Status of Protections in the U.S. for Victims of Domestic Violence in Same-Sex Relationships

While some states were well ahead of the curve in their gender-neutral approaches to marriage and legislation protecting same-sex couples, an overwhelming majority of states legally defined marriage as a union between one man and one woman and refused to recognize same-sex marriages performed in other jurisdictions. In 2015 came the landmark Supreme Court decision in Obergefell v. Hodges, 135 S.Ct. 2584 (2015). Obergefell held that: (1) the right to marry is a fundamental right protected under the Due Process and Equal Protection Clauses of the Fourteenth Amendment; (2) same-sex couples may not be deprived of that right; and (3) states must recognize lawful same-sex marriages performed in other states. This decision provided a clear directive to states that same-sex couples have a fundamental right to marry, rendering any existing laws to the contrary unconstitutional. Obergefell was not only monumental because it legalized same-sex marriage, but because it also extended to same-sex married couples a multitude of benefits, many of which are intended to assist families in times of crisis (e.g., the automatic right to visit a hospitalized spouse and the right to make medical decisions on an incapacitated spouse’s behalf). In addition, although perhaps not widely recognized as a “benefit,” with the recognition of same-sex marriage comes access to a myriad of protections for married victims of domestic violence and intimate partner violence (“IPV”).

Although there is a pervasive myth that IPV is a heterosexual issue, a number of studies have revealed not only the existence of IPV in same-sex couples, but the occurrence of IPV as comparable to or exceeding the incidence among heterosexual couples. In a recent 2013 study, it was estimated that approximately 4.1 million members of the LGB community have experienced IPV in their lifetime in the United States. Prior to Obergefell, the protections available to victims of domestic violence at the hands of a same-sex partner were questionable at best. Post-Obergefell, since all states recognize married and formerly married couples as a protected category under civil domestic violence laws, these laws automatically protect same-sex married couples. But where did Obergefell leave unmarried victims in same-sex relationships? All states, with the exception of North Carolina, utilize gender-neutral language in their civil domestic violence laws. This language greatly increases the likelihood that victims of domestic violence in same-sex relationships will be protected regardless of their marital status. However, in light of state attitudes towards same-sex marriage, the reality of domestic violence protections for same-sex couples with regard to equitable access to enforcement and equal access to protection under the laws may be different.

Protections for Victims of Domestic Violence in Same-Sex Relationships

This issue brief:

1. examines the various approaches taken by states in implementing the Obergefell decision;
2. demonstrates how the various approaches may impact or implicate the applicability of domestic violence statutes to unmarried victims in same-sex relationships;
3. outlines the potential enforcement issues of existing domestic violence statutes as applied to unmarried victims in same-sex relationships; and
4. examines certain non-legal barriers to accessing domestic violence protections for victims.