Is the Union Civil? Same-Sex Marriages, Civil Unions, Domestic Partnerships and Reciprocal Benefits in the USA

The legal recognition of same-sex relationships has been a legislative Gordian knot for almost three decades in the United States of America. Few issues have been so polarising as the debate surrounding the opening of marriage to same-sex couples. The aim of this article is to provide a clear picture of the current state of affairs in the United States as regards the recognition of formalised same-sex relationships. Following an overview of those States that prohibit any form of recognition to same-sex unions, this article focuses on the various registration forms currently operating in eleven jurisdictions in the U.S.A. Using the substantive law material gathered in this overview, these regimes will be compared and contrasted. It is ultimately concluded that despite the differences between the routes taken, uniform patterns are indeed discernible. It would appear that the name used to define these new relationship forms is absolutely crucial if one wishes to understand the political motives and compromises behind the legislation.


Introduction
The legal recognition of same-sex relationships has been a legislative Gordian knot for almost three decades in the United States of America. Few issues have been so polarising as the debate surrounding the opening of marriage to same-sex couples. The aim of this article is to provide a clear picture of the current state of affairs in the United States as regards the recognition of formalised same-sex relationships. In doing so, this article will provide an overview of relevant legislation prohibiting or permitting the legal recognition of same-sex relationships in all fifty states, as well as in the District of Columbia and at the federal level. Although a number of websites and other surveys have been produced over the years, these surveys are no longer up-todate. Furthermore, this survey aims to provide a possible theoretical framework within which future research in this field can be placed. By identifying the trends, similarities and differences, this article will provide future academics in this field with possible hypotheses as to where the law may go in the future in those states that have not yet introduced such registration schemes.
This article is divided into six sections. After this introduction, the various states currently prohibiting the recognition of same-sex marriage and/or other forms of registration will be classified according to the source of the prohibition ( §2). The subsequent section will be devoted to an analysis of the spectrum of registration schemes currently in force in jurisdictions across the country, namely reciprocal benefits ( §3.1), domestic partnerships ( §3.2), civil unions ( §3.3) and same-sex marriages ( §3.4). The jurisdictions that are dealt with in these sections are obviously dealt with in much greater detail since they provide for some form of registration scheme. In total 11 jurisdictions will be dealt with in §3. Three states will form the basis of the analysis in §4, where the recognition of out-of-state same-sex marriages will be considered. After a few brief comparative remarks ( §5), the article will conclude with a number of general remarks based on the overview provided ( §6).
A number of choices have obviously had to be made in compiling a survey of this nature. This survey is limited to an overview of the law in the fifty states and the District of Columbia. The reason for this choice is twofold. Firstly, the sheer diversity of county, city and municipality 14 Fed. R. Evid. 501. This rule actually contains two privileges, namely the privilege against adverse spousal testimony and the marital communications privilege, together commonly referred to as 'the spousal privileges'. 15 For example the exemption from estate tax, I.R.C. §2001. 238 What is perhaps most surprising about the entire DOMA debate is that it was actually founded on an incorrect reading of the constitutional full faith and credit clause. 7 Historically speaking, marriage has never been thought to be encompassed by the full faith and credit clause. Questions of interstate marriage recognition have already been solved with resort to general principles of comity or marriage specific conflict of laws rules. According to general constitutional theory, states are not obliged to recognise each other's marriages on the basis of the stringent full faith and credit conditions. Nonetheless, debate concerning the validity of the federal DOMA has been completely overshadowed by the statutory and constitutional amendments of more than forty states that have now introduced their own mini-DOMA's.
Why then is this federal statute so important? Many federal laws use marital status as a connecting factor in attributing rights, duties and benefits. In 2004 the General Accounting Office, updating its 1997 Report, identified a total of 1,138 federal statutory provisions in which marital status is used as a factor in to determine the receipt of benefits, rights or privileges. 8 In enacting the Defense of Marriage Act, the federal Government effectively restricted these benefits to opposite-sex married couples; thereby denying these rights and benefits to same-sex couples, regardless of their status. Although many of these rights are extremely specific and rarely used, others deserve particular attention, including the right to receive a deceased spouse's social security benefits and survivors benefits, 9 the right to immigration benefits, 10 the right to income tax rate exemptions and deductions, 11 the right to file for joint bankruptcy, the right to petition for domestic violence protection orders, 12 the right to funeral and bereavement leave, the right to jointly file federal tax returns, 13 the right to make medical decisions on behalf of one's spouse, the right to spousal privilege in criminal proceedings, 14 inheritance rights 15 and the permission to make funeral decisions.

State level
It was, however, not only the federal legislature that feared the onslaught of same-sex marriages. No fewer than 45 States have since passed similar legislative amendments restricting their definition of marriage to that of one man and one woman. Nevertheless, it is important to identify a number of different categories.

State ban applies to same-sex marriages and other same-sex relationships
In Alabama, 16 Arkansas, 17 Georgia, 18 Idaho, 19 Kansas, 20 Kentucky, 21 Louisiana, 22 Michigan, 23 Nebraska, 24 North Dakota, 25 Ohio, 26 Oklahoma, 27 South Carolina, 28 South Dakota, 29 Texas, 30 Utah, 31 Virginia 32 and Wisconsin 33 the State Constitution has been amended so as to prohibit the recognition of any union other than that of one man and one woman. These constitutional amendments not only prohibit the celebration of same-sex marriages, civil unions and other forms of registration within the state, but also proscribe the recognition of out-of-state marriages and non-marital registrations. Although these constitutional amendments have all been passed after state-wide referenda, the constitutionality of these amendments has begun to be brought into question. However, at present no state has overturned the constitutional amendment by virtue of its unconstitutionality.  240 Although the amendment to the Alaskan Constitution is restricted to the non-recognition of same-sex marriages, 35 Section 25.05.013(b) of the Alaskan Statutes states, 'a same-sex relationship may not be recognized by the state as being entitled to the benefits of marriage'. It would therefore appear that same-sex couples claiming the benefits of marriage via a civil union or other form of civil recognition would be denied those benefits on the basis of this provision. A similar position is also taken in Florida where, despite the lack of a constitutional amendment, the state statutes prevent the recognition of any form of same-sex relationship, regardless of the terminology attached to it. 36 Montana's Constitutional amendment is also restricted to the non-recognition of same-sex marriages. 37 The amendment to Montana's statutes is, however, slightly more debatable with regards to its ambit. Paragraph 4 of §451.022 reads, 'A contractual relationship entered into for the purpose of achieving a civil relationship (…) is void as against public policy.' 38 One could argue, in attempting to have a civil union or domestic partnership recognised in Montana, that the benefit sought is not derived from a contractual relationship but from a legal status acquired in a foreign jurisdiction. Despite the appealing logic of this argument, it is unlikely that such an argument would succeed, and more-than-likely, that non-marital registered relationships will not be recognised in Montana on this basis.
A more convincing argument for the non-recognition of all registered same-sex relationships can be found in the statutory amendment to the Code of West Virginia, where it is stated, 'A 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 the other state, territory, possession, or tribe, or a right or claim arising from such relationship, shall not be given effect by this state.' 39 From this text it would appear that the West Virginian legislature intended to deny recognition not only to same-sex married couples, but also those to those couples claiming a right granted to married couples on the basis of a 'public act, record or judicial proceeding' respecting the relationship between same-sex couples. A couple who has legally registered a domestic partnership in California would therefore not be entitled to marital benefits in West Virginia on the basis of their domestic partnership.

State ban only applies to same-sex marriages
In Colorado, 40 Hawai'i, 41 Mississippi, 42 Missouri, 43 Nevada, 44 Oregon 45 and Tennessee 46 statewide referenda have been held on whether the state definition of marriage should be restricted to opposite-sex couples. In all these states, the ensuing constitutional amendment was restricted to the non-recognition of same-sex marriages. Other forms of relationship are not mentioned. In two of these states, namely Hawai'i and Oregon, the legislature has gone on to introduce forms of non-marital registered relationship (see Sections 3 and 4).
In  242 Washington 61 and Wyoming 62 the non-recognition of same-sex marriages has been codified by statutory amendment, without resorting to constitutional amendments and state-wide referenda. It is interesting to note that six of these states (California, Connecticut, Maine, New Hampshire, Vermont and Washington) have also introduced legislative schemes permitting same-sex couples to register their relationships (these schemes will be discussed in §4 and §5).
Even though the source of the proscription is irrelevant for an individual same-sex couple, it is important to note that the procedure for amending a state constitution is more arduous than a mere statutory amendment. As a result, same-sex couples in states that have passed constitutional amendments will more-than-likely be confronted with the ramifications of that vote for many years to come.

No state ban currently in force
Only five states have passed neither a state constitutional amendment nor a legislative proposal restricting marriage to same-sex couples (Massachusetts, New Jersey, New Mexico, New York and Rhode Island). In all of these five states, same-sex relationships are granted some degree of recognition (discussed later in §4, §5, §6 and §7).

Reciprocal benefits
At present only one state in the United States provides for a state-wide registry entitled 'reciprocal benefits', namely Hawai'i. Although the Oregon Family Council, Defence of Marriage Coalition and the Oregon House Conservatives introduced a reciprocal beneficiaries bill into the Oregon House of Representatives, 63 eventually House Bill 2007 was passed resulting in the introduction of domestic partnerships in the state (see Section 4). Furthermore, although bills to introduce a reciprocal beneficiary scheme have also been introduced in the Colorado Senate 64 and the Nevada Assembly, 65 neither has been successful. Nonetheless, in Nevada, at least, the issue has not been laid to rest entirely; a recent petition has been submitted to the Assembly by the Nevada System of Higher Education calling on the Assembly to introduce a system of reciprocal beneficiaries. 66 Vermont also provides for a system of reciprocal benefits. However, according to §1301 of Title 15, Vermont Statutes Annotated, the purpose of the scheme is to 'provide two persons who are blood-relatives or related by adoption the opportunity to establish a consensual reciprocal beneficiaries relationship so they may receive the benefits and protections and be subject to the responsibilities that are granted to spouses' in specific areas. Consequently, the scheme is not open to unrelated same-sex couples and is therefore not functionally equivalent to the reciprocal beneficiary schemes discussed in this article.

Hawai'i
In 1993, the Hawaiian Supreme Court handed down perhaps one of the most momentous and groundbreaking judgments in its history. 67 On the 5 th May 1993 in the case of Baher v. Miike (renamed from Baehr v. Lewin after Lawerence Miike became the new director of the Department of Health, the defendant in this case), the Hawaiian Supreme Court held that it was unconstitutional for the State to continue to deny same-sex couples the benefits of marriage, unless it could prove a compelling state interest. 68 Following this ruling, the case was remanded to the trial court. After an initial postponement, the case finally came before Judge Chang of the First Circuit Court of Hawai'i in September 1996.
In finding for the plaintiff, Judge Chang held that the State had not shown compelling evidence that such prejudice or harm to the majority would result from permitting same-sex marriages. Judge Chang went on to state that even if the State has satisfied this requirement, there was no proof that §572-1 had not been defined narrowly enough to avoid 'unnecessary abridgements of constitutional rights'. 69 Although the case was appealed to the Hawaiian Supreme Court, the case was declared moot in 1999 on the basis of the 1998 Constitutional amendment, and the decision was reversed. 70 Nonetheless, this case served as fuel for the eventual introduction of the reciprocal beneficiary scheme introduced in July 1997. The legislature had hoped that by passing Act 383 (An Act relating to unmarried couples) the complaints of same-sex couples would be answered. The Act laid down a state-sanctioned registration scheme for those couples not entitled to marry.
This desire was not, however, shared by the homosexual community in Hawai'i. Since the introduction of reciprocal benefits on the islands, numerous calls have been made for the scheme to be replaced by civil unions. The latest attempt came in February 2007, when legislation to legalise civil unions was debated in both chambers of the Hawaiian State Legislature. After the hearing in the Hawaiian House Judiciary Committee, the Hawaiian House of Representatives declined to vote on the subject, in effect neutralising the bill. 71 Both the Senate and House Bills have been carried over to the 2008 legislative session.
3.1.1.1. Establishment A reciprocal beneficiary relationship is defined as 'a legal partnership between two people who are prohibited from marriage'. 72 Moreover, the scheme is open not only to same-sex couples, but also to those within the prohibited degrees of marriage. 73 It is, however, not possible to conclude a reciprocal beneficial relationship if either party is under the age of 18, nor if either party is already involved in a marriage or another reciprocal beneficiary relationship. 74 Furthermore, there are no state residency or U.S. citizenship requirements for registration to be permitted. To have the relationship registered both parties must provide their full consent and pay the required registration fee (currently set at $8). 75 As soon as all the procedural requirements have been met, the couple is provided with a notarised declaration of the relationship by the Department of Health.

Rights and duties
Hawai'i opted to explicitly enumerate those rights, duties and benefits that apply to reciprocal beneficiaries. 76 In doing so, it refrained from extending the 160 rights currently granted to opposite-sex married couples, and instead made a selection of rights which are subsequently extended to reciprocal benefits by means of amendment. 77 Of those rights that remain in force, the most important relate to the possibility to consent to a post-mortem examination, 78 the applicability of intestate law, 79 the right to hospital visitation rights, 80 the right to compensation in cases of wrongful 81 or accidental death, 82 certain property rights, including joint tenancy, 83 holiday allowances equivalent to that of a spouse, 84 protection under Hawai'i domestic violence laws 85 and funeral leave. 86 Originally the reciprocal benefits scheme also entitled parties to benefit from the medical insurance coverage of one's partner. The Act creating the reciprocal beneficiary scheme amended §431:10A of the Hawaiian Statutes, thus granting those involved in reciprocal beneficial relationships the opportunity to avail themselves of their partner's medical insurance. 87 In 1997, the Attorney General of Hawai'i delivered two opinions that stated that Section 4, Act 383 was limited to benefits derived from insurance companies and thus did not extend to protection offered via mutual benefit societies or health maintenance organisations. 88 In Hawai'i insurance companies, mutual benefit societies and health maintenance organisations can sell health care plans to Hawaiian employers directly. By restricting the application of the provisions to insurance companies, the Attorney General in effect wiped away the relevance of this provision, since the majority of employees in Hawai'i are not insured via insurance companies.
3.1.1.3. Termination Either party may terminate a reciprocal beneficial relationship by filing a 'signed notarized declaration of the termination' with the director of health. 89 For the filing of the declaration, the parties must once again pay the required fee (currently set at $8). Once the declaration has been submitted, the director must issue a certificate of termination to each party and maintain a record of each declaration and certificate. Furthermore, a reciprocal beneficiary relationship may also be terminated by the subsequent issuance of a marriage license to either party. 90  termination of the relationship neither partner is entitled to claim alimony (or maintenance) from the other, nor any other of the rights and benefits enjoyed during the validity of the relationship. 91

Domestic partnership
Although the term 'domestic partnership' has come to be associated with the East Coast of the U.S. and is often used to refer to registration schemes in states with substantially fewer rights than those states offering civil unions, this is not always the case. The term itself was first used in a legal action brought by Human Rights Campaign employee Larry Brinkin in 1982 against the Southern Pacific Railway Company. He was denied three days of paid leave by his employer upon the death of his partner of eleven years, since this right was only granted to a widow or widower. During this case, counsel for Mr. Brinkin argued that he had been involved in a 'domestic partnership' which was akin for all intents and purposes to a marriage. Although Mr. Brinkin lost his the case, the term 'domestic partnership' became popular in California to refer to unmarried couples living together as though they were married. Just three years later, the City of Berkeley became the first municipality in the country to enact a domestic partner registry and the first employer to offer domestic partner benefits. Although the term is also used in many municipality, city and county ordinances, this article will only focus on state-wide domestic partnership schemes. 92

California
With this history in mind, it should come as no surprise that the first movement towards introducing a state-wide domestic partnership surfaced in California. In 1995, the first Bill aimed at introducing a state-wide registration scheme was submitted to the Californian Assembly. Although the Bill died in committee, it was an important step on the long and often arduous road to a full domestic partnership registry in the State. 93 Three similar bills were also introduced in 1997 and 1998, two of which despite being passed were subjected to the veto of the Governor Wilson. 94 Change came in 1999 with the passage of Assembly Bill 26 (A.B. 26). Although A.B. 26, like its counterpart Senate Bill 75, extended the partnership registry to all unmarried couples, it was later restricted to two categories, namely same-sex couples and those couples where both parties were older than 62 years of age. 95 The Governor found this proposition much more appealing, since it could not be regarded as providing a competitive alternative to marriage for opposite-sex couples. Governor Davis eventually signed the Bill into law on the 22 nd September 1999. Although modest in scope, this legislation was immensely significant since it signalled the first time in U.S. legislative history that a state legislature had dealt with the issue of same-sex The introduction of the California Domestic Partner Rights and Responsibilities Act of 2003 (or Assembly Bill 205) signalled a major shift in the legislature's approach to domestic partnerships. Although basic eligibility remained unaltered, the previous approach of enumerated rights was replaced by the wholesale presumption that domestic partners were to have all of the rights and responsibilities afforded to spouses under state law. Although certain exceptions were carved out, mainly regarding the creation and dissolution of domestic partnerships and certain tax issues, the presumption was a substantial step forward in the fight for the full legal equality of same-sex couples. Since the legislation dramatically changed the circumstances of existing domestic partnerships, the legislature directed the Secretary of State to inform all previously registered domestic partnerships of the changes and delayed the effect of the law for an additional year, until 1 st January 2005. 97 Governor Davis signed the bill into law on 19 th September 2003. 98 3.2.1.1. Establishment Although the rights and duties attached to the status of domestic partner have since been extended, the conditions which need to be met before a domestic partnership can be registered have remained virtually unchanged since their enactment. Accordingly, two adults who have 'chosen to share one another's lives in an intimate and committed relationship of mutual caring' are permitted to register as domestic partners if they satisfy a number of procedural conditions. 99 Only two persons may be involved in one registered relationship (either a marriage or domestic partnership) at any one time, and may not be related to each other by blood in a way that would prevent them from being married to each other in the state of California. 100 Both persons, who must be over the age of eighteen, may either be (a) of the same-sex or (b) be of opposite-sex as long as one of the parties is over the age of 62 and either one of them meet the eligibility criteria under Title II, 42 U.S.C. §402(a) with regards old age benefits, or Title XVI, 42 U.S.C. §1381 with regards aged individuals. 101 It is also a condition of the domestic partnership legislation that the parties have a common residence. Although §297(c) provides further clarification of the exact meaning of the term 'common residence', no geographical location is provided for this common residence, thus permitting out-of-state residents sharing the same residence to register a domestic partnership in California. The domestic partnership is established when both persons file a declaration of domestic partnership with the Secretary of State and the appropriate fee is paid. 102 After the form 247 has been filed, the couple receives a copy of the form, a certificate of registration of domestic partnership, as well as a brochure entitled 'Your future together'. 103 3.2.1.2. Rights and duties According to §297.5, 'registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses'. This therefore ensures total parity between same-sex domestic partners and oppositesex married couples. As a result domestic partners are also granted the same rights as spouses with regards, inter alia, rights and duties of spouses during the relationship, including the marital community of property and inheritance provisions, 104 adoption, 105 domestic violence, 106 and exspousal alimony. 107 Although until February 2008, with regards state tax returns, domestic partners had to use the same status as they use for their federal tax returns, i.e. unmarried, 108 this has since been amended. 109 As a result domestic partners are now permitted to file joint state tax returns. Accordingly, California now recognises domestic partners as functionally identical to spouses, in everything apart from name (as of course federal benefits).

Termination 110
A domestic partnership may be terminated in one of two ways. Firstly, if specific requirements are met, a domestic partnership may be terminated by filing a Notice of Termination with the California Secretary of State. In order to qualify, all of the following requirements must be met: both parties have lived in California for six months prior to filing; -the domestic partnership has lasted less than 5 years; -no children were born prior or during the domestic partnership; -no children were adopted during the domestic partnership; -neither partner is pregnant; -neither partner has any interest in real estate; -neither partner is renting any land or building; -except for automobile loans, the community obligations do not exceed $5,000; -except for automobiles, the community property is worth less than $33,000; -except for automobiles, neither partner has separate property totaling more than $33,000; and both parties agree to waive may rights with regards support from the other partner, except insofar as it is included in the property settlement agreement dividing the community property and community obligations.

248
If any of these conditions are not met, then either partner must initiate dissolution proceedings in the Superior Court. 112 These dissolution procedures are identical to the corresponding divorce proceedings. According to current Californian divorce law, a divorce may be granted if the parties have pleaded irreconcilable differences that have led to the irremediable breakdown of the marriage or that one of the parties is incurably insane. 113

Maine
The 121  3.2.2.1. Establishment Any mentally competent adult who satisfies the conditions laid down in §2710, Title 22, Maine Statutes may enter into a domestic partnership with one other person. Accordingly, neither partner may already be involved in a registered domestic partnership with anyone else or married to anyone else. 114 Furthermore, Maine imposes a 12-month residency requirement prior to the filing application. Through use of the word 'domiciled together' it is suggested that this 12-month period must be by virtue of a shared residence. 115 Although Title 22, Maine Statutes does not specify the age that someone must have attained in order to register a domestic partnership, use of the term 'adult' would tend to suggest that both parties must have attained the age of 18. 116 The domestic partnership register in Maine is unique in the U.S. in that it open to both same-sex and opposite-sex couples on an equal basis.
Registration of the partnership entails that the partners jointly file a declaration of domestic partnership with the Office of Vital Statistics, accompanied by the required filing fee (currently set at $35). The declaration must be under oath and their signatures must be notarised prior to filing the declaration. No ceremony is permitted. Once the registry has received the declarations they will be filed, with two copies returned to the parties at their common residence. 117

Rights and duties
The aim of the 'Act to promote the financial security of Maine's families and children' was not the equalisation of the position of same-sex and opposite-sex couples. Instead the Act aimed to extend a limited number of rights, which were at that time restricted to opposite-sex married couples, to other couples that had evidenced 'a commitment to remain responsible indefinitely for each other's welfare'. 118 As a result, the Act only affected rights in the field of inheritance and medical decision-making. Accordingly, if a domestic partner dies without a will, trust, or other estate plan, the surviving domestic partner shall inherit the deceased partner's property in the 119 Me. Rev. Stat. Ann. Tit 18-A, §1-201.17, §2-102. This means that a surviving domestic partner would inherit the entire estate, half the estate plus $50,000, or half the estate, depending on whether the deceased domestic partner has surviving children or parents. 120 Me. Rev. Stat. Ann. Tit. 22, §2843-A.1.D. If parties neglected to register with the state but can show that they meet the definition of domestic partners in §2710, this right will also be extended to them. This does not, however, extend to intestacy rights. 121 Me. Rev. Stat. Ann. Tit. 22, §2710.4. It is not expressly stated that the partners must marry a third person. It is therefore to be expected that should an opposite-sex couple subsequently marry each other, this marriage will automatically terminate their domestic partnership. 249 same manner as a surviving spouse. 119 A domestic partner will, furthermore, also be considered the first next of kin, in the same manner as a spouse is the first next of kin, when determining who has the right to make funeral and burial arrangements. 120

Termination A domestic partnership is terminated if:
either domestic partner gets married; 121 -a notice of termination is filed indicating each partner's consent to the termination. This declaration must be signed by both domestic partners in the presence of a notary; 122 or a notice under oath from either domestic partner that the other domestic partner was directly given a notice of intent to terminate the partnership. If giving notice by hand is not feasible, then a different way of giving notice may be accomplished as provided by the Maine Rules of Civil Procedure for commencement of a civil action. Termination under this method is not effective until 60 days after the notice has been given. 123

New Jersey
Prior to the introduction of civil unions (see §5.3), domestic partnership was the only way option for same-sex couples wishing to have their relationship publicly recognised. 124 As of the 19 th February 2007, this is no longer the case. Since this date, domestic partnerships are only allowed to be registered if both parties to the domestic partnership have attained the age of 62. Nonetheless, all those domestic partnerships entered into between 10 th July 2004 and the 19 th February 2007 remain unaltered with regards to the rights and responsibilities of domestic partnerships. All those domestic partners eligible to convert their domestic partnership into a civil union were given notice of this possibility prior to the entry into force of the civil union legislation. As a result of these legislative changes, domestic partnerships in New Jersey will remain outside the scope of this article.

Oregon
On the 8 th July 2005, the Oregon Senate approved legislation to allow same-sex civil unions. As originally written, Senate Bill 1073 would have created civil unions and prohibited discrimination based on sexual orientation. However, on the 21 st July, the House performed a series of moves aimed at torpedoing the bill, removing most of its language. Instead of containing anti-discrimination provisions and reference to civil unions, the bill referred to the state constitutional amendment and proposed to create a system of reciprocal benefits. The changes effectively killed momentum to pass the bill, which died in committee. 3.2.4.1. Establishment Although a marriage in Oregon can be celebrated as soon as a person attains the age of 17, 125 a domestic partnership may only be concluded between parties both of whom who have reached the age of 18. 126 Furthermore, domestic partnership is only open to same-sex couples, one of whom must be resident in Oregon. 127 The prohibited degrees of relationship are, however, identical to those applicable to aspirant married couples. 128 Furthermore both facets of the principle of exclusivity are adhered to, namely that only two people may conclude a domestic partnership, and neither party may already be involved in a marriage, nor another domestic partnership. 129 Two individuals wishing to become partners in a domestic partnership must complete and file a declaration of domestic partnership with the county clerk. In county clerk registers the declarations and returns a copy of the registered form, as well as a certificate of registered domestic partnership to the partners. 130 Signatures must be witnessed by a notary public. 131 The fee required varies per county, but is normally between $40-$50).

Rights and duties
According to sec. 9, 'Any privilege, immunity, right or benefit granted by statute, administrative or court rule, policy, common law or any other law to an individual because the individual is or was married, or because the individual is or was an in-law in a specified way to another individual, is granted on equivalent terms, substantive and procedural, to an individual because the individual is or was in a domestic partnership or because the individual is or was, based on a domestic partnership, related in a specified way to another individual.' As a result domestic partners and spouses have been placed on an identical footing as regards the rights and duties incumbent on the parties to such relationships. 132

Termination
If the domestic partnership was solemnized in Oregon and either party is a resident of or domiciled in Oregon at the time the suit is commenced, a suit for its annulment or dissolution may be maintained where the ground alleged is one set forth in §106.020 or §107.015. 133 When the civil union was not solemnized in Oregon or when any ground other than set forth in §106.020 or §107.015 is alleged, at least one party must be a resident of or be domiciled in Oregon at the time the suit is commenced and continuously for a period of six months prior thereto. In turn this means that civil unions will need to be dissolved when 'irreconcible differences have led to the irremediable breakdown of the marriage'. 134

Washington
As already stated above, although Washington has not passed a constitutional amendment, the statutory definition of marriage has been amended so as to restrict it to marriages between opposite-sex couples. Furthermore, shortly after the Washington Supreme Court upheld the validity of this ban, two bills were submitted to the Washington Senate. The first would have opened up marriage to same-sex couples (and thus overturned the ban on same-sex marriage), 135 whilst the other bill aspired to introduce a domestic partnership registry. 136 The bill aimed at opening marriage to same-sex couples died in committee, whilst the domestic partnership bill received warm support in both the House (28 votes to 19) and the Senate (63 votes to 35). The In enacting this legislation, the legislature identified two separate groups that would be served by the legislation, 'The legislature finds that same sex couples, because they cannot marry in this state, do not automatically have the same access that married couples have to certain rights and benefits, such as those associated with hospital visitation, health care decision-making, organ donation decisions, and other issues related to illness, incapacity, and death. Although many of these rights and benefits may be secured by private agreement, doing so often is costly and complex. The legislature also finds that the public interest would be served by extending rights and benefits to different sex couples in which either or both of the partners is at least sixty-two years of age. While these couples are entitled to marry under the state's marriage statutes, some social security and pension laws nevertheless make it impractical for these couples to marry. For this reason, Chapter 156, Laws of 2007 specifically allows couples to enter into a state registered domestic partnership if one of the persons is at least sixty-two years of age, the age at which many people choose to retire and are eligible to begin collecting social security and pension benefits.' 138 3.2.5.1. Establishment The principle of exclusivity is also upheld in Washington's registration scheme, since the scheme is restricted to two persons of whom neither is married to someone other than the party to the domestic partnership and neither person is in a state registered domestic partnership with another person. 139 Although at first glance the phrase 'neither person is married to someone other than the party to the domestic partnership' would appear straight forward, a certain element of ambiguity does arise since the domestic partnership scheme in Washington is not only open to same-sex couples, but also to opposite-sex couples if either one of the parties is over the age of 62. 140 Read together, these provisions mean that married opposite-sex couples over the age of 62 are permitted to enter into a domestic partnership, despite the fact that they are already married to each other. Although there would be no advantage from doing so, it is strange that the legislature has not prevented this possibility.
Although the parties must also share a common residence, the geographical location of this residence does not have to be in Washington State. A couple living together in Oregon or Idaho are thus permitted to enter into a domestic partnership in Washington, subject to fulfilling all the other requirements. Furthermore, neither party may be a sibling, child, grandchild, aunt, uncle, niece, or nephew to the other person, nor may either person be nearer of kin to each other than second cousins, whether of half or whole blood. 141 If all the abovementioned conditions are satisfied, the parties may file a signed, notarised declaration to the Secretary of State. 142 Once the declaration has been received, verified and a fee paid (currently set at $50), 143  .1, namely (a) a current lease or rental agreement for residential property that names both applicants as occupants of the premises named in the lease or rental agreement; (b) a mortgage for residential property that names both applicants as mortgagors; (c) a deed for residential property that states that both applicants share title to the premises named in the deed; (d) utility bills for residential property that name both persons as being responsible for payment of the utility fees for the same address; or (e) an affidavit executed within the previous six months in which the parties each state under penalty of perjury that both domestic partners share the same residence.  3.2.6.1. Establishment Unlike many of the other domestic partnership schemes, the institution created in District of Columbia is open to both same-sex and opposite-sex couples. Furthermore, domestic partnerships are also permitted between people who are related by blood (e.g., siblings or a parent and adult child, provided both were single). 169 Nonetheless, the principle of exclusivity is still adhered to, both in terms of the prohibition on multiple simultaneous formal relationships, as well as with respect to the 'two persons' requirement. 170 The parties, both of whom must be over the age of 18, must also share a common residence. 171 The exact geographical location is not further specified, thus permitting out-of-state residents to register their partnership in the District of Columbia. 172 To become domestic partners, the parties must appear in person, provide documentation to establish that they satisfy the registration requirements, submit a single application for registration, and pay the appropriate fee (currently set at $45).

Rights and duties
The domestic partnership laws as they applied up until the recent amendment provided couples registered as domestic partners the same rights as family members to visit their domestic partners in the hospital and to make decisions concerning the treatment of a domestic partner's remains after the partner's death. Registration also granted District of Columbia Government employees a number of benefits. Furthermore, domestic partners were eligible for health care insurance coverage, could use annual leave or unpaid leave for the birth or adoption of a dependent child or to care for a domestic partner or a partner's dependents, and could make funeral arrangements for a deceased partner. Although a number of legislative amendments were made to the rights and duties after the implementation of the law in 2002, the substantial package of rights and duties remained more-or-less unaltered until 2006. 173 As a result of the 2006 amendment, the methodology and ideology behind the institution has made a paradigm shift. Instead of using the enumeration method, the District of Columbia legislature has moved to an exclusion method, whereby all the rights and duties applied to married couples are now mutatis mutandis applicable to domestic partners, unless otherwise provided. The new law equates the position of domestic partners and spouses in many areas including, inter alia, mortgages, intestate succession, child support and premarital agreements.

Connecticut
On the 1 st October 2005, Connecticut became the third US State to introduce a registry for samesex couples entitled the 'civil union registry'. Unlike its predecessors, New Jersey and Vermont, Connecticut's decision to introduce a civil union registry was neither pre-empted nor mandated by a judicial decision. Nonetheless, cases did appear before the judiciary in Connecticut claiming that the inability for same-sex couples to marry was unconstitutional.
Even since the enactment of the Act concerning Civil Unions, same-sex couples continue to fight for the right to marry. 180 For example, eight same-sex couples brought a legal action before the state's courts, challenging the state's alleged discriminatory exclusion of same-sex couples from the right to marry. On 12 th July 2006 a Superior Court judge court ruled against them arguing that: 'Civil union and marriage in Connecticut now share the same benefits, protections and responsibilities under law (...) The Connecticut Constitution requires that there be equal protection and due process of law, not that there be equivalent nomenclature for such protection and process.' In concluding, the judge held that denying same-sex couples the right to marry did not violate Connecticut's Constitution. This decision has been appealed to the Supreme Court of Connecticut and arguments were heard on the 14 th May 2007; the decision is still pending.
Activity has also been evident in the Connecticut Legislature with a bill having been introduced to the House on the 31 st January 2007 aimed at providing same-sex couples with full marriage rights. 181 Although the bill passed the judiciary committee, the bill was never submitted to the full House or Senate, more than likely because Governor Rell said that she would veto any move to pass same-sex marriage legislation.
3.3.1.1. Establishment Any two 'eligible persons' may enter into a civil union in Connecticut. This means persons over the age of eighteen, 182 who are of the same-sex, 183 and neither party is already married or involved in a civil union. 184 Although perhaps verging on the bounds of this article, 185 problems have arisen as regards the extent to which out-of-state registered relationships will be recognised with respect to this provision. In an opinion on the 20 th September 2005, the Attorney General of Connecticut stated that, '1. Couples with a Vermont civil union or a California domestic partnership will be treated in Connecticut in the same way as a couple with a Connecticut civil union, but cannot also enter into a Connecticut civil union; 2. Same-sex couples with an out-of-state marriage, e.g. from Massachusetts or Canada, can enter into a Connecticut civil union, but the state of Connecticut will not recognize their marriage as valid; and 3. Couples with a form of domestic partnership other than from California might or might not be able to enter into a Connecticut civil union depending upon a comparison of the specific provisions of the out-of-state domestic partnership law to Connecticut law.' 186 Furthermore, according to § §46b-38bb, in conjunction with § §46b-38cc, kindred are prohibited to the virtually the same extent from entering into civil unions as they are prevented from marrying. 187 Similarly to marriage, Connecticut also has no residency requirement for entering into a civil union. In order to register a civil union, both parties must appear and make an application before the registrar of the town in which either: (1) the civil union is to be celebrated, or (2) either person to be joined in the civil union resides. 188 However, it would seem that parties may appear before the registrar separately since the law provides that 'if the license is signed and sworn to by the applicants on different dates, the earlier date shall be deemed the date of application.' The statute also requires that the 'license shall be completed in its entirety, dated, signed and sworn to by each applicant and shall state each applicant's name, age, race, birthplace, residence, whether single, widowed or divorced and whether under the supervision or control of a conservator or guardian.' 189 Once the application has been filed, the couple has 65 days to enter into a civil union. The same individuals authorised to legally join two people in marriage are authorized to join two people in a civil union. 190 This means that religious officials may also preside over civil unions.

257
They may do so 'in any town in the state', 191 although not for non-resident couples, since these civil unions must be celebrated at the place where the licence was issued.

Rights and duties
According to §46b-38nn, 'parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether derived from the general statutes, administrative regulations or court rules, policy, common law or any other source of civil law, as are granted to spouses in a marriage.' Accordingly now significant changes were necessary to Connecticut's statutes. From 1 st October 2005, all those laws granting rights to 'spouses', 'husbands' and 'wives' were equally extended to those involved in civil unions.

Termination
No specific dissolution laws were passed alongside the civil unions registry. Instead, all laws and regulations regulating Connecticut divorce law are equally applicable to those involved in a civil union. This means that either party must (a) have been resident in the state for at least 12 months immediately preceding the date of the filing of the complaint, (b) one of the parties was domiciled in Connecticut at the time of the civil union and returned to Connecticut with the intention of permanently remaining before the filing of the complaint; or (c) the cause for the dissolution of the marriage arose after either party moved into this state. The grounds for the dissolution are also identical to those applicable for divorce in the state. This includes both fault and no-fault grounds. Unlike New Hampshire, it would appear that Connecticut does not restrict adultery to heterosexual sexual intercourse. 192

New Hampshire
New Hampshire became the fourth state to recognize civil unions when Governor Lynch signed the bill into law on 31 st May 2007. The law has been effective since 1 st January 2008. The law itself is one of the shortest of all the ten states to have enacted registration schemes for same-sex couples. The move to introduce civil unions came without any court order or even the existence of a marriage lawsuit.
3.3.2.1. Establishment Although the age to register a civil union is not markedly different from other states, namely 18, it is different from the applicable age limits set for marriage in New Hampshire. 193 At present, males may marry, subject to parental permission, from the age of 14 and females from the age of 13. 194 Although as regards the prohibited degrees of marriage, the prohibitions are fundamentally identical, one unexplainable difference is apparent, namely that civil unions are expressly prohibited with one's grandparent, although this restriction does not apply to marriages in the State. 195 There is no residency requirement for marriage in New Hampshire and, by clear implication, no residency requirement for a New Hampshire civil union. Although complexities could occur with respect to the residency requirements in New Hampshire, 196 first indications would seem to point to this provision currently not being interpreted so as to prevent out-of-state couples from registering a civil union in New Hampshire. 197 As regards the formal ceremonial aspects, exactly the same procedure is applicable to the formation and registration of a civil union as that used to solemnise a marriage. 198 The only difference being that a minister, clergyman or clergywoman is not obliged to perform a civil union. 199 3.3.2.2. Rights and duties According to N.H. Rev. Stat. §457-A:6 and notwithstanding any law to the contrary, 'the parties to a civil union will be granted all the rights and subject to all the obligations and responsibilities provided for in the state law that apply to parties' who are married.

Termination
New Hampshire has also opted to apply its divorce legislation mutatis mutandis to the dissolution of a civil union. 200 This means that the divorce grounds will need to be applied to the dissolution of a civil union, namely the general 'irreconcilable differences' 201 ground and the fault-based grounds listed in N.H. Rev. Stat. §458. Although there are obviously certain advantages to the simple corresponding application of the divorce provisions to the dissolution of a civil union, many of these grounds will need to be 'reinterpreted' by the courts. Take, for example, adultery. In a 2003 case, the Supreme Court of New Hampshire held that a homosexual relationship between a married person and another did not constitute adultery within the meaning of N.H. Rev. Stat §458:7, II. 202 As the law currently stands a civil union partner could therefore only obtain dissolution of the civil union if his or her partner had sexual intercourse with a person of the opposite-sex! A further issue also arises with respect to dissolving a New Hampshire civil union. According to New Hampshire law, the courts will only have jurisdiction to dissolve a civil union or a marriage if (a) both the parties were domiciled in New Hampshire when the action was commenced, (b) the plaintiff was so domiciled and the defendant was personally served with process within the state or (c) the plaintiff was domiciled in the state for one year prior to the action being filed. 203 If one reads these requirements in conjunction with the lack of residency requirements for registration of a civil union, one will immediately see the problem; although out-of-state couples may register their civil union in New Hampshire, they will have to reside at least one year in New Hampshire to be able to dissolve it!

New Jersey
On 14 th June 2005, the New Jersey Court of Appeal (2-1 decision) held in the case of Lewis v. Harris that excluding same-sex couples from the right to marry did not violate the New Jersey Constitution. 204 On 25 th October 2006, the New Jersey Supreme Court overturned the Court of Appeal, holding that it was unconstitutional to deny same-sex couples the rights and benefits provided of marriage. 205 The court reserved the question of whether those rights and benefits must be called marriage and directed the legislature to provide either marriage or another form of relationship recognition. In December 2006, the New Jersey legislature passed a civil unions law, which took effect in February 2007.

Establishment
For two persons to establish a civil union, they must satisfy all of the following criteria: neither may be a party to another civil union, domestic partnership or marriage recognised in the state of New Jersey; -noth parties must be of the same sex and therefore be excluded from the marriage laws of New Jersey; -both parties must have attained the age of eighteen, except as provided for in Section 10. 206 These conditions therefore ensure that both aspects of the exclusivity principle are adhered to. Furthermore, although these are the only eligibility criteria specifically applicable to civil unions, the marriage provisions have also been amended. It is there that one finds reference to those relatives not entitled to register a civil union; the list is identical for both opposite-sex marriages and same-sex civil unions. 207 With regards to the procedure, the marriage or civil union license must be obtained from the registrar in the New Jersey municipality in which either applicant resides. Since there are no residency requirements imposed on aspirant civil union partners, should out-of-state residents wish to celebrate a civil union, they must file the declaration with the municipality where they intend to celebrate their civil union. Once the forms have been submitted, the relevant fee (currently set at $28) has been paid and the licence has been issued, the civil union is deemed to come into existence. 208

Rights and duties
On the basis of the decision in Lewis v. Harris, §37:1-31.4.a states that 'civil union couples shall have all of the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, public policy, common law or any other source of civil law, as are granted to spouses in a marriage.' Although thereafter a number of rights and benefits are explicitly mentioned, these are not to be regarded as exclusive. Instead the New Jersey legislature has opted for the exclusionary method, whereby all rights granted to married couples are extended to those involved in a civil union, unless stated otherwise. 209

Termination
According to §37:1-31(b), the 'dissolution of civil unions shall follow the same procedures and be subject to the same substantive rights and obligations that are involved in the dissolution of a marriage'. This therefore means that §2:34-2 will apply to the grounds upon which a civil union may be terminated in New Jersey. Adultery is also a ground for divorce in New Jersey. However, in S.B. v. S.J.B., the Superior Court of New Jersey held that a homosexual relationship did constitute adultery for the purposes of construing the New Jersey divorce statutes. 210 It is therefore to be presumed that this will also apply equally to the dissolution of civil unions.
Jurisdiction will be founded if either party was a bona fide resident of New Jersey both at the time the cause of action arose, as well as at the time of the commencement of the action. However, no action may be filed for any cause other than adultery, unless one of the parties has been a bona fide resident for the year preceding the commencement of the action. 211

Vermont
On 20 th December 1999, the Vermont Supreme Court held in Baker v. State 212 that refusing to provide committed same-sex partners with the benefits and privileges granted to married couples violated the Vermont Constitution's Common Benefits Clause. In response to the court's decision, the Vermont legislature enacted a law permitting same-sex couples to enter into civil unions. As a result, Vermont became the first state in the United States to enact a registration scheme akin to marriage specifically for the registration of same-sex couples.

Establishment
Vermont also adheres to both facets of the principles of exclusivity, ensuring that civil unions in the state are only possible between two persons who are not already involved in another civil union or marriage. 213 Both parties must be of the same-sex and must have attained the age of 18. 214 There are no residency requirements imposed on aspirant civil union partners. 215 Those prohibited from registering a civil union on the basis of their affinity or consanguinity are identical to those prohibited from entering into a marriage. 216

Rights and duties
Despite the fact that Vermont has chosen to enumerate all those rights and duties which are extended to partners in a civil union, 217 it has actually extended all state benefits to such couples. The first paragraph of §1204 states that 'Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law, or any other source of civil law, as are granted to spouses in a marriage'. This catch-all provision would appear to negate the need to then continue to specify all the individual rights and duties incumbent on civil union partners.

Termination
Also as regards the dissolution of the relationship, Vermont applies the law applicable to married couples mutatis mutandis to civil unions. As a result those wishing to dissolve their civil union in Vermont will have to show evidence satisfying one of the divorce grounds in 15 Vt. Stat. Ann. §551. This list includes 'adultery', which in Vermont has not yet been defined as either including or excluding 'homosexual activity'. 218 As a result, it is unclear whether a same-sex civil union partner can rely on the 'adultery' ground if his or her partner has engaged in 'extra-civil-union sex' with someone of the same sex.

Massachusetts
'The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens.' 219 Against this background, the Supreme Judicial Court of Massachusetts went on to hand down its momentous decision in the 2003 case of Goodridge v. Department of Public Health. 220 Interpreting the legislature's intent using the plain meaning of the marriage licensing statutes, the court recognised 'the long-standing statutory understanding, derived from the common law, that 'marriage' means the lawful union of a woman and a man. But that history cannot and does not foreclose the constitutional question.' 221 After pointing out that 'civil marriage is an esteemed institution, and the decision whether and whom to marry is among life's momentous acts of self-definition', 222 the court sketched the most important of the tangible and intangible benefits associated with marriage. According to the state constitution 'both the equality and liberty [provisions] guarantee, [that the] regulatory authority must, at very least, serve a legitimate purpose in a rational way; a statute must bear a reasonable relation to a permissible legislative objective.' 223 The court concluded that the marriage ban does not meet even this lowest standard of constitutional review, so there is no need to consider whether the case merits a stricter judicial scrutiny. 224 The Department of Public Health provided three rationales for the ban: '(1) providing a 'favorable setting for procreation'; (2) ensuring the optimal setting for child rearing, which the Taking these in turn, the court first analysed that with the civil marriage laws, 'it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.' 226 Subsequently, the court explained that although protecting the welfare of children is a paramount State policy, '[r]estricting marriage to opposite-sex couples (…) cannot plausibly further this policy' of creating an optimal setting for child rearing because, among many other stated reasons, '[t]he "best interests of the child" standard does not turn on a parent's sexual orientation or marital status.' 227 Indeed, the court finds that 'excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure, but it does prevent children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of "a stable family structure in which children will be reared, educated, and socialized".' Finally, the court dismissed the logic behind the Department's third rationale stating that a ban on same-sex marriage bears no rational relationship to the goal of economy, stating that it ignores the reality of many same-sex couples, including the named plaintiffs, who have children and other dependents in their care. 228 After recognising that the decision marked 'a significant change in the definition of marriage', 229 the court gave reassurance that the definitional change would 'not disturb the fundamental value of marriage' 230 in U.S. society. The court also rejected the argument that expanding civil marriage in Massachusetts would lead to interstate conflict. Just as Massachusetts won't dictate to other states how they should respond to this decision, 'neither should considerations of comity prevent us from according Massachusetts residents the full measure of protection available under the Massachusetts Constitution'. 231 In the end, the court construed 'civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others.' 232 As regards all conditions with respect to the establishment of a same-sex marriage, the rights and duties incumbent of the couple and the method applicable termination procedures, no difference is discernible between same-sex and opposite-sex marriages. Nonetheless, one important distinction is worth noting, namely that of residency.
According to the Supreme Judicial Court of Massachusetts, three categories of states must be distinguished from each other when determining the residency requirements for entry into a same-sex marriage in Massachusetts. 233 The first category of states are those states whose marriage licencing laws say that a marriage entered into by a same-sex couples at home would be void. 234 Any same-sex marriage celebrated by a resident from one of these states will be void in Massachusetts. The second category includes those states referred to as 'prohibited home states'. In these states, marriage licencing laws prohibit same-sex couples from marrying, but do not go so far as to declare such marriages to be 'void'. 235 Any same-sex marriage celebrated by a resident from one of these states will be voidable in Massachusetts. According to Cote-Whitacre v. Department of Health, same-sex couples who live in states from either of these two categories will not be permitted to marry in Massachusetts, unless they indicate an intent to reside in Massachusetts after marrying. 236 The third category includes those states whose marriage licencing laws are 'silent or ambiguous' on the question of marriage because they do not expressly allow or expressly prohibit same-sex couples from marrying there. Thus far, it has been determined that Rhode Island does not prohibit same-sex marriages and that New York did not prohibit such marriages until the 6 th July 2006. 237 In July 2007, the Massachusetts Department of Public Health also determined that New Mexico fits this definition. 238

California
On the 15 th May 2008 the Californian Supreme Court finally gave its decision in the In re Marriage Cases. This case was a consolidated appeal of no fewer than six individual cases. 239 The main legal question put before the Supreme Court was whether it was unconstitutional to differentiate the formalised union of a different-sex couple, regarding this as a 'marriage' and the formalised union of a same-sex couple, regarding this as a 'domestic partnership'. 240 Although the Court acknowledged that there were indeed still minor differences between marriage, on the one hand, and domestic partnership, on the other, 241 it found that these two institutions existed as functional equivalents of each other. 242 In answering this question the Court needed to determine the nature and scope of the right to marry. Referring to previous decisions of the Court, 243 the Supreme Court held that the right to marry is a fundamental constitutional right embodied in the Californian Constitution; a right that has over the decades changed with regards to its scope. 244 The Court, referring to Perez, noted that the examination of the right to marry must focus on 'the nature and substance of the interests' and explicitly referred to the repeated recognition that the right to marry represents 'the right of an individual to establish a legally recognised family with the person of one's choice, 245 In re Marriage Cases, No. S14799 (Cal. May 15, 2008) and, as such, is of fundamental significance both to society and to the individual'. 245 However, the Court also recognised that the role of civil marriage is not only to serve the interests of society. Instead, it recognised that the right to marry is a basic, constitutionally protected right, a fundamental right of all free men and women.
On this basis the Court found that the right to marry is an integral component of an individual's personal autonomy interest protected by the privacy provision of Article I, Section 1 and an individual's liberty interest protected by the due process clause of Article I, Section 7. Although the Court acknowledges that state marriage has always been limited to a union between one man and one woman, it also admits that tradition alone cannot be regarded as a sufficient justification for perpetuating (without examination) the restriction or denial of a fundamental constitutional right.
In moving to the particular case at hand, the Court argues that the State can transformed its own appreciation and understanding of homosexuality, admitting that the State now recognises that gay individuals are fully capable of entering into 'the kind of loving and enduring committed relationships that may serve as the foundation of a family'. 246 Furthermore, the court refused to accept the contentions of the Proposition 22 Legal Defense Fund and the Campaign for Californian Families that the right to marry was inextricably linked to the possibility to procreate. The Court stated, 'Men and women who desire to raise children with a loved one in a recognised family but who are physically unable to conceive a child with their loved one have never been excluded from the right to marry. Although the Proposition 22 Legal Defence Fund and the Campaign assert that the circumstances that marriage has not been limited to those who can bear children can be explained and justified by reference to the State's reluctance to intrude upon the privacy of individuals by inquiring into their fertility, if that were an accurate and adequate explanation for the absence of such a limitation it would follow that in instances in which the Stats is able to make a determination of an individual's fertility without such an inquiry, it would be constitutionally permissible for the State to preclude an individual who is incapable of bearing children from entering into marriage. There is, however, no authority whatsoever to support the proposition that an individual who is physically incapable of bearing children does not possess a fundamental constitutional right to marry.' 247 Having established that same-sex couples were guaranteed the same substantive constitutional rights as different-sex couples to choose one's life partner and enter with that person into a committed, officially recognised and protected family relationship that enjoys all the constitutionally based incidents of marriage, the court moved on to the core question of whether it was legitimate for the State to assign different names to the individual institutions (i.e. marriage for different-sex couples and domestic partnership for same-sex couples). In drawing inspiration from the Perez case involving the prohibition on interracial marriages, the court held that in drawing a distinction is the name of the institutions, the State was withholding from same-sex couples the 'historic and rightly respected designation of marriage'.

265
Surprisingly the court in assessing the equal protection claim under the Californian Constitution argued that the claim must be analysed on the basis of the strict scrutiny test and not according to the rational basis standard of review. 248 What is perhaps even more surprising that this was accepted with regards to sexual orientation discrimination. This therefore places sexual orientation discrimination on the same level as sex and race discrimination in California; perhaps the most groundbreaking element of the decision, alongside the factual opening up of civil marriage to same-sex couples. In reaching the conclusion that the strict scrutiny standard must be applied the court first had to identify why sexual orientation was a 'suspect classification'. Reference was made to the Californian Court of Appeal's decision in Sail'er Inn, Inc. v. Kirby, 249 in which a three criteria test was outlined, in that the defining characteristic must (a) be based upon an 'immutable trait'; (b) bear no relation to a person's ability to perform or contribute to society, and (c) be associated with a stigma of inferiority and second class citizenship.
Although the Supreme Court agreed with the Court of Appeal's decision in that the last two criteria were indeed satisfied, it disagreed with the Court of Appeal's reasoning with regards to the first criterion. 250 The majority Supreme Court argued that regardless of whether sexual orientation is immutable, immutability is not a requirement for suspect classifications, since religion is also regarded as a suspect classification and religion is not immutable.
In applying the strict scrutiny test, the Court forced the State to provide a constitutionally compelling state interest in treating the two categories of individuals differently. Furthermore, the State must also show that the measures taken are not only related to that interest, but also that they are necessary to further that interest. In defending the disparate treatment, the State argued that the term 'marriage' has traditionally been defined as a union of one man and one woman. The court vehemently rejected this argument stating 'if we have learned anything from the significant evolution in the prevailing societal views and official policies toward members of minority race and toward women over the past half-century, it is that even the most familiar and generally accepted of social practices and traditions often mask an unfairness and inequality that frequently is not recognised or appreciated by those not directly harmed by those practices or traditions'. 251 The court eventually concluding that the State interest did not satisfy the constitutional compelling test since it was not clear that the measure taken was necessary to protect those rights currently enjoyed by those people who may marry; 'extending access to the designation of marriage to same-sex couples will not deprive any opposite-sex couple or their children of any of the rights and benefits conferred by the marriage statutes.' 252 Although the Court holds that the necessary remedy to is strike Section 300 from the Californian Family Code and open civil marriage to same-sex couples, the Court does not provide any answer to question of what should happen with the current domestic partnerships and the institution of domestic partnership as such. Since the institution is also currently used by different-sex couples over the age of 62, it is unclear what the State will do with regards this point. Will California become similar to another New Jersey retaining domestic partnership for the elderly? Or will California progress towards the Massachusetts model and retain one institution open to all?

New Mexico
The validity in New Mexico of a same-sex marriage contracted in Massachusetts has not been challenged. New Mexico has not passed a constitutional amendment restricting marriage to opposite-sex couples, nor has it statutorily restricted marriage to such couples. The question therefore remains open.

New York
New York is one of the five states not to have enacted any form of statutory restriction with regards same-sex marriage. As a result, the question currently remains open as to whether samesex marriages legally performed in other jurisdictions will be recognised in New York. In 2004, both New York State Comptroller Hevesi, 253 and New York Attorney General Spitzer, issued opinions affirming the belief that out-of-state same-sex marriages should be recognised as valid in New York with respect to the state's retirement system and for all areas of the law, respectively. 254 Not long after these opinions, New York City Mayor Bloomberg also requested the state's five pension schemes to recognise those involved in same-sex marriages, civil unions and domestic partnerships for the purposes of city employee benefits. All three of these decisions are, however, being challenged in the courts.
In February 2008, the Fourth Department of the New York Appellate Division ruled that a same-sex marriage in Canada should be recognised in New York. In Martinez v. County of Monroe, the court reasoned as follows. Firstly, out-of-state opposite-sex marriages that would not have been legal in New York are only refused recognition if recognising them would violate the state's public policy. On this basis out-of-state same-sex marriages must be held to a similar standard. 255 It is therefore essential to determine whether the recognition of same-sex marriages validly concluded in another jurisdiction is against the public policy of New York. In concluding that same-sex marriage recognition is not against the public policy of New York, the Appellate Division reversed the trial judge's ruling that Monroe Community College did not have to extend health benefits to an employee's same-sex spouse. Monroe County subsequently announced its intention to move for leave to appeal the decision to the Court of Appeals. Nonetheless, in the meantime, the decision has already begun its precedential working. Less than a month later, in

267
Alongside the debate surrounding the recognition of same-sex marriages, case law has begun to develop on the basis of the recognition of out-of-state civil unions. In Langan v. St. Vincent's Hospital of New York, the claimant and the decedent had entered into a civil union in Vermont. The decedent was struck by a car while he was working for the claimant's insurance business, resulting in a serious leg injury. Whilst undergoing surgery on his leg, the decedent died. The claimant commenced a wrongful death action against the hospital where the surgery was performed. The Second Department of the Appellate Division held that a civil union partner could not sue the hospital to recover damages for wrongful death because he did not qualify as a surviving spouse, 257 thus reversing the original decision of the trial judge. 258 The claimant also filed for worker's compensation as the decedent's spouse pursuant to §16(1-a), Worker's Compensation Law. The Third Department of the Appellate Division rejected his claim stating that principles of comity did not require the New York courts to recognise a Vermont civil union. 259 Furthermore, debate has also been intense regarding the right of New York residents to enter into same-sex marriages in New York. 260 In 2004, the mayor of the village of New Paltz was charged with solemnizing marriages for individuals who had not obtained marriage licences. 261 The mayor argued that the licensing requirement in the New York statute was unconstitutional and thus asked for dismissal of the charges in the interests of justice. In dismissing the charges Justice Katz noted the permanent injunction issued by Supreme Court Justice Kavanagh to prevent the issuance of more licences, as well as the constitutional implications of denying same-sex couples licences. In 2006, the Court of Appeals of New York (New York's highest court) held that the Constitution of New York does not compel the state to issue marriage licences to same-sex couples. 262 More recently, although a Senate Bill seeking to legalise samesex marriage died in committee, an identical bill submitted to the House is now up for third reading, after being passed 85-65 votes. 263

Rhode Island
In the absence of a state DOMA, the question has been posed whether Rhode Island will recognise same-sex marriages from other states, despite the fact that its own residents cannot lawfully marry in their own state. On the 20 th February 2007, Attorney General Lynch issued a public statement in which he declared that same-sex marriages lawfully concluded in Massachusetts would be entitled to recognition in Rhode Island. 264 In arriving at his conclusion, Attorney General Lynch identified the public policy of Rhode Island with respect to marriage, stating that 'Rhode Island has not enacted any legislation prohibiting same-sex marriages or stating a public policy against same-sex marriages even though they have been validly performed in neighbouring Massachusetts for approximately three years.' 265 Furthermore, Rhode Island had passed legislation specifically enunciating its affirmative policy to prevent discrimination on the basis of sexual orientation. Taken together with other favourable conditions, such as the extension of health insurance benefits to domestic partners of state employees 266 and the courts recognition of de facto parental status for same-sex non-biological parents, 267 Lynch comes to the conclusion that same-sex marriages are not against the public policy of Rhode Island. Accordingly on the basis of the principles of full faith and credit and comity, a same-sex marriage validly concluded elsewhere will be recognised in Rhode Island. Whether this treatment extends to the recognition of civil unions, domestic partnerships and reciprocal benefits is unclear.
Although not technically binding, the opinion does provide a clear idea of the relevant legal principles involved specifically addressing the legal situation in Rhode Island. Furthermore, it makes a strong argument for supporting the view that there is nothing in the public policy of Rhode Island that would prevent the recognition of same-sex marriages. To add further fuel to the fire, the legislature has also been confronted with a number of specific attempts to either legalise same-sex marriages in the state or introduce a form of civil union. 268 This open and liberal attitude has, however, recently been thrown into doubt as a result of the Supreme Court decision in Chambers v. Ormiston. 269 The case centred around a female samesex couple legally married in Massachusetts. They filed for divorce in Rhode Island, and the Supreme Court had to determine whether or not they had subject-matter jurisdiction. In the 3-2 decision, the court held that in determining the meaning of the word 'marriage' in the divorce statutes, reference had to be made to the ordinary meaning of the word 'at the time of enactment'. In so doing, the court came to the conclusion that the ordinary meaning of the word marriage was to be understood as a legal union between 'one man and one woman'. As a result, the court held that it did not have subject-matter jurisdiction to grant a divorce. The effects of this case have yet to be determined, however, it is to be hoped that the heed will be taken of the court's reluctance to extent the ambit of the holding beyond the material facts of the case at hand. 270

Comparative remarks
This article has attempted to provide a (brief) summary of the various statutory registration schemes currently available across the U.S. In doing so, the complexity of the substantive law situation is abundantly clear. This section compares the variety of registration schemes currently available throughout the United States. Despite the apparent lack of uniformity, a number of tentative conclusions and possible trends can, however, be identified.

Establishment
In comparing the eligibility criteria for entry into the various relationship schemes provided for in the USA, a number of similarities and differences are evident. The overwhelming emphasis is, however, on the diversity of the solutions. No two schemes are entirely identical, although this is often the result of differences in the marriage laws between the states rather than the result of differences between the ethoses of the registration schemes themselves. 271 This section will focus on the five separate elements relating to the establishment or formation of the relationships, namely (i) the principle of exclusivity, (ii) the sex of the parties, (iii) the age of the parties, (iv) relevant residency requirements, and (v) the prohibited degrees of relationship. 272 The only core principle common to all jurisdictions at this stage appears to be in relation to the principle of exclusivity. As mentioned above, the principle of exclusivity is comprised of two requirements. Firstly, only two persons may be involved in the relationship at any one time (the so-called principle of monogamy) and secondly that neither party to the relationship may already be involved in a marriage or other registered relationship (the so-called principle of exclusiveness). 273 Thus far, no jurisdiction has permitted those already involved in a marriage or registered relationship to enter into another registered relationship, 274 prior to terminating the previous relationship (the principle of exclusiveness). Moreover, no jurisdiction has yet to allow more than two persons to register a relationship (the principle of exclusiveness). All the surveyed jurisdictions adhere to this fundamental principle.
However, complete consistency ceases here. With respect to the sex of the parties, a variety of different approaches can be discerned. In Hawai'i, Maine and the District of Columbia the registration scheme is open to different-sex couples regardless of age, whereas in California, Washington, and the domestic partnership scheme in New Jersey, different-sex couples are only permitted to register if either one of the partners has attained the age of 62 (California and Washington) or both have attained this age (New Jersey). In the other States, namely Oregon, Connecticut, New Hampshire, Vermont, as well as the civil union scheme in New Jersey, registration is restricted to same-sex couples. Hence, in comparing American jurisdictions, it is impossible to disentangle the age and sex requirements from each other; one is completely intertwined in the other. 275 Although no jurisdiction permits registration below the age of 18, in California, Washington and New Jersey (although only with the domestic partnership regime), a lower age limit of 62 has been introduced for different-sex partner registration. 276 The reason for this criterion is linked to the loss of social security benefits for widows and widowers upon remarriage. If a widow or widower remarries after having reached the age 62, he or she will lose his or her entitlement to social security benefits. In these states, registration therefore offers a possibility for elderly couples to enter into a secure relationship with their new partner, without risking the loss of important social security benefits. One other interesting point to note regarding the age limits imposed on aspirant registered partners is that they are not always identical to the equivalent ages imposed on aspirant spouses. For example in New Hampshire and Oregon the age to register a civil union and domestic partnership respectively is higher than the equivalent ages imposed in the marriage laws. 277 The reason for this could stem from the fact that the marital age limits are inherently linked to the ability to procreate (the age limit being linked to the age at which boys and girls are able to conceive children). Since these factors do not relevant in same-sex relationships, the reasons for the lower age limit do not apply, and hence the age is set at the age of majority.
Diversity is also present in the relevant residency requirements imposed on aspirant registered partners. Nonetheless, a certain trend is apparent. Every jurisdiction that has introduced a domestic partnership regime has also imposed a form of residency requirement, either by means of a common or shared residency requirement (California, Washington and District of Columbia), an individual residency requirement (Oregon) or a one year joint communal residency requirement (Maine). On the other hand, those states that have introduced reciprocal benefits or civil unions have not imposed any form of residency requirement, in line with the marriage laws in these states (Hawai'i, Connecticut, New Hampshire, New Jersey and Vermont). It could be that this distinction reflects a difference in the nature of the institutions. Whereas domestic partnership focuses on a common household and domesticity of the relationship, civil union addresses the actual relationship between the parties and is not focused on the living arrangements of the parties. It is in this aspect interesting to note that when Oregon changed the name of its relationship bill from 'civil union' to 'domestic partnership', a residency requirement was introduced. 278 Whether or not this can be regarded as a fundamental and inherent difference between these jurisdictions is, however, highly debatable. It is possible, the difference is simply the result of coincidence.
Regarding restrictions to the prohibited degrees of relationship, only Hawai'i and the District of Columbia permit those unable to get married because they are relatives to register their relationship. All other jurisdictions (California, Maine, Oregon, Washington, Connecticut, New Hampshire, New Jersey and Vermont) impose the same restrictions regarding degrees of relationship to registered relationships as are applied to marriages. 279 Nonetheless, despite this overall non-uniform picture, if one looks at these those relationships bearing the same name, one is able to distil certain patterns or trends. There appears to be three distinct state groupings: 1.
states that have introduced domestic partnerships statutes from same-sex couples and different-sex couples over the age of 62 (CA, NJ, WA); 3.
states that have done neither of the above (HI, DC, ME).
In examining the first group of states, although the initiative underlying the establishment of civil unions is very different in these four states, since two registry systems were pre-empted by a judicial decision (New Jersey and Vermont) and two were the result of legislative initiatives (Connecticut and New Hampshire), the end results are very similar. Ultimately the aim of the legislation can be extrapolated from the original aims surrounding creation of the legislation. All those states to have introduced civil unions have done so on the same basis, namely by creating 'a state-regulated union created alongside marriage restricted to same-sex couples in which both parties have attained the age of 18 and are not related to each other within the prohibited degrees of relationships set forth in statute'. 280 In Baker v. Vermont and Lewis v. Harris, the Vermont and New Jersey Supreme Courts respectively held that it was unconstitutional to deny same-sex couples the rights and benefits of marriage. The question was left open whether marriage would be opened to same-sex couples, or a new institution would be created providing the same rights and benefits as marriage and in the same manner. In Connecticut and New Hampshire, the legislative intent was to create a registry scheme permitting 'same-sex couples to have the same rights, responsibilities and obligations as married couples'. 281 In the jurisdictions that have introduced a domestic partnership scheme open to same-sex couples and different-sex couples over the age of 62 (i.e. California, New Jersey and Washington), a similar belief lay behind the original enactment of the statute. Although wanting to address the rights of same-sex couples, the legislature in all of these states found it politically difficult to introduce a registry scheme that would be restricted to same-sex couples. However, on the other hand, opening the scheme to different-sex couples resulted in other criticism since it would provide a competitive alternative to marriage for different-sex couples. In the end these states have all opted for a compromise solution. All same-sex couples may register their relationship, as may those different-sex couples over the age of 62 who wish to avoid the negative effects of remarriage on their social security benefits. In making this compromise, the fundamental argument for enacting a non-marital registration scheme is different than in those states that have introduced civil unions. The fact that New Jersey has since restricted its domestic partnership scheme can be explained with reference to the enactment of civil unions in the state. Same-sex partners now have the opportunity to enter into a 'marriage-like equivalent' and are thus no longer granted the opportunity to enter into a domestic partnership, along identical lines to different-sex couples.
One state, Oregon, causes slight problems in relation to this threefold distinction. Oregon has created an institution which is entitled 'domestic partnership', yet in all facets it resembles a 'civil union'. In this respect is it especially interesting to note that the original bill submitted to the Senate would have created a civil union registry. 282 However, the Republican-controlled House of Representatives effectively prevented the bill's passage. The subsequent compromise was the submission of an almost identical bill with the words 'domestic partnership' replacing the words 'civil union'. A rather cosmetic alteration since the content of the bill remained remarkably similar. One significant difference is the imposition of a residency requirement, expressly called for by the Republicans to ensure that Oregon would not become a home for same-sex registration tourism. In this respect, Oregon has really created a civil union in disguise.
The third and final category consists of Hawai'i, Maine and the District of Columbia. All three jurisdictions have created a relatively weak form of non-marital registered relationship, ensuring that only the minimum requirements are imposed on those wishing to register their relationship. In comparing these three jurisdictions, one is struck by the overwhelming nonuniformity of their schemes. Neither the reasons for the enactment of this legislation nor the choices made within this framework appear to resemble each other in any significant way.

Rights and duties
With regard to the rights and duties attributed to non-marital registered partners, little uniformity can be deduced. At the one extreme, states such as Massachusetts, California and New Hampshire have extended all the rights and duties granted to married couples to those involved in same-sex equivalents. At the other end of the extreme, states such as Michigan and Alaska have passed constitutional and statutory amendments that deny same-sex couples any of the benefits granted to married couples. Restricting comparison to those states that allow for some form of registration, one is able to deduce the utilisation of two different techniques. Some states have chosen to use an enumeration method to extend rights and benefits, explicitly stating each right, benefit, duty and responsibility that is granted to same-sex registered couples. Other states have instead opted for the exclusion method whereby all rights are extended, unless explicitly proscribed. 283 Table 2 provides an overview of the methods used.  states that have introduced relationship schemes with weak benefits (HI, ME, NJ, WA); 3.
states that have introduced domestic partnership with strong benefits (CA, DC).
The first category does not require much explanation. As already stated above, whether by virtue of a judicial decision or legislative proposal, the objective of all four pieces of legislation is to introduce a statutory institution identical (yet separate) to marriage, restricted to same-sex couples. If one also takes on board the previous discussion with regards to Oregon actually being a civil union state, then one could argue that with respect to the rights and duties attributed to non-marital registered partners, Oregon also adopts a 'civil union' approach. The second category consists of those states that have introduced partnership schemes with only limited rights and duties. These states have thus opted for a very different type of relationship scheme. Despite the apparent clarity of this grouping, the background surrounding the introduction of each State's legislation is very different. In Hawai'i the reciprocal benefits scheme was introduced as a palliative response to the calls for same-sex marriage. In the other three states this was not the case. What is perhaps most interesting in this category in the apparent divergence of the state with respect to each other. Since the introduction of these schemes, 286  Hawai'i has restricted the rights and duties available, New Jersey has limited the eligibility criteria (but since introduced civil unions), Washington has extended the rights available, whereas Maine has not amended its legislation at all. This grouping is therefore perhaps the most fluid of all three groups and can therefore perhaps best be regarded as a 'temporary pit-stop' on the way to some other destination.
The third category is, however, slightly more difficult to explain. In these jurisdictions, the legislature has chosen to extend all the rights and benefits attributed to married couples to those involved in a non-marital registered relationship. In California and the District of Columbia this has been the result of legislative amendment in 2005 and 2006 respectively. In this respect, it is perhaps interesting to note that both jurisdictions at the moment of creation enumerated all the rights and duties attributed to domestic partners. However, both jurisdictions have gone on to extend those rights and duties to include all or virtually all the statewide rights and duties attributed to spouses. What is perhaps most remarkable is the fact that the legislatures in these states have not, however, tampered with the name of the institution.

Termination
As regards the termination of these relationship forms, little uniformity can be deduced. States such as Hawai'i simply require notification to be sent by certified mail, whereas other states such as California require (in some cases) the parties to prove in court that the relationship has irremediably broken down. One clear uniform trend is, nonetheless apparent: those states that have introduced civil unions have regulated the termination of these relationships on exactly the same basis as the existing divorce rules, with the ensuing oddities with respect to adultery! It would also appear (rather logically) that the weaker the relationship form, the easier the dissolution procedure is.

Theoretical framework
On the basis of European research, it has been suggested that there are three models that can be distinguished with respect to non-marital registered relationships, the so-called pluralistic, dualistic and monistic models. 286 The question, which can therefore be posed, is whether this classification can also be applied to the registration schemes developed in the United States of America.
In the pluralistic model couples are offered two possibilities to formalise their relationship, irrespective of their gender, namely marriage or a form of non-marital registered relationship. It must, however, be noted that jurisdictions adhering to the pluralistic model tend to attain the end phase of this model by virtue of a two-stage process, thereby necessitating the division of the pluralistic model into two time-periods. The first time-period involves opening non-marital registration to both different and same-sex couples, whilst leaving marriage legislation entirely intact and unaltered. Once this has been achieved, the arguments for opening civil marriage to same-sex couples are strengthened, since the discrimination originally faced by same-sex couples, in not being able to marry, is simply replaced with a new form of discrimination; although different-sex couples are offered a choice of relationship forms, same-sex couples are not. 287 It is irrefutable that the option for different-sex couples to register their relationship along identical lines to same-sex couples in The Netherlands and Belgium, for example, played an 288 It is, therefore, argued that over the course of time, France will gradually come to debate the issue of opening civil marriage to same-sex couples. This issue has in fact already been raised in the courts as well as politically.

275
important role in the pressure placed on these Governments to amend the laws prohibiting samesex civil marriage. 288 This model can be represented diagrammatically.

DSC/SSC
M In relation to the American jurisdictions to have enacted registration schemes, it would appear that these models also hold true, although certain amendment is necessary. Massachusetts is perhaps the easiest State to begin with, having simply opened civil marriage to same-sex couples. It therefore has opted for the monistic model. Those states that have introduced civil unions (i.e.
289 An alternative solution is obviously that the Californian legislature opens civil marriage to same-sex couples, and at the same time opens domestic partnership to different-sex couples. Although theoretically possible, there would appear to be no indication that this route will be followed.

276
Connecticut, New Hampshire, New Jersey and Vermont) have all done so in a similar fashion to those European states that have adhered to the dualistic model. One particular feature deserves particular attention, since it would appear that the terminology used to identify the relationship form is significant for the typology of the registration scheme in any particular State.
(a) Those states to have opened up marriage to same-sex couples (Massachusetts and California) would appear to be monistic states (assuming that California will indeed implement the holding of the Californian Supreme Court decision and subsequently remove domestic partnership). 289 (b) 3 of the 4 States that have introduced civil unions have all done so on similar grounds, albeit for different reasons (Connecticut, New Hampshire and Vermont). In these States the legislature has created a parallel similar operating along identical lines to marriage. As already stated above, it is particularly interesting to note that Oregon, despite having introduced a form of domestic partnership, has done so along identical lines as those states to have introduced civil unions. This would appear to confirm the hypothesis that the terminology used to identify this new form of relationship is crucial. In Oregon the legislature refused to pass a Bill when it proposed to introduce civil unions (a term now associated with the dualistic system), whereas when the same Bill was reintroduced using the name domestic partnership (a term now associated with the pluralistic system), the objections were far less pronounced. (c) Those States that have introduced domestic partnerships and reciprocal benefits have done so according to one of two different paths.
(i) The first group consists of those States that have introduced domestic partnership for same-sex couples and different-sex couples over the age of 62 (California, New Jersey and Washington). It has been argued in this article that this group is, however, 290 The argument for this is that the reason for these couples to utilise the domestic partnership regime is simply to avoid losing social security benefits. The legislature could alternatively choose to amend the social security legislation to ensure that these benefits would not be lost upon remarriage, and the need for different-sex domestic partnership would disappear. 291 For an overview of the European situation, see I. Curry-Sumner, All's well that ends registered?, 2005. 277 characterised by flux. All three States belonging to this group have, since enactment of domestic partnership, either introduced a new formalised registration system (New Jersey with civil union and California with marriage) or extensively expanded the rights and duties incumbent on the parties involved (Washington). If one considers the possibility for different-sex couples over the age of 62 as a specificity of these systems that should be removed from the analysis, 290 one is left with adherence to the dualistic model. In all these States, the State has begun with a registration with limited rights and duties, but has since extended those rights and duties extensively ensuring that two of three States now attribute rights and duties via the exclusion method instead of the enumeration method.
(ii) The second group consists of those jurisdictions that have introduced domestic partnership or reciprocal benefits for same-sex couples and different-sex couples (District of Columbia, Hawai'i and Maine). These States have therefore all adhered to the pluralistic model of registration. In this group it is worth noting that all three states also originally used the enumeration method to attribute rights and duties to same-sex partners, and that the package of rights and duties that was extended can be classified as being weak. It is, however, with respect to this group of jurisdictions that one can witness the most diversity of solution (i.e. with regards the prohibited degrees of relationship, the extent of the rights and duties attributed, the method used to attribute the rights and duties etc.).

Conclusion
With a country so divided on the issue of same-sex relationships, it would seem difficult, and possibly foolish, to propose possible solutions to the potential chaos that the United States may encounter in this field. Nevertheless, there are a couple of points that can be learnt from this brief summary of the state of affairs anno 2008. Firstly, same-sex couples are increasingly gaining state recognition of their relationships. Although the road ahead would appear to be a long one, it does appear to be one which is slowly changing. Less than 10 years ago, same-sex couples were provided virtually no recognition anywhere in the country. Today, more than 10 jurisdictions provide for state-wide registration schemes and two states have even gone so far as to open marriage to same-sex couples. Although the fight has not been won, same-sex couples should take solace in the fact that a similar picture was also true of Europe ten years after Denmark became the first country in Europe to introduce 'registered partnerships'. 291 Secondly, the states should pay more attention to ensuring that distinctions between marriage, on the one hand, and same-sex relationship recognition, on the other, serve a particular purpose. If the decision has been taken to extend all of the rights and benefits of marriage to same-sex couples, the conditions for establishment of the relationship should also mirror that institution; if a prohibition exists for one category, well-founded reasons should be provided as to why this prohibition does not apply to the other category. Take, for example, the Oregon statute which ensures that opposite-sex couples may marry from 17 years of age, whereas same-sex couples can only register a domestic partnership from the age of 18. What is the reason for this difference? What purpose does this serve, other than to draw unnecessary distinctions?
Thirdly, it would appear crucial that more attention is paid to the terminological differences between the States. The name given to a State's registration scheme would appear to be representative not only of a State's political ideology with respect to same-sex relationships, but also representative of the type of registration scheme that is being created. This is of utmost importance as States pay increasing attention to the developments in sister states. The ever-increasing mobility of citizens across the United States will only lead to states being confronted with relationship forms from other states. Since 2002, the number of cases involving interstate recognition has begun to increase. As more states open their doors to same-sex recognition, more attention should be paid to the conflict of laws issues involved. Not only will the beast raise its ugly head with regards the recognition and termination of such relationships, but perhaps ever more frequently with regards the rights and duties associated with the relationship. 292 The debate will, however, no doubt continue. Nonetheless, let us not forget the words of Chief Justice Deborah T. Poritz, in a powerful concurring and dissenting opinion in the case of Lewis v. Harris, 'What we name things matters, language matters (...) Labels set people apart surely as physical separation on a bus or in school facilities (...) By excluding same-sex couples from civil marriage, the State declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately the message is that what same-sex couples have is not as important or as significant as 'real' marriage, that such lesser relationships cannot have the name of marriage.'