Making It Legal

A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions

Making It Legal

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Making It Legal

, Attorney & Mediator and , Attorney

, 4th Edition

With the only comprehensive guide to same-sex relationship laws in the U.S., Making It Legal discusses the important factors involved in the personal decision to marry, along with the issues that every married couple may face:

  • What are the special needs of same-sex couples with kids?
  • What happens when you want to file your taxes?
  • When is a will or a living trust needed?
See below for a full product description.

Marriage equality is here to stay: Understand the benefits and complications

Full legal marriage is now available in all U.S. states. But there are still many questions that same-sex couples should discuss before walking down the aisle. Learn about: 

  • adoption and legal parentage rules
  • your state's laws about same-sex domestic partnerships and civil unions
  • whether your registration will be recognized if you move to a different state
  • the federal tax implications of getting married or registered
  • how marriage will affect your family if you have children, and
  • responsibility for your partner's debts if you're married.

 

This 4th edition contains fully updated laws for all states.

 

For Legal Updates on LGBT Law, Click here

 

“Indispensable and informative.” - Gavin Newsom, Lieutenant Governor of California

“Hertz and Doskow offer the sensible fruits of their decades of experience so you can sort through your options and make a plan.” - Jennifer C. Pizer, Senior Counsel and Director, National Marriage Project, LAMBDA Legal

“For gay couples and their professional helpers this is a necessary guide through the confusing patchwork of laws that apply to gay relationships, partnerships, unions and marriages.” - Don Clark, phD, Author of Loving Someone Gay

ISBN
9781413322927
Number of Pages
256

1. A Brief History of the Same-Sex Marriage Movement

  • The Not-So-Good Old Days
  • The Marriage Pioneers
  • The Emergence of Gay Families
  • Domestic Partnership: In the Beginning
  • The Question of Marriage

2. Same-Sex Marriage Around the World and at Home

  • The International Landscape
  • The Domestic Landscape

3. What It Means to Be Married: The Rules of Marriage and Divorce

  • The Architecture of Marriage
  • Rules of Marriage in the Present
  • Rules of Divorce
  • Marriage and Parentage
  • The Benefits of Marriage

4. The Real-Life Consequences of Legal Discrimination

  • The Lingering Consequences of Nonrecognition and How to Avoid Them
  • Special Issues for Transgender Partners

5. Marriage Material

  • Applying Logic to Picking a Partner
  • Selecting a Mate: The Historical Backdrop
  • Legal Barriers to Commitment
  • Things to Consider Before Saying “I Do”

6. Ten Steps to a Decision

  • The Ten Steps to a Decision

7. To Prenup or Not to Prenup

  • What’s a Premarital Agreement?
  • Essential Ingredients of a Prenup
  • The Process of Creating a Prenup
  • The Emotional Dimensions
  • Making Agreements If You Choose to Remain Unmarried
  • The Bottom Line: Costs of a Prenup

8. Avoiding the Ugly Gay Divorce

  • The Lessons of Experience
  • Things You Should Know About Divorce
  • Divorce Stories
  • Don’t Become the Bad or the Ugly
  • How to Resolve Conflict at Divorce
  • Collaborative Divorce
  • Avoiding the Ugly Gay Divorce When You’re Unmarried

9. Estate Planning for Same-Sex Couples

  • Planning for Disability
  • Planning for Death
  • Intestacy Rules
  • Other Ways to Transfer Property at Death
  • Fiduciary Duties and the Problem of “Influence”
  • Special Issues for Parents
  • Cautionary Tales
  • Estate Planning When You’re Not Married or Legally Partnered

The End

Appendixes

A. Resources

  • Books
  • Websites

B. The Marriage License Test

Index

Chapter 1
A Brief History of the Same-Sex Marriage Movement

 

The Not-So-Good Old Days

The Marriage Pioneers

The Emergence of Gay Families

Domestic Partnership: In the Beginning

   The Impact of AIDS

   The Expansion of Domestic Partnership

The Question of Marriage

   Gay Soldiers and Lesbian Moms

   Aloha: Marriage Equality Comes and Goes in Hawaii

   The Political Game

   The Marriage Equivalent Movement

   The Marriage Equality Movement

 

Why read about the history of the gay marriage movement? For one thing, you don’t have to worry that it will take up a lot of your time. We have come so far, so fast, in so many ways, that the time period you’ll be reading about is fairly compressed (and this summary is a compressed version of it). For another, it’s a fascinating story of a diverse community evolving in the face of political and social forces that no one could have anticipated even 50 years ago. The current confusion of rules for same-sex couples has emerged from a complex political and legal history, and the recent legal and political victories did not occur in a vacuum. Knowing the history will help you in trying to make sense of your legal options.

Just over fifteen years ago, in the introduction to my previous book, Legal Affairs, I offered readers the following caution: “If same-sex marriage is ever allowed, you will need to think about whether marriage is right for the two of you, not just whether it’s politically correct.” Little did I imagine in 1998 that we would all be facing this question so soon.

The Not-So-Good Old Days

While there certainly were same-sex relationships back through the ages, and even cultures where such relationships were socially acceptable, the modern movement for relationship recognition in the United States only began around 1969. In those years, getting married was of little interest to most lesbians or gay men—either legally or personally. If the topic of marriage ever arose, it usually related to getting out of a straight marriage—not getting into a gay one. Even long-term same-sex couples lived in a world of personal bonds, social networks, and private commitments—not a world of formal marriage or legal recognition. (And by the way, we were all simply “gay” back then, not LGBT, Q, or I.)

Both personal and political struggles in those early years focused on obtaining recognition and validation as gay individuals, not as couples, and on winning the basic right to be safe from harassment, discrimination, violence, and social exclusion. Couples knew that their relationships were not likely to be acknowledged, and most of us accepted, sometimes almost happily, the lack of any public recognition of our relationships. (The quintessential novel of gay coupledom in that period was Christopher Isherwood’s A Single Man, which tells the story of a recently widowed gay man whose long-term partnership was invisible even to those closest to him, and who must therefore endure the pain of mourning his recently deceased lover alone.)

This was a time when most homosexuals lived deep in the closet, and coming out at all could jeopardize one’s physical safety, never mind one’s social standing or economic security. Among the small minority of gay folks who were open about their lives, many appreciated the experience of living outside of the social framework of marriage and divorce, creating their own living arrangements in isolation from most of mainstream society.

The legal battles of those years reflected this reality. For gay men, the relevant law was criminal law. Men were frequently arrested if they attempted to pick up a sexual partner in a public place, subscribed even to a nonpornographic gay magazine, or frequented a local gay watering hole. Given this oppressive atmosphere, legal and political organizing was directed at lifting the criminal prosecutions. Legalizing a love relationship in any way, let alone by marriage, would have seemed an impossible and, for most of us, an irrelevant quest.

For lesbians, the battlefields were typically located on quite different legal terrain. There were fights to keep women’s social institutions free from harassment, to publish lesbian magazines, or to form social organizations, but for the most part, lesbians were in court most often when they tried to retain custody of their children after leaving a heterosexual marriage. Newly out lesbian moms often faced legal fights with ex-husbands over the right to continue coparenting their children, and for the most part, courts were not sympathetic. Homosexuality alone was often seen as sufficient grounds for denying a lesbian parent all access to her children or for justifying limitations on custody or visitation.

Given these realities, legal marriage was the last thing that most lesbians and gay men worried about. Also, many newly liberated lesbians and gay men had already served their time in heterosexual marriages and were not eager to re-create the same arrangements in their new lives. For women, negative experiences as the subordinate partner in a heterosexual marriage, coupled with an emerging feminism, led to a view of marriage as a restrictive, confining, sexist institution that had little appeal. And for gay men, marriage meant gender roles, conventionality, and monogamy, none of which matched the real lives of most sexually active gay men. Even those who were living in long-term relationships did not view them as marriages, but rather, as long-term partnerships that thrived outside of any legal framework.

This self-image as outsiders was reinforced by the living arrangements and political values of those who were the most vocal in the gay community—for the most part a younger, more activist crowd. Gay liberation itself was framed as a “movement” that existed in opposition to mainstream society—a struggle for liberation, not assimilation. Marriage, to the extent it was even discussed at all, was viewed as an institution that resided deep in the heart of the mainstream, and that was not where many of us wanted to live.

In that political context, lesbians and gay men who had the audacity to advance a campaign for legal marriage were seen as retrograde—to the extent they were even noticed at all. Marriage simply was not a high legal or political priority, despite the fact that the lack of marriage equality was broadly understood to have discriminatory consequences for many lesbians and gay men.

The Marriage Pioneers

In 1969, the historic Stonewall riots took place in New York City—the first time in the United States that the LGBT community fought back visibly and powerfully against oppression and homophobia. It was a time of enormous social change and agitation, with liberation movements breaking out in the women’s community and other marginalized communities everywhere. The sexual “revolution” of the 1960s was spreading wildly—for gays and straights alike. And then in Minneapolis, Minnesota, of all places, Jack Baker and Mike McConnell walked out on that highly charged political stage. In contrast to Stonewall and other political events, and even against the backdrop of a fairly active gay community in Minnesota, Baker and McConnell were about as mainstream as a gay couple could be. Baker was a law student and later student body president at the University of Minnesota, and his lover McConnell was a university librarian. Together they went to Minneapolis City Hall and applied for a marriage license.

I well remember their story, as I was living in Minnesota at the time —not as a gay activist or lawyer, but rather, as a high school senior trying to figure out my own sexuality and my place in the larger society. I had sat in the back row of a meeting of Minnesota’s vibrant gay liberation organization, named “F.R.E.E.,” which stood for “Fight Repression of Erotic Expression”—not the sort of organization that would ever be fighting for the right to get married. I’d even been taken by my older sister and her gay best friend to the local gay bar, where I got to see men kissing and enjoyed watching the drag queens having a great old time. But marriage?

As news of Baker and McConnell’s rejection at City Hall and subsequent lawsuit spread, the reaction from the gay community was intensely and universally negative. Baker and McConnell were not expressing the rejection of straight society that was the gay norm, but rather, a desire to enter the most conventional core of the heterosexual mainstream. Their agenda appeared to defy everyone’s sense of how the world worked. Homosexuals wanting to get married was as strange a concept for gay people to absorb as it was for straight folks—and for the latter, it was virtually unthinkable.

Not surprisingly, Baker and McConnell’s efforts were not successful, either legally or politically. Their application for a marriage license was denied, and in a series of rulings over the next few years the Minnesota courts upheld that denial—resulting in the world’s first published appellate court case on the issue of gay marriage.1 Applying reasoning that presaged the recurring basis for rejecting such appeals over the next three decades, the Minnesota justices concluded that because marriage was “by definition” the union of a man and a woman, homosexual couples could not assert a right to marry. The court rejected any application of Loving v. Virginia, the U.S. Supreme Court case that lifted the ban on interracial marriage.2In other words, the definition of the word “marriage” set the rules for the reality of marriage—end of story. It took more than 40 years before the Minnesota legislature reversed this ruling—in 2013, it legalized same-sex marriage in my home state.

A few couples launched similar efforts to marry legally in other states over the ensuing years, but each attempt was isolated and none garnered much support. Each of these efforts simply failed. Gay people remained outside of mainstream society, and while we would fight vigorously to improve the quality of our marginalized lives, we didn’t really expect—and some of us didn’t desire—to be invited back in from the margins.

The Emergence of Gay Families

It seems ironic now, but looking back through the prism of subsequent legal developments, the dramatic successes of a gay liberation movement that disdained marriage may actually have sowed the seeds for the later marriage campaign. Throughout the 1970s and 1980s, lesbians and gay men emerged from the closet, embraced their sexual identities and formed new and lasting relationships, gathered the courage to come out at work, and (primarily in the women’s community in the early decades) found ways to raise children proudly and openly—all in the absence of legal marriage. We weren’t getting married, but we were sexually active, socially alive, and creating loving relationships and solid communities across the United States.

Although no one was trying to do it, the movement’s establishment of greater freedom and visibility for lesbian and gay couples created underlying societal conditions that made the creation of legal relationships both desirable and, in the end, achievable. As the number and visibility of long-term same-sex couples grew, and especially as so many couples formed lasting bonds that ended up looking very similar to traditional heterosexual families, it was only a matter of time before the injustices wrought by the denial of legal marriage would become increasingly
unacceptable. In this way, a path of liberation that was not directed
toward the legalization of gay marriage ended up taking us there.

Not that it happened in any straightforward or direct way. Instead, in an odd congruence of political realism with legal practicalities and the community’s underlying discomfort with the institution of marriage, domestic partnership was born.

Domestic Partnership: In the Beginning 

By the early 1980s I was a young lawyer living in the San Francisco Bay Area, and it was there that the gay community launched a series of campaigns designed to obtain limited benefits for couples at the local level—with health insurance coverage for city employees as the highest priority—under the newly minted term for nonmarital relationships: “domestic partnership.”

Domestic partnership appeared to be an ideal alternative to marriage. It covered the immediate practical needs of socially conventional cohabiting partners, like health insurance, without trying to barge into any established social norms such as marriage, and thus it was unlikely to offend the heterosexual community. The fact that the campaign wouldn’t be seen as a quest for conventional marriage was also a plus within the gay activist community. In some settings, it even offered an option for opposite-sex couples who wanted to escape the confines of traditional marriage. 

In practical political terms that were key to its success, domestic partnership was a legal status that could be granted by local governments and private employers without getting into political fights on a national or even a statewide level. Progressive cities like Berkeley or innovative companies like New York City’s Village Voice newspaper could extend spousal benefits to their own residents or employees, with no need to ask permission from any less enlightened entities.

Even so, these early efforts were not always an easy sell. It took five years of lobbying by a stalwart city employee before the city of Berkeley enacted the nation’s first domestic partnership ordinance in 1984. At the outset, only city employees could register, and the program offered only dental insurance coverage and leave benefits to city employees, but within a year Berkeley began including medical insurance benefits as well. In 1985, West Hollywood took a major step forward by creating a domestic partnership registry open to all residents, not just city employees. Private employers now could extend similar benefits to those who signed up on the city’s registry.

Access to health insurance and having a say in the treatment of one’s seriously ill partner were the central concerns in the debate about the domestic partnership ordinance that was submitted to the San Francisco Board of Supervisors in 1982. The legislation was approved, but vetoed by then-Mayor Dianne Feinstein, who felt it was too radical for the time. (This was only two decades before San Francisco issued the nation’s first marriage licenses to same-sex partners. Change indeed has occurred quickly.)

It took the city several more years before the “gay capital” was ready to embrace a domestic partnership ordinance, but eventually, in 1989, San Francisco followed Berkeley and West Hollywood and enacted a citywide domestic partnership law (which exists to this day).

Domestic partnership in the 1980s meant different things to different people, but one thing it was not was marriage. It did not require a solemnization ceremony; the state system of marital property law did not apply; it had no hint of religious sanctification; and it did not fundamentally change the legal or financial relationship between the partners. The local rights and employment benefits that it provided were only marginally beneficial to the gay community at large, though they were of real value to the affected employees. Nevertheless these new laws were meaningful to the extent they established the first legal framework for governmental recognition of same-sex relationships.

Early domestic partnership ordinances also set up a system of registration that other cities and private employers could use as a model.
Recognizing that domestic partnership was an alternative to marriage, many jurisdictions and companies allowed opposite-sex unmarried couples to register as domestic partners as well—but overall it was the LGBT community that carried the domestic partnership campaign forward.

The Impact of AIDS

Shortly after the first domestic partnership registration systems were set up in 1984, AIDS began to spread through the gay community. What had begun as a thin trickle of sad stories about how the absence of marriage affected lesbian or gay couples turned into a torrent. The realities of illness and death transformed a theoretical injustice into a daily tragedy for thousands of people. At the same time, the heartrending story of Karen Thompson, a lesbian who was barred from caring for her partner, Sharon Kowalski, after a car accident left the latter incapacitated, became the poster story for the lack of rights, standing in for the stories of many others.

All across the country, gay men were being kept out of their sick lovers’ hospital rooms, denied the right to make medical decisions for their partners, and deprived of their rightful share of financial assets, all because they were not legally “related” to their dying partners. The refusal by families and social institutions to recognize these caregiving partners as family brought home in a powerful way the truth about the legal discrimination that had existed for so many decades. Domestic partnership registration became all the more valuable, as it offered a set of basic rights, like hospital visitation and health insurance, that could make a critical difference in the lives of those with AIDS (and other medical conditions) and their same-sex partners.

AIDS didn’t just bring to the surface the discriminatory treatment of our relationships. It also changed, sometimes for the better, the way in which others viewed those relationships. As a San Francisco lawyer doing legal work for men with AIDS in the mid-1980s, I witnessed many families arrive in San Francisco and meet the partners of their dying sons and brothers for the first time. Parents were forced to acknowledge their son’s chosen community, and often helped to care for their dying relative under the welcoming umbrella of their host, the surviving “domestic partner.” At the same time, same-sex relationships were gaining new respect and recognition in films, plays, and personal stories about the epidemic.

The Expansion of Domestic Partnership

In the 1980s and early 1990s, a growing number of cities began offering local tax benefits to registered domestic partners, and others extended employment benefits, such as bereavement and parental leave. By 1992, even some publicly traded companies were offering such benefits, as were many of the larger university systems. Eventually, a majority of Fortune 500 companies began extending benefits to domestic partners—some only to same-sex partners, and others to opposite-sex unmarried partners as well. However limited the benefits were, they bestowed an increasingly meaningful symbolic benefit to the entire community, and they raised the expectations of same-sex couples.

In 1987, just when life in our gay community seemed as bad as it could be amid the widening scourge of AIDS, it got worse. The United States Supreme Court ruled that it was not unconstitutional for the state of Georgia to criminalize homosexual acts simply because, in effect, the Bible said so.

If sentencing two adult men to jail for enjoying a consensual sexual relationship in the privacy of their own home was legally acceptable in the eyes of the highest court in the land, then it was evident that extending the rights of legal marriage to our families was utterly beyond hope. Activist attorneys weren’t just discouraged, we were preoccupied with other tasks. The growing needs of gay men who were dying from—and then, as medical progress was made, learning to live with—AIDS, and increasingly, the needs of lesbians raising their own children, were much higher legal priorities for most of us.

The Question of Marriage

During this same period of the 1980s and 1990s, the number of same-sex couples in long-term committed partnerships and the number of lesbian families raising children continued to grow. Nonetheless, marriage was still not a front-burner issue for our community.

The marriage issue was framed very differently in the early 1990s than it is now. Gay civil rights groups openly debated whether to devote resources to a fight to legalize same-sex marriage. The pro-marriage-equality camp argued that marital relationships are the basis of significant material benefits and social legitimacy. For that reason alone, advocates argued, lesbians and gay men should have equal access to marriage and the right to make the same choices as opposite-sex couples. Many shared the view that marriage was not the ideal way to organize society, but still felt that justice required allowing lesbians and gay men equal access to the institution.

On the other side of the debate, skeptics took the position that marriage was fundamentally a sexist institution based upon a social model that presumes a dominant and higher-paid husband, a deferential and lower-earning wife, a presumption of monogamy and permanence in the relationship (“till death do us part”), and a societal favoritism of couples over single people—all of which fostered values directly contrary to those espoused by the gay liberation movement. The marriage skeptics argued that it was better to work toward building a society that would provide housing, health insurance, and social dignity for every individual, single or coupled, instead of trying to squeeze everyone into a marriage “box” that was constricting and narrow.

This debate still exists, but it continues under the surface, as the marriage equality movement has emerged as the primary battleground for equality.

Gay Soldiers and Lesbian Moms

In the mid-1990s, two seemingly unrelated developments occurred: The opposition to the military’s policy of discharging gay soldiers became more vocal and visible, and there was a noticeable “gayby” boom in the lesbian community. While on the surface, these developments had little to do with the marriage movement, they had a profound impact on how society saw our relationships, and in turn, how we envisioned our own place in society. Gay soldiers? Lesbian moms? Clearly, this was not the 1970s picture of homosexual activists rioting in the streets, and certainly it was not the world of radical lesbian feminist separatists and sexually adventurous gay men. Over time, and quite unpredictably, these two trends didn’t just change the way the straight world saw us; they also fostered and then highlighted a noticeable trend toward the mainstream in our own communities. Call it conservative or call it assimilationist—or call it equality. Whatever you call it, what it meant to be gay was changing dramatically. Lesbians and gay men were moving out of gay ghettos, raising kids of their own, demanding to join the military, and at the same time coming out in the corporate workplace all over the country.

These changes could be felt and seen everywhere. I certainly saw them in my legal practice. Couples throughout the San Francisco Bay Area were buying houses, raising kids, taking on corporate leadership positions, and entering politics. Over time, some of them were, inevitably, breaking up. All of them needed advice about how to structure their family lives in the face of a still-homophobic world where marriage remained unavailable. 

In light of these social changes, it should have been no surprise to see a blossoming of the desire to legalize same-sex marriage. Couples were already living lives that resembled marriage in many ways, and yet they were continually confronting the discriminatory reality of the lack of marriage equality. It was frustrating, not to mention expensive, for partners in marriage-like relationships to try to craft protections without the support of the legal framework of marriage. The gap between social reality and legal exclusion was growing intolerable.

Aloha: Marriage Equality Comes and Goes in Hawaii

Despite the growing awareness of marriage inequality on the part of couples and the lawyers working with them on structuring (and dissolving) their relationships, the first marriage cases did not originate with any of the legal advocacy groups. On the local level, lawyers were too focused on meeting the practical needs of clients, and on the national level the advocacy groups were too discouraged by negative court decisions. The early lawsuits were grassroots efforts—brought by idealistic couples who were tired of being mistreated and disenfranchised, with the help of lawyers who were not always part of the gay legal mainstream.

This new chapter of the marriage story began to unfold in 1993, when a few gutsy couples in Hawaii linked up with a straight civil liberties attorney and sued to lift the state’s ban on same-sex marriage. Around the same time, a couple in New York State launched a parallel battle, also on their own, without the support of any national gay rights legal group.

 

Gay People Can Save Themselves for Marriage, Too

While the New York case was never able to achieve any legal success, the plaintiffs in that case exemplified just the sort of maverick independence that was fueling the marriage effort. To them, their case was a simple matter of justice, not political strategy. They were in love, and they were so traditional that they didn’t even want to live together until they were married! All they wanted was what their straight friends and relatives had: a traditional marriage, public legal recognition, and the identity of spouses to each other. They didn’t care if the courts seemed unsympathetic or if the timing of their case didn’t seem “prudent” to the gay legal strategists. They were outraged by the injustice of their situation and they wanted to right that wrong, right away. Even though they went on to lose their case in the courts, this couple and others like them deserve much of the credit for helping to bring us to where we are today.

 

The Hawaii marriage campaign was a telling illustration—and a precursor—of how unpredictable the struggle for legal marriage would be. Initially, the courts were not persuaded by the arguments for legalizing gay marriage, but eventually the Hawaii Supreme Court sided with the gay plaintiffs and ordered the parties to return to court for a trial on the question of whether there was any legal justification to ban gay marriage.

This ruling was itself a tremendous victory, as it set a new standard of questioning the government’s position and distinguished between civil and religious marriage, rather than simply deferring to a dictionary definition of marriage. It opened the possibility of actually winning such a battle. No longer was a mere citation to Webster’s dictionary or the Bible the end of the legal analysis.

After the trial, the lower court found that the government was not justified in prohibiting same-sex marriage, and legal marriage suddenly seemed possible. But then, as would happen later in so many other states, antimarriage activists switched tactics, bolted out of the courtroom, and launched a statewide ballot campaign to ban same-sex marriage. If they couldn’t win in court, they would take the issue to the voters—and in a terrible blow for the marriage movement, the people of Hawaii voted to enact a constitutional amendment banning same-sex marriage. A few more years of political wrangling ensued, but Hawaii’s great marriage victory was left in tatters. In the end, the state only managed to offer a “reciprocal beneficiary” registration scheme that provides very few substantive rights. (In 2010, the Hawaii legislature passed a marriage equivalent civil union bill, but governor Linda Lingle vetoed it.)

The Political Game

The Hawaii victory invigorated antigay activists, who ramped up efforts to prevent same-sex marriage at both the state and federal levels. The anti-equality forces won their biggest victories in the legislatures. In 1996, the United States Congress enacted the “Defense of Marriage Act” (DOMA), which (until 2013) precluded federal recognition of any same-sex marriage—even one that is lawful in the state where it occurred and recognized in the couple’s home state. Over the next five years, more than 40 states passed “mini-DOMA” statutes, prohibiting same-sex marriage. Some passed so-called “super-DOMA” laws, which provide not only that a state itself doesn’t sanction same-sex relationships of any kind, but also that same-sex relationships that are legal in other states won’t be recognized there.

Whether marriage as an institution was good for people and whether marriage was the right choice for any particular couple were no longer the pressing political issues for the LGBT community, which had no choice but to respond to the homophobic activism. And so, very quickly, and quite surprisingly to some of us older gay rights advocates, marriage equality became the frontline gay civil rights battle.

The Marriage Equivalent Movement 

Even as the marriage equality campaigns progressed, domestic partnership continued to play an important role. For politicians, domestic partnership offered a safe harbor—it provided an expandable package of practical rights without stepping into the political danger zone of marriage, instead keeping the focus on the practical and legal dimensions of the relationship. 

In an odd juxtaposition of political agendas, antimarriage and promarriage forces could join in support of domestic partnership, with one faction (ours, that is) viewing it as a stepping-stone to marriage, and the other side hoping that it would be the only status ever granted to same-sex couples. More and more companies, universities, and municipalities enacted domestic partnership programs.

For a while it appeared as though the “domestic partnership but no marriage” stalemate would rule the day. Starting in the late 1990s, however, the line between domestic partnership and legal marriage began to blur. The roots of the U.S. breakthrough came from Europe: A comprehensive civil partnership system called PACS was enacted in 1999 in France, granting some marriage rights to registered couples of any gender configuration, without calling it marriage. Again, the idea was to avoid the highly charged language and the symbolic dimensions of marriage, while providing marital rights as practical benefits.

Inspired by this blended approach, a new kind of in-between arrangement emerged in the United States as well. In 1999, the Vermont
Supreme Court ruled that denying marital benefits to same-sex couples was unconstitutional. The court didn’t say there had to be marriage, but rather, that it was wrong to deny marital rights to lesbian and gay couples. After a great deal of statewide political haggling, the Vermont legislature opted not to legalize same-sex marriage, but instead to establish a civil union status that came with all of the same rights and duties of marriage.

The resulting political compromise made sense historically and was probably unavoidable, but the adoption of the model in other U.S. states has created a messy patchwork of laws that can make life extraordinarily complex for many same-sex couples. Several states have established some form of domestic partnership or civil union—some nearly identical to marriage except by name, and others offering only a limited selection of marital benefits. Meanwhile, as this book goes to press, 16 states and the District of Columbia allow same-sex marriage, and every state is following its own course with regard to the recognition of partnerships or marriages originating elsewhere. (See Chapters 2 and 4 for the specifics of the state rules.) It’s a crazy and, in the end, an unworkable system, but it is our current legal reality.

The Marriage Equality Movement

To an extent that would have been unforeseeable even five years earlier, the “just don’t call it marriage” compromise was itself not destined to last very long. In 2003, the Massachusetts Supreme Court rejected the compromise approach and issued a landmark ruling declaring that nothing short of marriage would remedy the discriminatory impact of the state’s opposite-sex-only marriage rules. The court’s written opinion was deeply touching, as it spoke of the need to impart dignity and respect to all couples. This wasn’t just a matter of extending practical benefits that could be conferred by state registration, but rather, an insistence by the court on full marriage equality, including the name.

After the ruling, the Massachusetts legislature resisted the clamoring demands of antigay activists to rescind the court’s ruling, and in May 2004, the nation’s first legal gay weddings were celebrated in the Bay State. Since then, more than 15,000 same-sex couples have married in Massachusetts.

Gay activists weren’t the only ones demanding change. Also in 2004, San Francisco’s new mayor, Gavin Newsom, was so deeply offended by antigay comments made by then-President Bush in his State of the Union address that he came back to San Francisco and ordered city officials to start issuing marriage licenses to same-sex couples. 

The result was an episode of political theater that was extraordinary even by San Francisco standards. Lesbians and gay men lined up in the pouring rain to receive official blessings on their relationships, and San Francisco City Hall was awash in wedding gowns and tuxedos, buoyantly happy couples, and beaming relatives celebrating the weddings of their children, parents, and friends. The California courts shut down the unauthorized weddings within a few weeks (and soon after that invalidated all of the marriages), but the genie was out of the bottle. Within a day of the California Supreme Court’s issuance of an order to stop the San Francisco marriages, four separate lawsuits challenging the ban on gay marriage were filed in California courts.

The California legal train had left the station, and four years later, on May 15, 2008, it arrived at the ultimate destination when the California Supreme Court threw out the ban on same-sex marriage. The court’s ruling was eloquent in its defense of the rights of all people in loving relationships to enjoy the rights and privileges of marriage. While the justices recognized that couples already had access to the technical rights of marriage under California’s domestic partnership laws, they ruled that the creation of a second-class status was constitutionally unacceptable and—for the first time—included lesbians and gay men in the category of suspect classes entitled to the highest level of constitutional protection in the courts.

But just six months after the court ruled, and after nearly five months’ worth of weddings had taken place, California voters approved Proposition 8, which provided that only marriage between a man and a woman was valid and recognized in California. Once again, the marriage door had slammed shut. Supporters of marriage equality protested the proposition in a lawsuit to the California Supreme Court, which ruled in May 2009 that Prop 8. was valid and allowed the constitutional amendment to stand. Same-sex couples thus continued to be barred from legal marriage in California—but the Supreme Court also ruled that those who married between June and November 2008 were still married. The California legislature also passed a law clarifying that California would recognize same-sex marriages, as well as civil unions and domestic partnerships, from other states. In 2009, two same-sex couples filed a federal lawsuit challenging Proposition 8, and a trial was held, ending in a ruling by Judge Vaughn Walker that Proposition 8 was unconstitutional. The case was immediately appealed to the Ninth Circuit Court of Appeals and eventually, in June 2013, the United States Supreme Court tossed out the Prop. 8 appeals, and the same-sex marriage door reopened in California. All of these important developments did nothing to mitigate the fact that continuing inconsistencies in the laws create confusion for families as well as the institutions, like employers and insurers, for whom family relationships are relevant.

In another landmark decision in 2008, the Connecticut Supreme Court ruled in October that the state’s ban on same-sex marriage was unconstitutional, and that the civil union option already in effect there was separate and, thus, not equal. Following the same reasoning as the California Supreme Court, the Connecticut justices ruled that segregating same-sex couples into a lesser form of partnership—even one offering the same rights and duties of marriage—was unacceptable. That decision stood firm through the November 2008 elections, and that month same-sex couples began marrying in Connecticut. Then, within a few short months, the Iowa Supreme Court and the Vermont and New Hampshire legislatures opened the door to legal marriage for same-sex couples. In 2010, Washington D.C. also began issuing marriage licenses to same-sex couples. Within the next three years, voters, legislators or courts in Delaware, Hawaii, Illinois Maine, Maryland, Minnesota, New Jersey, New York, Rhode Island, and Washington State granted same-sex couples the right to marry.

Since 2010, there has been a true tidal wave of change regarding same-sex marriage. More and more states embraced marriage equality, and the public sentiment turned in an unexpectedly dramatic way. Numerous lawsuits were filed in nonrecognition states, and while the United States Supreme Court was initially reluctant to take up the issue, by late 2014, the emergence of a few inconsistent federal appellate court decisions pushed the Court to dive right into the conflict. The Court accepted several cases for review—from Michigan, Kentucky, Ohio, and Tennessee—and in June of 2015, it issued a historic decision in the appeal of James Obergefell.

Obergefell had married his long-time partner, John Arthur—as Arthur was dying—in the hope of having their relationship honored for what it was—a marriage. When his partner died, Obergefell asked to be listed as a surviving spouse on Arthur’s death certificate, but was denied that right under Ohio law. This was a particularly poignant case, because Obergefell was not seeking money or tax benefits, but rather the simple dignity of recognition.  

In its opinion striking down all state bans on same-sex marriage, the Court focused on the crucial importance of marriage in our society and pointed to Obergefell’s desire to join the institution—not change it in any way. The Court based its ruling upon the constitutional right to equal dignity and respect under the law and the access to marriage as a component of liberty guaranteed by the United States Constitution. 

And so, the decades-long struggle for marriage equality had come to a victorious climax. The legal decision was made possible by one swing vote on the Court, but in truth, it was the result of many years of political activism, attitudinal transformation, and courageous leadership. And except for a few, isolated holdouts in the form of county clerks who refused to honor the law (one of whom ended up going to jail in Kentucky for contempt of court before she finally backed down and let her clerks issue marriage licenses to same-sex couples), same-sex marriage has become the new national reality.

In other words, it took just 40 years for the marriage equality movement to evolve from the lonely fantasy of two Minnesota men to a reality for every same-sex couple in the country.

 

Timeline

1578

–Several male couples married in a Catholic church in Rome, 11 of whom were later burned to death as heretics

1969

–Stonewall Riots in New York City

–Jack Baker and Michael McConnell apply for a marriage license in Minnesota

1972

–Minnesota Supreme Court rejects marriage claim

–Washington State court rejects marriage claim

1977

–Anita Bryant forms a group called “Save Our Children” to repeal antidiscrimination laws in Florida

1978

–Antigay teachers campaign in California (Briggs Initiative)

–Assassination of Harvey Milk

1981

–First reported case of AIDS (originally known as GRID)

Timeline, continued

1982

–Lawsuit seeking domestic partnership rights defeated in
San Francisco

–San Francisco’s domestic partnership ordinance vetoed

Village Voice newspaper gives domestic partner benefits

–Liberace sued for palimony by ex-lover

–Wisconsin passes first statewide antidiscrimination law

1984

–Berkeley city employees win domestic partnership protection

1985

–West Hollywood establishes public domestic partnership registry

–Rock Hudson dies of AIDS

–First lesbian second-parent adoption approved in Oregon

1987

–U.S. Supreme Court upholds antisodomy criminal laws

1989

–San Francisco establishes domestic partnership registry

–Denmark legalizes same-sex domestic partnerships

1991

–Berkeley enacts public domestic partnership registration

1993

–Hawaii couples file a lawsuit to legalize same-sex marriage

–“Don’t Ask, Don’t Tell” gays in the military rules enacted

1996

–U.S. Congress enacts the Defense of Marriage Act

1997

–Hawaii voters pass constitutional amendment banning
same-sex marriage

1999

–Vermont court rules marriage ban unconstitutional

–France establishes PACS (domestic partnership registration)

–California enacts first statewide domestic partnership registration

2000

–Vermont legislature creates civil union (marriage equivalent) registration

2001

–Same-sex marriage legalized in the Netherlands

2003

–Massachusetts court invalidates ban on same-sex marriage

–Belgium legalizes same-sex marriage

–U.S. Supreme Court invalidates antisodomy statutes

Timeline, continued

2004

–San Francisco allows same-sex marriages; court says no

–Massachusetts allows first legal same-sex marriages

2005

–Same-sex marriage legalized in Spain and Canada

2006

–South Africa legalizes same-sex marriage

–New Jersey civil unions (marriage equivalent) commence

–Civil partnership (marriage equivalent) authorized in Great Britain

–Mexico City legalizes same-sex domestic partnership

–Uruguay legalizes same-sex civil unions

2008

–California Supreme Court lifts ban on same-sex marriage

–California voters enact Proposition 8, reinstating ban on same-sex marriage

–Connecticut court invalidates ban on same-sex marriage

–New Hampshire authorizes marriage equivalent civil unions

–New York State recognizes legal marriages from other states

2009

–Norway legalizes same-sex marriage

–California Supreme Court upholds Proposition 8, limiting marriage to a man and a woman; court also upholds validity of existing same-sex marriages

–Iowa Supreme Court invalidates ban on same-sex marriage

–Vermont, Maine, and New Hampshire gain marriage equality through legislative action, but equality in Maine is lost after a public vote

–Nevada legislature creates domestic partnership law

2010

–Maryland recognizes legal marriages from other states

–District of Columbia legalizes same-sex marriage

–Argentina legalizes same-sex marriage

–Mexico’s Supreme Court upholds marriage equality law for Mexico City

–Iceland’s lesbian prime minister marries her partner

–Illinois passes civil union bill that goes into effect June 2011

Timeline, continued

2011

–New York State approves same-sex marriage legislation

2012

–Washington State, Maine, Maryland, and Denmark legalize same-sex marriage

2013

–Delaware, Rhode Island, and Minnesota enact same-sex marriage legislation

–Brazil, France, New Zealand, Uruguay, England, and Wales legalize same-sex marriage

–Proposition 8 is overturned and same-sex marriages resume in California

–Section 3 of the Defense of Marriage Act is invalidated by U.S. Supreme Court

–The U.S. Treasury Department rules that same-sex married couples will be recognized as legally married for all federal tax purposes, regardless of where they live, so long as they were married in a jurisdiction that recognizes same-sex marriage

–A State Superior Court Judge in New Jersey overturns the state’s ban on same-sex marriage. The New Jersey Supreme Court indicates it will not reverse the decision and the Governor decides not to appeal. New Jersey becomes the 14th state to legalize same-sex marriage

–The Oregon Department of Justice rules that the state must recognize valid, same-sex marriages from other jurisdictions, even though same-sex marriage is not yet legal in Oregon

–Illinois passes a same-sex marriage bill, which the Governor has promised to sign. Same-sex marriage will begin taking place on June 1, 2014

–Hawaii passes a same-sex marriage bill which will allow same-sex marriages to take place on December 2, 2013

2015

–U.S Supreme Court strikes down all state bans on same-sex marriage

 

As later chapters will explain, there is still some significant uncertainty about relationship recognition between states, and it may be years before the federal government honors every same-sex partnership. There are maddening inconsistencies regarding parentage and custody rights, lingering problems resulting from disparate tax treatment of same-sex couples, and potential dilemmas for couples who move across state lines. But the right to enter into a legal marriage is now available to each of us.

Marriage is no longer just a theoretical question. It’s now a personal one for each of us. That’s why you are free to ask—and obligated to ask—whether you and your partner should walk down the proverbial aisle. Wholly apart from what activists and lawyers have been fighting over for the past four decades, when we meet Mr. or Ms. Right and want to settle down, each of us is now free to ask whether we should simply cohabit as we used to do, without any formal legal relationship between us, or whether we should “make it legal.”

It’s taken the heroic legal and political efforts of thousands of your gay brothers and sisters to bring us to this transformative point in our history. It’s now up to you to answer this all important personal question for yourselves—and we hope this book will help.

 

resource

To stay up to date on the progress of marriage equality, check the legal updates at www.nolo.com and the blogs at www.makingitlegal.net. 

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