Love is in the air. With Valentine’s Day last week, Washington State approving same-sex marriage last Monday, and the Ninth Circuit Court of Appeals overturning California’s Proposition 8 the week before, it is a good time to be in love – in some states at least. Currently, same-sex couples can only get married in seven states and the District of Columbia, but they can register as domestic partners in several others, including Nevada.

When the Ninth Circuit held in Perry v. Brown that Prop 8 is unconstitutional under the Equal Protection Clause, it did so because the law specifically targeted same-sex couples and, without a legitimate reason, took away their existing right to marry in California. The court also recognized the “extraordinary significance” of marriage, stating:

‘[M]arriage’ is the name that society gives to the relationship that matters most between two adults.  A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not . . . It is the designation of ‘marriage’ itself that expresses validation, by the state and the community, and that serves as a symbol, like a wedding ceremony or a wedding ring, of something profoundly important.”

The Ninth Circuit’s commentary on the sweet smell of “marriage” and the not-so-sweet smell of a “registered domestic partnership” focuses on the human elements of marriage—the emotions and the societal status ingrained within a marital union.  The Ninth Circuit ultimately held that “Proposition 8’s only effect . . . was to withdraw from gays and lesbians the right to employ the designation of ‘marriage’ to describe their committed relationships and thus to deprive them of a societal status that affords dignity to those relationships.”

After Perry, marriage equality gained added momentum with the passage of Washington’s same-sex marriage law.  On February 13, 2012, Governor Chris Gregoire signed a measure legalizing same-sex marriages in Washington which will take effect on June 7, 2012.  During the signing ceremony, Governor Gregoire stated, “this is a very proud moment for the state of Washington . . . it's a day that historians will mark as a milestone for equal rights — when [Washington] did what was right, just and fair and did it together, Republicans and Democrats, gay and straight, young and old.”

The fate of Perry and the Washington same-sex marriage law are still uncertain.  Perry may be appealed and heard by the U.S. Supreme Court, and opponents of same-sex marriage are challenging the Washington law by collecting signatures for a referendum vote.

However, same-sex couples can celebrate knowing that positive steps are being made to advance equality in marriage.  More importantly, the discussion regarding the same-sex marriage debate seems to be shifting toward the significant social status that all people, gay or straight, attribute to marriage. Despite the similarities of a marriage and a domestic partnership and the plethora of rights and responsibilities given to registered partners, there is no denying the fact that symbolically speaking, a “registered domestic partnership” is just not as sweet as a “marriage.”

by Franz Español, ACLU of Nevada Legal Intern