Archive for February, 2010

Marriage Basics For Same-Sex Couples

Monday, February 1st, 2010

The Court’s Historic Marriage Decision

  • In May 2008 the California Supreme Court found that the state statute which limits marriage to one man and one woman violated the California Constitution in a number of ways, including violating the fundamental right to marry as well as the right to privacy and equal protection.  Thus, the statute was struck down.
  • The California Supreme Court has the final say in cases brought under the California Constitution, like this case, and there can be no further appeals.
  • The rights of heterosexual couples to marry and the rights and responsibilities of those who are married remained exactly the same.  The decision simply allowed same-sex couples to marry.

The California Constitution After Proposition 8

  • Proposition 8, on the November 2008 ballot, changed the California Constitution to specifically exclude same-sex marriages.  The amendment received over 50% of the vote, and overrode the California Supreme Court’s decision of five months prior.
  • Marriages of same-sex couples performed between June 17, 2008 and November 4, 2008, however, are still valid.
  • Litigation is pending (Perry v. Schwarzenegger) which seeks an injunction under Federal Equal Protection standards to stop enforcement of Proposition 8.

Logistics for Same-Sex Couples Married in California

  • Same-sex couples did not need to dissolve their domestic partnerships before marrying, so long as both were between the same two people.  Also, because some states may honor a California domestic partnership, but not a California same-sex marriage, keeping the domestic partnership may provide out-of-state protection otherwise unavailable.
  • Out-of-state same-sex couples were allowed to marry in California, since California has no residency requirement for marriage.  However, although the couple is still legally married when they return to their home state, the home state may not respect or recognize the marriage, as most states still maintain statutes forbidding recognition.

Same-Sex Married Couples Are Still Treated Differently Than Mixed-Sex Married Couples

  • Same-sex couples face additional discrimination by the federal government as well as by a number of states
  • Same-sex couples who were married in California may still be legal strangers in other states – even when just traveling through or vacationing in those states.  The federal Defense of Marriage Act (DOMA) allows states without same-sex protective legislation to ignore same-sex marriages that are valid where they were performed.
  • Federal rights and benefits do not extend to same-sex married couples as they do for heterosexual married couples, such as the right to file joint federal income tax returns, the right to social security benefits, and many others.
  • For binational same-sex couples, the same citizenship rights do not attach.  Unlike a heterosexual married couple, a same-sex marriage will not bestow U.S. citizenship on the foreign spouse.
  • A member of the military who lives in California could be discharged from military service under the Don’t Ask, Don’t Tell policy for marrying a member of the same sex.
  • Unlike heterosexual couples, if a married same-sex couple moves to (or already lives in) another state, getting a divorce could prove very difficult.  Currently the only other state that will allow a same-sex couple to divorce is Massachusetts, but it has a one-year residency requirement for divorce.  States with civil unions or comprehensive domestic partnerships (Connecticut, New Hampshire, New Jersey, Oregon, and Vermont) also have residency requirements for divorce.  At least one spouse must be a resident of one of these states for a year prior to being granted a divorce.  Same-sex couples unable to obtain a divorce, then, remain legally married, which could cause serious legal problems and complications.

For More Information

For more information about the California Supreme Court’s ruling, legal resources for couples, and action steps to help protect the freedom to marry, you may contact Stock Stephens LLP, or any of the following organizations:

The Center Advocacy Project: www.centeradvocacy.org
National Center for Lesbian Rights: www.nclrights.org
Equality California: www.eqca.org
Lambda Legal: www.lambdalegal.org
The American Civil Liberties Union: www.aclu.org

[This information is provided with permission from Lambda Legal, and in conjunction with NCLR, the San Diego Center, Equality California, and the ACLU, with further development by Stock Stephens LLP.]

Still Fighting… for the Freedom to Marry

Monday, February 1st, 2010

It has been just over a year since the controversial Proposition 8 passed in California and imposed a moratorium on same-sex marriages here. At no time since its passage in the November 2008 election however, has the initiative and surrounding legal turmoil been out of the news or far from anyone’s minds.

Criticized across the globe as a violation of civil rights, yet echoed in subsequent battles in states across our nation, the fight continues in the current Perry v. Schwarzenegger trial. Judge Walker’s decision to give the parties a two-week hiatus to review the evidence before delivering closing arguments in the case means an even longer wait for those in California seeking some glimmer of hope that their civil rights might someday soon be restored.

As the lives of the people sit once again in the hands of the Justices, we take a look back at the historic California Supreme Court decision that briefly granted marriage equality to our state’s gay and lesbian couples…Read More