Same-Sex Marriage: Past, Present, and Future

A retrospective on <i>"A Legal Guide for Lesbian & Gay Couples"</i> and Nolo's commitment to providing information about laws that affect the LGBT community.

As a result of the Supreme Court’s landmark ruling in the Obergefell v. Hodges case, same-sex marriage is now legal across the United States. Leading up to the Court’s June 2015 decision, many legal experts were predicting this result, which would have been unthinkable just a few years ago. The legal landscape for same-sex couples has certainly changed since the fight for marriage equality began.

In Nolo's first edition of A Legal Guide for Lesbian & Gay Couples – published 35 years ago – the authors focused primarily on anti-gay discrimination and the multiple areas of law where same-sex couples had no rights. The book dedicated a full chapter to a discussion of the majority of states that still criminalized same-sex relations. At the time, all states banned co-parent adoptions for same-sex couples, and the only discussion of marriage was a lengthy treatise on how best to resolve the conflicts that arise when lesbians or gay men try to end their opposite-sex marriages. But, even then, same-sex couples could obtain some legal protections through private contracts, such as a power of attorney, a will, or an agreement to co-own a home or share income. A Legal Guide for Lesbian & Gay Couples was written to help same-sex partners understand what legal options were available to help them protect their property and families.

More recently, the United States has experienced rapid legal change on the same-sex marriage front. While the change has been positive, it has, at times, created great legal uncertainty for same-sex couples across the nation. Not to be intimidated by the complexities, we responded by explaining, in simple terms, what the changes meant. For example, we addressed how you could be married under state law, but treated as single for federal tax benefits, or how you could be married in one state, but barred from getting divorced in another.

Our authors and editors designed multi-columned charts to identify which states offered certain legal rights, including domestic partnerships, parentage and adoption rights, and taxation and inheritance benefits. Some years, it seemed as though we needed to publish monthly updates, not just annual ones. The patchwork of laws across the states created such a mess that I coined a phrase to describe the newest form of anti-gay oppression: “discrimination in the form of legal complexity.”

Thankfully, much of the uncertainty appears to be over – or at least almost so. With the uplifting ruling by Justice Kennedy overturning the marriage bans nationwide, lesbian and gay couples can marry in all 50 states (and D.C.). And, they can get divorced everywhere as well. All federal agencies will recognize all marriages for all purposes, no matter where a couple was married or where they choose to live. In one refreshing sweep of constitutional adjudication, all those nasty Defense of Marriage Acts have been relegated to where they belong – the legal dustbin.

No doubt there will be some lingering problems. A few states haven’t fully implemented the marriage equality ruling, and there’s no federal recognition of civil unions or domestic partnership registrations. Parentage rights remain uncertain in many states, and our messy legal history has left many couples with confusing situations, most of which only arise only upon divorce or death. Transgender folks still face a plethora of legal discrimination, and the issues of religious freedom will continue to affect how same-sex couples are treated. So, for now, there are plenty of important topics to cover in our books, but our job – and the burden on our readers – has definitely gotten lighter.

By Frederick Hertz, co-author, A Legal Guide for Lesbian & Gay Couples, and Making It Legal, A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions.

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