Maine Senate Passes Same-Sex Marriage Bill; House of Reps to Vote Next Week

On Thursday, April 30, 2009, Reuters reported that Maine's Senate has passed a bill that would make it the fifth in the country to allow gay marriage. The legislation, which will go to a vote in the state House of Representatives next week, seeks to redefine marriage as the legal union of two people rather than between a man and a women. The bill passed in the Senate on Thursday by a 20-15 margin.

The Gay-Marriage Roundup:

In November, Connecticut became the second state to allow legal same-sex weddings after neighboring Massachusetts' top court ruled in 2003 that a ban on gay marriage was unconstitutional, paving the way for the first same-sex marriages in the United States the following year.

In a single week in April, Iowa and Vermont also legalized same sex marriage. And on Wednesday, New Hampshire's state Senate approved a gay marriage bill, about a month after its House approved it. The bill needs New Hampshire Governor John Lynch's signature to become law.

Gay marriage legislation has yet to advance in Rhode Island.

Why Adoption Is Absolutely Necessary for Same-Sex Couples (Yes, Even in Massachusetts!)

As tens of thousands of same-sex couples take advantage of various equal marriage laws and civil union statutes throughout the country, it is important to remember that the patchwork quilt of laws regarding same-sex families is largely unfinished.

So while there is much cause for celebration, we should remember that the federal government refuses to recognize any kind of same-sex relationship; that the nation's largest single employer (the military) will not tolerate homosexuals (much less recognize same-sex relationships); that same-sex couples are not treated equally in the application of immigration laws; and that throughout the country there are laws that ban adoption by homosexuals, that permit discrimination in employment and housing on the basis of sexual orientation, and prohibit any recognition of same-sex relationships. In response to the aforementioned laws and prohibitions, same-sex couples are forced to spend time and money on domestic partnership agreements, estate and health care planning to obtain even the most basic protections for family and loved ones. Failure to plan can have truly devastating and unintended consequences for same-sex couples and their families.

When it comes to child-rearing and parenting for same-sex couples, this national patchwork of rights, prohibitions, and outright discrimination can be catastrophic and downright terrifying. I advise my clients (and the various LGBT legal advocacy groups agree) that the only way to guarantee the recognition of their legal parent-child relationship is by petitioning the Court to grant a Co-Parent Adoption.

Your State-Sanctioned Same-Sex Marriage/Civil Union/Domestic Partnership Does Not Guarentee A Legally Enforceable Parent-Child Relationship. A recent New York case - Debra H. v. Janice R. - highlights this fact particularly well.

Two months prior to the birth of their child, Debra and Janice registered a domestic partnership in their home state of New York. A month later, the pair also entered into a civil union in Vermont. But two and a half years after the birth, the two women split up. Debra petitioned the court for custodial and visitation rights over the objections of her partner Janice, the child's birth mother. On October 9, 2008, the New York trial court found in favor of Debra, finding that she stood in loco parentis (what we would call De Facto Parental Status in Massachusetts) to the child. This means that although Debra was neither the child's biological mother nor an adoptive parent, the court was convinced that she acted sufficiently like a parent and deserved legal recognition.

However, on April 9, 2009, a New York appellate court reversed this decision and refused Debra any parental rights to the child she helped raise for two and a half years. The Court's reasoning is clear and unambiguous:

"Although the record indicates that petitioner served as a loving and caring parental figure during the first 2½ years of the child's life, she never legally adopted the child. ... This matter is governed by the Court of Appeals decision in Matter of Alison D. v Virginia M. (77 NY2d 651 [1991]), which provides that a party who is neither the biological nor the adoptive parent of a child lacks standing to seek custody or visitation rights under Domestic Relations Law § 70..."

The New York Court denied parental status to Debra even though it recognized that the child had been "born approximately one month after the parties entered into a civil union in the State of Vermont, and more than two months after they registered as domestic partners in New York City".

The Constitution Requires That States Give Full Faith And Credit To The Judgments Of Another State. In a recent Federal Court decision, the State of Louisiana refused to issue a new birth certificate for a child born in that state and then adopted jointly in New York by two men. The state's position was that joint adoption by an unmarried couple was against Louisiana's public policy, and that it could refuse to issue an amended birth certificate.

Rejecting the state's argument, the District Court Judge Jay Zainey explained that the well-settled meaning of the federal constitution's "Full Faith and Credit Clause" requires states to recognize the "judicial proceedings" of other states. "Judicial proceedings" are matters that are resolved in courts, and the final resolution of a court proceeding is called a judgment. Importantly, the judge said that "the full faith and credit clause does not require a state to substitute the statutes of another state for its own..." On Summary Judgment, Judge Jay Zainey ordered the State Registrar to honor the valid New York adoption judgment and issue an amended birth certificate to the adoptive same-sex parents.

This case reminds us that although a state is constitutionally required to recognize the judgment of a foreign jurisdiction, it will not be equally compelled to recognize foreign statutory schemes or regulations (see: same-sex marriage or civil union) that violate its laws or public policy.

But Will My Spouse And Children Be Protected By Our Valid Same-Sex Massachusetts Marriage?

Yes! But only in Massachusetts.

In the case of heterosexual married couples, it has always been the case in Massachusetts that a child born during the marriage is legally presumed to be the biological child of both the husband and wife. With full legal recognition of same-sex marriage in 2004, married same-sex couples should receive the same presumption of parenthood here Massachusetts, although I am not aware of any cases that have tested this right.

Same-sex couples should not rely on the Massachusetts presumption of parenthood alone to establish a legal parent-child relationship between a non-biological parent and child. Put another way, if your only legal connection to a child is through your same-sex marriage, your parent-child relationship is only as valid as your same-sex marriage. Because only four states currently recognize same-sex marriage, the chances of ending up in a state that treats you as a legal stranger to your same-sex spouse and your same-sex spouse's child is great.

Regardless of whether your same-sex marriage is valid at the time of the birth of your children, or whether you wish to parent your same-sex partner's biological children, only a final and binding Adoption Decree will guarantee the creation of a universally recognized and legally valid parent-child relationship.

Given the uncertainty caused by a patchwork of new and untested state laws recognizing and banning same-sex relationships, same-sex couples should consult with an attorney to ensure that all of their exceptions and assumptions surrounding their rights are correct, especially if there is a child involved. Adoption is the only guaranteed method of creating a legal parent-child that will be recognized by other states. Uncertainty in this area may never result in a problem, but discovering your lack of legal standing during a stressful or tremulous time can make an unpleasant situation terrifying and even dangerous.

Japan Offers Recognition of Same-Sex Marriages Abroad

As reported by the AP, Japan's Justice Ministry announced on March 27, 2009 that it has begun issuing marriage-eligibility certificates to Japanese citizens who plan to marry someone of the same sex in a foreign country where same-sex marriage is legal.

For Japanese nationals, whether they are gay or not, to marry foreigners in foreign countries, they must obtain certificates from the ministry by submitting documents including their name, birth data, sex and nationality, and similar information about their marriage partner.

The ministry has so far rejected the issuance of such certificates to Japanese citizens seeking to marry same-sex partners of foreign nationality as such marriages are not approved under domestic law. Because the Justice Ministry would not issue the requisite eligibility certificate, Japanese gays and lesbians were blocked from marrying a same-sex foreigner, even if their marriage partner's country approved of same- sex marriage.

Under the latest decision, the ministry will issue a new type of certificate which will only clarify that the person has reached the legal age for marriage and that he or she is single. Under the changed policy, gays and lesbians in Japan will be able to bring a foreign same-sex spouse to live with them in Japan.

Same-sex marriage is legal in Belgium, Canada, the Netherlands, Norway, South Africa, Spain, Sweden, and the U.S. states of Connecticut, Iowa, Massachusetts, and Vermont.

Vermont 4th State in Nation to Recognize Same-Sex Marriage

Update: Breaking News: Vermont 4th State in Nation to Recognize Same-Sex Marriage

As reported by the AP on April 7, 2009:

Vermont has become the fourth state to legalize gay marriage — and the first to do so with a legislature's vote.

The Legislature voted Tuesday to override Gov. Jim Douglas' veto of a bill allowing gays and lesbians to marry. The vote was 23-5 to override in the state Senate and 100-49 to override in the House. Under Vermont law, two-thirds of each chamber had to vote for override.

The vote came nine years after Vermont adopted its first-in-the-nation civil unions law.

It's now the fourth state to permit same-sex marriage. Massachusetts, Connecticut and Iowa are the others. Their approval of gay marriage came from the courts.

As Expected, Vermont Governor Vetoes Same-Sex Marriage Bill; Legislature Prepares for Override Vote

As reported by the New York Times on April 7, 2009:

Gov. Jim Douglas vetoed a bill that would legalize same-sex marriage, setting the stage for an override vote by the legislature. Mr. Douglas, a Republican, announced in March that he would veto the bill, which the Senate passed overwhelmingly and the House of Representatives approved 96 to 52. The House needs five more votes for a successful override.

As reported by the AP on April 7, 2009:

As expected, the Vermont Senate has overridden the governor's veto of a bill that would allow same-sex marriage.

The House planned to take up the issue later Tuesday, but it's unclear whether there are enough votes to override the veto by Gov. Jim Douglas.

If there are, Vermont would become the fourth state to legalize marriages of gay and lesbian couples.

The others are Massachusetts, Connecticut and Iowa.

Iowa High Court Upholds Recognition of Same-Sex Marriages

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In a unanimous decision on Friday, April 3, 2009, the Iowa Supreme Court held that the state's decade-long ban on same-sex marriages was unconstitutional and furthered no legitimate state interest. Before yesterday's ruling, only Massachusetts and Connecticut allowed same-sex marriage. New York has said it will recognize such unions performed in other states. California allowed same-sex marriage for about five months last year before the ballot initiative banned it.

The Iowa Supreme Court decision upholds a lower court's ruling which declared that a 1998 state law defining marriage as a union between a man and a woman violates the equal protection clause of the Iowa Constitution.

"We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective," the justices wrote.

The decision will take effect in 21 days unless a rehearing is requested. Attorneys for Polk County, which challenged the earlier ruling, indicated that the county will not request a review, meaning that same-sex couples will be able to apply for marriage licenses in Iowa in three weeks. The only other recourse for overturning the decision is a state constitutional amendment, which would take at least two years to be adopted.

Click here for a copy of the entire opinion of the Iowa Supreme Court.

For more information from a local Iowa news affiliate, click here.

Vermont House Passes Same-Sex Marriage Bill; Seeks Senate Approval Friday - then to Governor

As reported by the Burlington Free Press:

MONTPELIER — The Vermont House voted 95-52 on Thursday night to allow same-sex couples to marry in Vermont. The tally suggests it might be difficult for the House to override a promised gubernatorial veto of the bill that would need 100 votes, though supporters said they would push for that.

The vote came at 9 p.m. Thursday after four hours of impassioned debate on the bill in a chamber filled with supporters and opponents. Rep. Bill Lippert, D-Hinesburg, chairman of the House Judiciary Committee, spoke on the House floor about gays and lesbians in his community — carpenters and nurses and maple sugarers — and of his own relationship with his male partner.

“That’s who we’re talking about here today,” he said. “These couples are living everyday lives of ordinary and extraordinary significance.” Lippert declared that the civil unions law he helped craft nine years ago could not provide complete equality. “People know what it means when you say you’re married,” he said.

Rep. Johanna Donovan, D-Burlington, agreed. “There’s only one thing truly equal to marriage and that’s marriage,” she said. “Now is the time to give civil unions a respectful burial.” Like Lippert, several legislators who are gay or who have gay family members spoke emotionally of their own circumstances.

“I didn’t choose to be gay,” Rep. Steve Howard, D-Rutland, said. “God made me gay. I begged him not to make it so,” he said. “I stand because nobody should be ashamed of how God made them.” With his voice breaking from emotion, Rep. Jason Lorber, D-Burlington, described seeing the notice about his union with his partner under the heading “civil union” in the newspaper. “Why do we have to be off to the side,” Lorber said. “Why do we have to say you are different? Why can’t we just say congratulations?”

Rep. Tim Jerman, D-Essex Junction, said he hopes his daughter, a lesbian, will be able to come home to marry when the time comes.

There were a few surprises from legislators. Rep. Kurt Wright, R-Burlington, said he was undecided going into the debate. Quoting a letter from former Sen. Peter Brownell, who lost his seat over civil unions but didn’t regret his support, Wright said he would support the bill.

Other legislators spoke about why they could not support the bill. “It’s not easy to speak against this bill,” said Rep. Thomas Koch, R-Barre. “Marriage in my understanding has for the ages been one man and one woman. Now we take it upon ourselves to change that definition.” Rep. Albert “Sonny” Audette, D-South Burlington, apologized for voting no. As a Catholic, he said, he could not vote to change marriage.

Efforts to derail the bill failed. Rep. Robert Helm, R-Castleton, argued for putting the issue to an advisory public referendum next March, asserting that the public has not had sufficient time to debate the issue. The measured failed by a vote of 96-52.

Rep. Anne Donahue, R-Northfield, succeeded in amending the bill to clarify the distinction between civil and religious marriage. She was among five Republicans who voted for the bill. She was joined by Wright and Reps. Rick Hube, R-South Londonderry, Patti Komline, R-Dorset and Heidi Scheuermann, R-Stowe.

It was unclear Thursday night whether supporters of the bill could muster the 100 votes that would be needed to override a veto that Gov. Jim Douglas has said is coming. Some of the 11 Democrats who voted against the bill have said they would change course and vote for an override.

The House holds a final vote on the bill today. It then goes to the Senate, which passed the bill 26-4 last week, but would need to either concur with changes the House made or work the differences out in conference committee to send the bill to the governor.

Douglas would have five days from receipt of the bill to act on it, but has said he plans to veto it quickly. Beth Robinson, who led the push for the bill with the Vermont Freedom to Marry Task Force, counseled supporters after the vote that they need to keep calling people and knocking on doors to persuade lawmakers to vote for an override.

Sweden's Parliament Affirms Same-Sex Marriage

The Swedish Parliament voted overwhelmingly on Wednesday to recognize same-sex marriage, becoming the seventh country worldwide to do so.

The new law passed on Wednesday by a vote of 226 to 22, and will become effective beginning May 1, 2009. Sweden will join the Netherlands, Belgium, Spain and Norway, Canada, and South Africa, and the US states of Massachusetts and Connecticut, in recognizing same-sex marriage.

Sweden was one of the first countries to give gay couples legal "partnership" rights, in the mid-1990s, and allowed them to adopt children from 2002.

As reported by BBC News:

"The decision means that gender no longer has an impact on the ability to marry and that the law on registered partnership is repealed," the government said on its website.

Six of the seven parties in parliament backed the bill, while the Christian Democrats, one of four parties in the governing coalition, refused.

The Lutheran Church, the largest church in Sweden, has offered to bless gay partnerships since January 2007, but has still not given formal backing to the term "marriage", and will allow individual pastors to refuse to carry out gay weddings.

Same-Sex Marriage Bills Gain Ground in New England, to Become "Marriage Equality Zone"

The states of Vermont, New Hampshire, and Maine each moved closer this week to becoming the next New England state to recognize same-sex marriages after Massachusetts and Connecticut.

NEW HAMPSHIRE - The AP reported on Thursday March 26 that the New Hampshire House has voted 186-179 in favor of recognizing the right of same-sex couples to marry. The bill now moves to the New Hampshire Senate, where its future is uncertain.

Democratic Gov. John Lynch has said he opposes gay marriage, but hasn't said whether he would veto the legislation if it made it to his desk. Two years ago, New Hampshire gave gay couples the right to enter into civil unions.

According to the AP, the first attempt to pass the gay marriage bill in New Hampshire fell one vote short in the House, but opponents were unable to kill it. The House then reconsidered and passed the measure Thursday.

VERMONT - Vermont, the first state in the Nation to succesfully (cf. Hawaii) introduce civil-union legislation back in the 1990s, voted Monday March 23 on a bill to recognize same-sex marriage equality in the state. The marriage bill, which passed the Vermont Senate by an overwhelming majority vote of 26-4, now heads to the Vermont House for a vote in the coming days.

Republican Governor Jim Douglas has said he disagrees with the bill, and has expressed his intention to veto the bill if given the chance. The bill would require a 2/3 majority vote in both the Senate and the House in order to survive the Governor's veto.

If the bill becomes law, Vermont will become the first state to legalize same-sex marriage without being forced to do so by the courts.

MAINE & RHODE ISLAND - Next month Maine lawmakers plan to hold a legislative panel for the purposes of hearing a bill to recognize same-sex marriage, just as Rhode Island did back in February.

Nationwide, only the states of Connecticut and Massachusetts allow gay couples to marry.

Massachusetts Married Couples File Federal Suit Challenging the Federal Defense of Marriage Act (DOMA)

Several married same-sex couples filed a lawsuit in Federal District Court in Boston on Tuesday, March 3, challenging the 1996 Federal Defense of Marriage Act (DOMA).

Specifically, the plaintiffs in Gill, et al vs. Office of Personnel Management, et al challenge Section 3 of the Act which overrides a state’s determination that a same-sex couple is married and says that they are not married for purposes of all federal laws and programs. Under DOMA, the word ‘marriage’ means only the legal union of a man and a woman as husband and wife, and the word ‘spouse’ refers only to an opposite sex husband or wife. The law suit does not seek to force states to recognize gay marriages performed in other states, but demands that the federal government treat all married couples, as defined by the states, equally under federal law.

The plaintiffs each allege they have suffered a real and tangible harm under DOMA, including: (i) the denial of a passport in married name; (ii) denial of income and other tax benefits; (iii) denial of retirement and pension benefits; (iv) denial of social security benefits, and other federal rights and protections.

According to GLAD:

The federal rights and protections denied to committed gay and lesbian married couples and surviving spouses include some of the critical legal safety nets that couples count on when they marry and that help them fulfill their responsibilities to one another as they plan their lives and futures, have children, cope with the loss of a spouse, and for which they contribute their American tax dollars. It harms them, their children and their other dependents.

According to Scott Wu, one of the lead GLAD attorneys for the Plaintiffs:

Our legal argument is that [the portions of section three targeted in the lawsuit are] a violation of our federal government’s guarantee to treat citizens equally by refusing to recognize the marriages only of same-sex couples, and that principle of equality should apply in other contexts if we’re successful," said Wu. While GLAD believes the suit stands a strong chance of reaching the Supreme Court, Wu said it was too soon to tell how long it might take to get there.

You can meet the various plaintiffs by clicking here.

Judge: New Jersey Recognizes Same-Sex Marriage for Purposes of Divorce

As reported by the Associated Press on February 6, 2009:

A state judge has ruled that gay marriage is recognized in New Jersey for the purpose of divorce.

The wider implications of Friday's ruling aren't immediately clear. But State Superior Court Judge Mary Jacobson says New Jersey has a long history of recognizing marriages that are valid where they were performed. New Jersey doesn't let gays marry but does allow civil unions, which extend the benefits of marriage to gay couples.

La Kia and Kinyati Hammond were married in Canada in March 2004 and lived in Maryland. La Kia Hammond says she needs a divorce recognized in Canada so she can marry another woman there.

The state has not said whether it will seek an appeal.

Barring an appeal of the ruling by the state, same-sex couples from states like Massachusetts, Connecticut, and California may also seek a divorce in the New Jersey courts.

"Until Death Do Us Part": Texas Denies Couple Gay Divorce

In a predictable move, the Texas legal system has just thrown out the case of a gay Dallas couple seeking to file for divorce. The petition, which was filed on Jan. 21 in Dallas County’s 302nd District Court, sets up a legal showdown over whether courts will grant divorces to same-sex couples who’ve married legally in another state.

Texas, which has a constitutional amendment defining marriage as the union between a man and a woman, doesn’t recognize the same-sex marriages of other states. In 2003, the state Attorney General’s Office ruled that a same-sex couple from Beaumont couldn’t use a Texas court to dissolve the civil union they obtained in Vermont.

Attorney Peter Schulte represents one of the the two men, who were married in Massachusetts in 2006, "My clients want to move on with their lives," Schulte said, "but they've got to do it so there's no financial or political burden left on them with having this marriage kind of sitting out there."

If the men were to attempt to file for divorce in Massachusetts, where they were married, the Family and Probate Court would also throw out their case, but for a different reason. Under these circumstances, Massachusetts requires that one party to the marriage establish residency for a period of 1 year in order to bring the marriage (and therefore, the divorce) within the jurisdiction of the court.

The Massachusetts residency requirement presumes that if neither of the parties to the marriage has lived in the state for at least 1 year, another state is probably the more appropriate forum for the divorce action. This presumption places an undue burden on same-sex couples, who often cannot obtain divorce in the state where they reside.

The ramifications of this legal dispute go well beyond the couple's own marriage. Same-sex marriage opponents in Texas are correct to assert that by allowing same-sex divorce, the courts are impliedly recognizing same-sex marriage. After all, one of the prerequisits for filing divorce in any state is that the parties did, indeed, have a valid marriage to begin with.

Peter Schulte, who represents the plaintiff, has stated that he will appeal the case and argue that the United States Constitution dictates that states must recognize valid out-of-state same-sex marriages for the purposes of granting divorce.

While this case is a first for Texas, it is not the first nationwide. Recently, a same-sex couple in Rhode Island was denied a divorce for the same reason. Another same-sex couple in Iowa was successful in obtaining a divorce from a local court there.

VT, NH & ME Consider Equal Marriage Rights Legislation

From the AP at Bay Windows on January 16, 2009.

According to a report by the Associated Press, and published by , State Sen. Dennis Damon (D-Trenton) said he is introducing a bill to rewrite Maine’s existing statute that defines marriage as between one man and one woman, instead defining it as a union between two people. In addition, it recognizes gay marriages from other states.

"Currently there is discrimination. Heterosexual couples who have decided to spend their lives together are treated differently than same-sex couples who have ... that same commitment to each other," Damon said. "I don’t see the fairness of that. I don’t see the need for that, and this bill will put an end to that."

Maine currently has a domestic partnership registry that’s open to same-sex couples. But that’s not enough for gay marriage supporters. Damon says it’s time to "fully end discrimination in Maine."

In New Hampshire, a bill has been submitted to the legislature to replace the term "civil union" with "marriage" in the state's 1-year-old civil union law. Vermont, the first state in the nation to permanently establish civil unions is now also likely to consider a gay marriage, or marriage equality, bill.

Currently, full same-sex marriage rights are recognized in only Massachusetts and Connecticut. New Jersey, California, New Hampshire, and Vermont currently have civil union statutes.

California Supreme Court Agrees to Hear Proposition 8 Challenge

On Wednesday, the California Supreme Court agreed to hear three legal challenges to Proposition 8, according to the AP.

Proposition 8, the ballot initiative which amended the California Constitution to limit civil marriage to opposite-sex couples, passed on election day with the support of 52% of California voters amended the California Constitution.

All three cases argue that Proposition 8 violated the fundamental civil rights of a vulnerable minority group.

A copy of the order granting review of petitioners' cases can be viewed here: http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/S168047_S168066_S168078-11-19-08_ORDER.pdf

California Voters Approve Proposition 8: Same-Sex Marriage Rights Revoked

Election Day, November 5, 2008: Proposition 8, which limits marriage in California to heterosexual couples, passed Tuesday with 52 per cent support, only 5 months after the California Supreme Court legalized same-sex marriage last earlier this year.

Since the Supreme Court recognized same-sex marriage in June, it is estimated that more than 18,000 same-sex couples obtained marriage licenses. Although the California Attorney General will recognize those marriages which tool place between June and November, their legal status is far from settled. What is clear is that same-sex couples will no longer be able to obtain a marriage license in the state of California.

Many commentators have suggested that the California Amendment is singularly unique, in that it strips away the fundamental civil rights of a minority group by a vote of the majority electorate.

Three lawsuits have already been filed in the state of California to challenge the Amendment on procedural grounds. Any challenge to the substance of the Amendment is likely to fail before the California Supreme Court, which is bound to interpret the Constitution as written. However, there is a chance that one or more lawsuits on the issue of same-sex marriage rights will make it's way before the United State Supreme Court.

It's likely that same-sex marriages which were granted in California between the months of June and November, when the Amendment was approved, will be recognized in other states that either grant or honor same-sex marriages, like Massachusetts, Connecticut, and New York.

Connecticut Recognizes Right of Same-Sex Marriage

On Friday, October 10, 2008, the Connecticut Supreme Court held in the case of Kerrigan & Mock v. Dep't of Public Health, that same-sex couples have the right under Connecticut state law to enter into marriage.

The Supreme Court decision overturns the ruling of a lower court which had held that state-sanctioned civil unions offered the same rights and benefits to same-sex couples. The decision of the Supreme Court, Connecticut's highest court, cannot be appealed, and will go into effect on October 28, 2008.

By way of history, the Connecticut legislature enacted a statute in 2005 creating civil unions similar to those created in Vermont, New Hampshire and New Jersey. In 2007, when a similar bill came before the legislature which would provide full marriage equality, the legislature tabled it. Meanwhile, eight same-sex couples had brought a lawsuit against the State of Connecticut after each had attempted to apply for a marriage license in the town of Madison, and was denied. The plaintiffs argued that civil unions were constitutionally inadequate, and provided for the unequal treatment of gay and lesbian citizens.

Justice Richard Palmer, who wrote the majority opinion for the court, wrote that the "segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm," in light of "the history of pernicious discrimination faced by gay men and lesbians, and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody."

Connecticut is now the third state in the nation to recognize the right of same-sex couples to marry, following Massachusetts in 2004 and California in May of 2008. Just like the states of Massachusetts and California, the Connecticut decision only allows gay couples the state benefits of marriage. The Defense of Marriage Act, which was passed in 1996, continues to deny gay couples federal recognition of their marriages, including rights and benefits in connection with Social Security, taxation, immigration and others.

To read the opinion of the justices of the Connecticut Supreme Court in Kerrigan & Mock v. Dep't of Public Health, click here.

To view an interactive map of states that permit civil unions and same-sex marriage, click here.

The above photograph is credited to Shana Sureck for The New York Times.

DOJ Ruling Undercuts DOMA: Children of State-Recognized Same-Sex Relationships May Collect Federal Benefits

The federal Defense of Marriage Act, passed in 1996, prohibits the federal government from extending (or forcing states to extend) rights or benefits to same-sex couples and their children, even if those relationships enjoy marriage, domestic partner, or civil union status under state law.

However, as states across the country begin to affirm the rights of same-sex couples and their children - including access to the institutions of marriage, divorce, spousal benefits, and child support and custody - the justifications and practical workability of DOMA is being directly challenged. Notably, a recent ruling issued by the US Department of Justice (DOJ) instructed the Social Security Administration (SSA) that it must extend federal benefits to the non-biological child of a woman in a Vermont civil union.

In this ruling, the DOJ considered the case of Monique and Karen, who had obtained a civil union in Vermont in 2002. In 2003, Monique gave birth to a little boy named Elijah. Karen did not formally adopt Elijah because, under Vermont's civil union statutory scheme, he was considered a child of both Monique and Karen. The same year Karen, Elijah's non-biological parent, began receiving social security disability benefits. Then and now, DOMA prohibited general recognition of a legal parent-child relationship between Elijah and Karen.

Under existing SSA regulation, children of adults who receive benefits have traditionally been entitled to benefits in their own right. Previous SSA regulations define a "natural child" based on "the law on inheritance rights that the State courts would use to decide whether [the individual] could inherit a child's share of the insured's personal property if the insured were to die without a will". 20 CFR §404.355(b)(1)(2007). In other words, if an individual would be considered the child of a benefits recipient under his own state's inheritance laws, the individual would be considered an eligible child for federal social security benefits purposes.

In this case, the SSA was in a quandry. Although Elijah was a "natural child" of Karen under Vermont law, the parent-child relationship was derived from a same-sex civil union statute that the federal government was expressly prohibited from recognizing under DOMA. The SSA was unclear whether it could distribute federal benefits to Elijah, who was only related to Karen by way of her same-sex civil union to Monique. The DOJ decision deftly circumvented DOMA, and directed the SSA to distribute federal benefits to Elijah since Elijah was considered Karen's "natural child" under Vermont's intestacy statutes.

The Elijah ruling is signifigant because the SSA was instructed to treat Elijah as Karen's son even though he was related to Karen under Vermont's intestacy laws only by way of Karen's same-sex civil union to Monique.

The full impact of the DOJ ruling has not been adequately reported or commented on. After all, it is only a small crack in the expansive and largely untested Defense of Marriage Act, which denies thousands of federal rights and benefits to same-sex families and children. However, the ruling seems to indicate that federal benefits that are granted according to state definitions of family and parentage (including states that recognize same-sex marriages and unions) will not be denied despite the fact that DOMA specifically prohibits federal recognition of those same-sex relationships.

It is important to note that the Elijah decision will not provide benefits for non-biological children of same-sex parents in states that refuse to recognize the marriage or civil union of the parents. For example, even Elijah's benefits would terminate if Karen and Monique were to move their family to a state that did not recognized their union. Same-sex parents of children can avoid this result by speaking with an attorney and making sure that both spouses have legally adopted their children and have created a flexible estate plan to fill the gaps created by DOMA and similar discriminatory state laws.

The full text of the opinion can be found on-line at http://www.usdoj.gov/olc/2007/saadomaopinion10-16-07final.pdf.

Out of State Same-Sex Couples Cleared to Marry in Mass.

On Thursday, July 31, Massachusetts Governor Deval Patrick signed a bill repealing a 1913 law which was being used to deny out-of-state same-sex couples the ability to legally marry here in Massachusetts. The repeal passed swiftly in the Senate earlier this month on a unanimous voice vote, after passing in the House on a vote of 118 to 35.

The law repealed by Governor Patrick on Thursday was originally passed in 1913 as an effort to prevent couples, including interracial couples, from obtaining a marriage license in Massachusetts if they could not legally obtain one in their home state. The old law was dusted off with the help of former governor Mitt Romney, who used the law to prevent out-of-state same-sex couples from obtaining marriage licenses in Massachusetts in the wake of the Supreme Judicial Court's landmark decision in Goodridge v. Dep't. of Public Health (2003). The constitutional validity of the law was later affirmed in the Supreme Judicial Court's decision in Cote-Whitacre v. Dep't of Public Health (2004).

The traditional waiting period for new legislation was waived, making the repeal effective immediately. Out-of-state same-sex couples who are otherwise qualified to marry can begin to apply for marriage licenses in Massachusetts as early as Friday, August 1, 2008. The change in law here in Massachusetts will not have any direct effect on whether and how other states choose to treat married same-sex couples. It remains to be seen whether the rights and obligations of divorce, custody, child and spousal support, and property distribution will be available to these married couples upon their return to their home states.

With an estimated 32,000 out-of-state same-sex couples poised to take advantage of Massachusetts marriage equality in the next three years (according to a study commissioned by the state Executive Office of Housing and Economic Development), litigation and civil rights suits will undoubtedly follow these couples as they return to their home states, challenging the complex network of state and federal laws and amendments which currently prohibit same-sex marriage.

Massachusetts is now the second state in the Union (following California's recent court case) in which out-of-state gay couples can obtain a valid marriage license, even if same-sex marriage is illegal in their home state.

California Gay Marriage Primer

Now that gay marriage is set to become legal in California on June 17, 2008, how will it actually work? The following is a short list of articles and resources to help guide prospective brides and grooms in the state of California:

• Online LGBTQ magazine EdgeBoston has posted a very brief Q & A on the practical details of gay marriage in California: "Cali Gay Marriage 101". For example, "QUESTION: What’s required [to get married]? ANSWER: All that’s required of straight couples: A valid ID proving you’re both 18 or older. Most counties accept walk-ins, but appointments get speedier service.And the cost? In Sacramento County, for example, it’s $77 for a marriage license; $86 for a ceremony."
  
• A June 13, 2008, Los Angeles Times article outlines in greater detail some of the logistic and practical questions facting clerks, advocates, and those seeking to obtain a same-sex marriage in California, including whether same-sex marriages performed in Massachusetts, Canada, or Spain will be automatically recognized by California on June 17, 2008.
  
• The California Department of Public Health website has published updated Marriage License Information, including an update which includes updated marriage forms, and an open letter of instruction to all the county clerks and recorders.
  
• The website WeddingVendords.com is posting updated information on same-sex marriage in California, including the cost of a license, residency requirements, change-of-name information, as well as a directory listing the addresses and telephone numbers of each of the county clerks in California.
• About.com has posted an article with more information on applying for a marriage license in the state of California.

To all those who plan to take advantage of marriage equality in California when it becomes legal on June 17, 2008, and the countless others who may choose to do so in the future, congratulations!

California Supreme Court: Gay Marriage Ban Unconstitutional

On Thursday, May 15, 2008, the California Supreme Court struck down California's ban on same-sex marriage and ruled that the state's current Domestic Partnership laws were constitutionally inadequate in an historic 4-3 decision.

The cases under review were brought by the city of San Francisco, two dozen gay and lesbian couples, Equality California and another gay rights group in March 2004 after the court halted San Francisco's monthlong same-sex wedding march that took place at Mayor Gavin Newsom's direction.

The legal issues involved in the California case differed slightly from court cases brought in other states, like Vermont and Massachusetts, because California's statutory Domestic Partnership scheme already provides same-sex couples access to essentially all the rights, privileges, and responsibilities as opposite-sex married couples. In this way, the dispute was less about substantive tangible rights, which same-sex couples already theoretically enjoyed in California, and more about the constitutionality of providing a separate-but-equal statutory scheme for same-sex couples.

As the Court put it, "the question ... is whether ... the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution."

Also of interest is that the California Court (unlike Massachusetts) framed its constitutional equal protection analysis of classifications or discrimination on the basis of sexual orientation as one deserving a greater scrutiny, or "strict" judicial scrutiny, requiring the state to demonstrate the classification to be "necessary" for the purposes of some "compelling state interest".

The court reasoned that, in "Applying this standard to the statutory classification here at issue, we conclude that the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes — the interest in retaining the traditional and well-established definition of marriage — cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest."

In reaching its decision, the Court drew heavily from the tradition of cases overturning laws barring interracial marriage, (like Perez v. Sharp and Loving v. Virginia) when it proclaimed that "Tradition alone, however, generally has not been viewed as a sufficient justification for perpetuating, without examination, the restriction or denial of a fundamental constitutional right."

The Court decided in its majority opinion, "that although the provisions of the current domestic partnership legislation afford same-sex couples most of the substantive elements embodied in the constitutional right to marry, the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple’s constitutional right to marry under the California Constitution.

Accordingly, we conclude that the right to marry, as embodied in article I, sections 1 and 7 of the California Constitution, guarantees same-sex couples the same substantive constitutional rights as opposite-sex couples to choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage."

In practical terms, the court issued a Writ of Mandate directing all state and local officials and clerks to take the steps necessary to carry out the ruling of the Court, and to perform their duties in a way that is consistent with the Court's decision. The Court remanded the decision to the Appeals Court for further necessary action consistent with therewith.

The full text of the California Supreme Court decision, In Re: Marriage Cases, can be viewed here in its entirety.

Mildred Loving, Plaintiff in Interracial Marrige case (Loving v. Virginia) Dies at 68

In 1967, Mildred Loving and her husband, Richard, pictured left, successfully challenged Virginia's laws prohibiting marriage between persons of different races. The unanimous landmark Supreme Court decision in Loving v. Virginia (which can be viewed here in its entirety) not only struck down state anti-miscegenation laws like the one in Virginia, but would also become an essential tool in the legal fight for same-sex marriage equality.

In striking down Virginia's law, which made it a criminal offense to marry a person of a different race, the Court drew on both Equal Protection Clause and Due Process Clause principles.

The Equal Protection Argument

The Court found that, "there can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race."

The Court would reason that, "At the very least, the Equal Protection Clause demands that racial classifications, ... if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate."

The justices concluded there were no articulable rationales for the law other than hateful and invidious discrimination on the basis of race. The Court held that without such a permissible (or even rational) state objective, anti-miscegenation laws worked to deprive the plaintiffs' of their Constitutional guarantee of equal protection under the laws.

The Due Process Argument

The Court's Due Process Clause analysis in the Loving Decision is also significant to those who continue to advocate for a continued expansion of marriage equality.

In its Decision, the Court examined the very institution of marriage itself, and described it as one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888)." The Court went on to reason that, "To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law."

The last paragraph of the Decision proclaims that, "The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

This Constitutional declaration would reverberate and resurface decades later as same-sex couples presented their families and relationships to the Courts for legal recognition and protection.

The Fight for Expanded Marriage Equality

Although numerous important cases would provide fertile soil for the groundbreaking Massachusetts same-sex marriage case of Goodridge v. Dep't of Public Health (Griswold v. Connecticut, Romer v. Evans, Lawrence v. Texas, Baehr v. Lewin, Baker v. State of Vermont, etc.), the powerful and analogous Loving v. Virginia decision would provide a narrative backdrop for the Massachusetts decision.

For example, the Court observed that, "Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race."

And just as the Supreme Court had done in the Loving case, the Massachusetts SJC waded through the State's proffered rationals for a prohibition on same-sex marriage and found that: "The department has had more than ample opportunity to articulate a constitutionally adequate justification for limiting civil marriage to opposite-sex unions. It has failed to do so. The department has offered purported justifications for the civil marriage restriction that are starkly at odds with the comprehensive network of vigorous, gender-neutral laws promoting stable families and the best interests of children. It has failed to identify any relevant characteristic that would justify shutting the door to civil marriage to a person who wishes to marry someone of the same sex.

The Court concluded that "Limiting the protections, benefits, and obligations of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution."