25-101
X
(2003)
47 It should be noted that only on five occasions previous to the DOMA has Congress
enacted legislation based upon this power. The first, passed in 1790 (1 Stat. 122, codified
at 28 U.S.C. § 1738), provides for ways to authenticate acts, records and judicial
proceedings. The second, dating from 1804 (2 Stat. 298, codified at 28 U.S.C. 1738),
provides methods of authenticating non-judicial records. Three other Congressional
enactments pertain to modifiable family law orders (child custody, 28 U.S.C. § 1738A, child
support (28 U.S.C. § 1738B) and domestic protection (18 U.S.C. § 2265)).

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State
Statute
Marriage
Non-
definitiona
Recognition
Arkansas
ARK. CODE ANN. § 9-11-109
X
(2003)
California
CAL. FAM. CODE § 300 (2003)
X
Colorado
COLO. REV. STAT. § 14-2-104
X
(2003)
Connecticut*
Judicial Interpretation
Xb
Delaware
DEL. CODE ANN. tit.13 § 101
X
(2002)
Florida
FLA. STAT. Ch. 741.04 (2002)
X
Georgia
GA. CODE ANN. § 19-3-3.1
X
(2002)
Hawaii
HAW. REV. STAT. ANN. § 572-1
X
(2003)
Idaho*
IDAHO CODE § 32-209 (2003)
X
Illinois*
750 ILL. COMP. STAT. 5/201
X
X
(2003)
Indiana
IND. CODE ANN. § 31-11-1-1
X
X
(2003)
Iowa
IOWA CODE § 595.2 (2003)
X
Kansas*
KAN.. STAT. ANN. § 23-101
X
(2002)
Kentucky
KY. REV. STAT. ANN. § 402.020
X
(2002)
Louisiana LA. CIV. CODE art. 86 (2003)
X
Maine
ME. REV. STAT. ANN. tit. 19, §
X
701 (2003)
Maryland
MD. CODE ANN. FAM. LAW § 2-
X
201 (2002)
Massachusetts
Judicial Interpretation
Xc
Michigan
MICH. COMP. LAWS § 551.1
X
X
(2003)
Minnesota
MINN. STAT. § 517.01 (2002)
X
Mississippi
MISS. CODE ANN. § 93-1-1
X
(2003)

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State
Statute
Marriage
Non-
definitiona
Recognition
Missouri*
MO. REV. STAT. § 451.022
X
(2003)
Montana
MONT. CODE ANN. § 40-1-103
X
(2002)
Nebraska
NEB. REV. STAT. ANN. art. 1, §
X
29 (2002)
Nevada
NEV. REV. STAT. ANN. §122.020
X
(2003)
New Hampshire
N.H. REV. STAT. ANN. § 457:2
X
(2002)
New Jersey
Judicial Interpretation
Xd
New Mexico
N.M. STAT. ANN § 40-1-1 (2002)
Xe
New York
Judicial Interpretation
Xf
North Carolina
N.C. GEN. STAT. § 51-1.2 (2003)
X
North Dakota
N.D. CENT. CODE § 14-03-01
X
(2002)
Ohio
OHIO REV. CODE ANN. §3101
Xg
(2002)
Oklahoma
OKLA. STAT. tit. 43 § 3.1 (2003)
X
Oregon
OR. REV. STAT. § 106.010 (2001)
X
Pennsylvania*
PA. STAT. ANN. tit. 23 § 1704
X
(2002)
Rhode Island
R.I. GEN. LAWS § 15-1-1 (2002)
Xh
South Carolina*
S.C. CODE ANN. § 20-1-10
X
(2002)
South Dakota
S. D. CODIFIED LAWS § 25-1-1
X
(2002)
Tennessee*
TENN. CODE. ANN. § 36-3-113
X
(2003)
Texas
TEX. FAM. CODE ANN. § 2.001
X
(2002)
Utah
UTAH CODE ANN. § 30-1-2
X
(2003)
Vermont
VT. STAT. ANN. tit. 15 § 8 (2003)
X
Virginia
VA. CODE ANN. § 20-45.2 (2003)
X

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CRS-12
State
Statute
Marriage
Non-
definitiona
Recognition
Washington
WASH. REV. CODE ANN. §
X
26.04.010 (2003)
West Virginia*
W. VA. CODE § 48-2-603 (2003)
X
Wisconsin
WIS. STAT. § 765.01 (2002)
Xi
Wyoming
WYO. STAT. § 20-1-101 (2003)
X
Puerto Rico
P.R. LAWS ANN. tit. 31, § 221
X
(2002)
* denotes statute establishing same-sex union as violation of state’s public policy
a. Marriage consists of a contract between one man and one woman.
b. Since nothing in the statute, legislative history, court rules, case law, or public policy permitted
same-sex marriage or recognized the parties’ Vermont civil union as a marriage, the trial court
lacked jurisdiction to dissolve the union.
c. The Supreme Judicial Court has interpreted “marriage,” within Massachusetts’ statutes, “as the union
of one man and one woman.” Adoption of Tammy, 619 N.E.2d 315 (1993). However, in
Goodridge v. Dept. of Public Health, 2003 WL 22701313 (Supreme Judicial Ct. Nov. 18, 2003),
the court construed the term “marriage” to mean the voluntary union of two persons as spouses,
to the exclusion of all others.
d. Although no specific language in this statute or other New Jersey marriage statutes prohibits same-
sex marriages, the meaning of marriage as a heterosexual institution was so firmly established that
the court could not disregard its plain meaning and the clear intent of the legislature. Rutgers
Council v. Rutgers State University, 689 A.2d 828 (1997).
e. Marriage is a civil contract requiring consent of parties
f. Marriage has been traditionally defined as the voluntary union of one man and one woman as
husband and wife. See e.g., Fisher v. Fisher, 250 N.Y. 313, 165 N. E. 460 (1929). A basic
assumption, therefore, is that one of the two parties to the union must be male and the other must
be female. On the basis of this assumption, the New York courts have consistently viewed it
essential to the formation of a marriage that the parties be of opposite sexes. However, in Langan
v. St. Vincent Hosp., 2003 N.Y. Misc. LEXIS 673, the court found that New York’s statutes did
not prohibit recognition of a same-sex union nor was such a union against New York’s public
policy on marriage. As such, the court recognized the same-sex partner as a spouse for purposes
of New York’s wrongful death statute.
g. Males age 18 and females age 16, not nearer of kin than second cousins, and not having a husband
or wife living, may be joined in marriage.
h. Men are forbidden to marry kindred.
i. Marriage, so far as its validity at law is concerned, is a civil contract, to which the consent of the
parties capable in law of contracting is essential, and which creates the legal status of husband
and wife.

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