Welcome News from the United States Supreme Court

June 27, 2015

Yesterday was an epic day — and truly unexpected in many ways.   The United States Supreme Court, by a 5-4 majority, ruled that the Due Process and Equal Protection clauses of the United States Constitution requires the invalidity of the remaining bans on same-sex marriage.  In a nutshell, the Justices states that access to marriage – with the partner of one’s own choice – is an essential element of the right to autonomy and liberty, guaranteed by the Constitution.  The Justices also ruled that marriage is an essential right in our society, and then went on to say that marriage is the best way for families to be formed – for the protection of the family and the children.

Here’s a link to the ruling:


The decision is landmark in many respects.  It looked beneath the explicit language of the Constitution to make this ruling, and didn’t just search for explicit words in the text of the document to justify its decision.  The ruling also made it clear that distinguishing between straight and gay couples in legislation really has no lawful basis – which may lead to other positive legal rulings in the future.   It also reinforced the notion that gay couples really aren’t trying to change society – in fact, they stressed that the couples wanting to get married were upholding the most traditional values of American society.

The dissents made several points which are not so easily dismissed.  For the most part the dissenting opinions focused on the absence of any express provision in the Constitution that talks about the freedom to marry or the right to autonomy when it comes to choice of marital partner.  Technically they are correct – but from a political and moral standpoint, they are wrong in my opinion.  It is true that the Court reached beyond technical provisions of the Constitution, but that is what the Court is supposed to do!   Their second main point was that this decision should have been left to the legislatures of each state, not “dictated” by the Court.  The majority opinion tackled that issue correctly, by saying that when it comes to guaranteeing fundamental rights, claimants should not have to wait for the political process.   This issue goes to the heart of what the role of the Supreme Court should be.  And by the way, the same justices who authored these dissents often support quite radical rulings, vetoing legislative actions, when it serves their political purposes.

The big question now is what’s next.  There will likely be some minor skirmishes around the issue of providing services to same-sex couples – -the “wedding cake” conflicts.  In some arenas there may be some carve-outs; most likely any religious-oriented service or activities will be able to exclude same-sex couples, such as religious marriage halls or officiants.  At the other end of the spectrum are public facilities, which certainly cannot discriminate against gay couples.  In between are the small scale private providers of commercial services, such as cake and flower and photographic services.  Under the law in most states these providers cannot discriminate against any customer, but many states are trying to enact laws that give them that option.

But what’s more important is how this ruling affects our own community.  Will this open the door for further extensions of liberation – helping transgender folks, bullied youth in small towns and rural areas, LGBT refugees from other countries seeking a safe haven here?  Or, will it lead to a complacency amongst the mainstream gay organizations and donors, feeling that the battles have all been won and the troops can take a well-deserved rest?  Time will tell.

The Latest Cases on Access to Divorce and the Bisexual Remarriage

May 13, 2015

There’s a wonderful monthly compilation of LGBT legal developments: Lesbian Gay Law Notes http://www.nyls.edu/impact-center-for-public-interest-law/publications/lesbiangay_law_notes/ – edited by Professor Arthur Leonard.  This month’s issue tells of two recent cases that are illustrative of how the legal issues in our community are evolving.

On the hot topic of being “wedlocked” (being unable to get divorced because your home state doesn’t recognize your out-of-state marriage), the Florida 2nd District Court of Appeal recently reversed a trial court’s refusal to grant a lesbian couple a divorce of their Massachusetts marriage (Brandon-Thomas v. Brandon-Thomas, 2015 Fla. App. LEXIS 6051).  Even though Florida now allows same-sex marriages, this case arose prior to the invalidation of Florida’s DOMA law, and the Court rightly felt compelled to rule on the underlying legal issues.  To their credit, the judges understood that “access to divorce” is a basic right, and the Florida courts could not deny these Florida residence of this fundamental right.   The judges focused on the practical harm caused to the parties by not being allowed to process their divorce in their home state, pointing out that a divorce proceeding doesn’t really involve recognition of a marriage, as an ongoing relationship, but merely allows the couple to formally end their marriage.

If the United States Supreme Court rules favorably on either of the two questions before it (whether states have to allow same-sex couples to marry, and whether they have to honor out-of-state same-sex marriages), this problem will go away.  The good news is that an increasing number of states are realizing that denying access to divorce courts makes no rational or legal sense.  The better news will be when the Supreme Court renders this issue moot.

Once it is moot, we will be able to enjoy a new film in production — called Wedlocked.  It’s described as a comedic farce, telling the story of a lesbian couple unable to get divorced due to the hostile legal environments of many states.  Check out the website of the film in production: http://www.wedlockedthemovie.com

On a more discouraging note, a Kentucky appeals court has ruled that the former lesbian partner of a bio-mom could not challenge the adoption of their child by the bio-mom’s new husband.  The case of WRL v. AH, 2015 Ky. App. LEXIS 52 demonstrates that there are indeed “Bs” in the LGBT community – with some rather nasty results.  Because the non-bio-mom had never obtained legal parentage over their child, and because Kentucky doesn’t honor intentional parentage of same-sex couples, the non-bio-mom had no legal rights.  Thus, when the bio-mom sought to allow her new husband adopt “her” child, the non-bio-mom had no legal basis of challenging the adoption.    We all applaud everyone’s right to exercise the bisexual option, but abandoning one’s former partner and co-parent in this way seems particularly cruel.

Next up – the Supreme Court’s decision on the marriage cases, expected to be issued the last week of June.

Emerging Trends in the New Year

January 11, 2015

Barriers continue to be broken down – and at a quickened pace this year. The most exciting news has come from Florida, where gay and lesbian couples were able to get married after a long and bitter legal struggle. Appeals are still pending, but for now, the clerks began issuing marriage licenses on January 5th, and as many as 1,000 couples tied the knot in the first week. The government officials in Florida have been especially resistant to opening their doors to same-sex couples, filing endless appeals and resisting court orders whenever possible. In the most twisted of turns, many clerks are now refusing to perform marriages for any couples, gay or straight, rather than having to officiate at any “deviant” marriages.

Florida has long been a state of contradictions in the marriage equality campaign. On the one hand there is liberal Miami and gay-friendly Fort Lauderdale, where thousands of gay couples live openly. On the other hand the government agencies and the courts have been stridently hostile to gay parents, gay couples, or any form of equality. But thanks to a dedicated group of lawyers and activists, the situation has finally turned around. Florida was State #36 in the marriage equality battle — and it’s now estimated that 70% of this county’s population live in states that allow same-sex couples to wed. Fort Lauderdale didn’t miss a beat – they have launched a same-sex marriage advertisement campaign with big ads in the New York Times –

We’re still waiting to see if – and when – the United States Supreme Court will take up the dispute. There now is a justification for the high court to take the matter up for adjudication, as there are conflicts between the rulings of the various federal appellate circuits. If the Court doesn’t accept a case within the next few weeks, we’ll have to wait until next year’s cycle of decisions to hear what they have to say on the subject.

The other growing trend is the emergence of Men Having Babies , a dedicated group of gay men who are helping men who hire surrogates and are pushing for a better organized and more community minded surrogacy industry. They recently convened a gathering and expo of resources in San Francisco, and the nearly-200 guys in the audience definitely were part of a movement – the energy in the room was exuberant, a bit overwhelmed with all the information at times, but dynamic in every respect. The topics ranged from medical trends, available options, financial challenges, and ethical issues involving the choice of surrogates, the role of the various players, and the perennial questions of international surrogacy. As more and more men raise kids, the social climate and public acceptance of our families will certainly continue to improve.

So where are the remaining arenas of conflict and trouble? There remain 15 states which are still in the midst of legal challenges, and it will probably take another two-three years for the laws to be worked out in those states. And many non-marital challenges remain, especially for youth, transgender men and women, and other “non-conventional” LGBT folks. But to my mind, the real focus of attention needs to shift to international concerns, to countries where gays and lesbians are still being prosecuted, harassed, and even imprisoned or killed. Finding solutions to these international problems is not easy — as it’s hard for outsiders to intervene, it’s not clear what the impacts of international pressure will be, and it’s open for debate as to whether gays should stay and fight for change in their country, or try to leave and seek refugee or asylum status elsewhere. The first important step is for those of us who have found liberation at home to pay attention to what is happening to our brothers and sisters in less fortunate places – with the hope that solutions will emerge over time.

Supreme Court Decides to Sit Out the Marriage Battle – At least for now!

October 6, 2014

In a move that some commentators had been increasingly predicted, the United States Supreme Court decided to not take any of the appeals from the same-sex marriage rulings. Federal appellate courts in a multiplicity of regions had upheld the broad sweep of trial court decisions overturning the marriage bans, and the Supreme Court has the option of hearing, or not hearing, further appeals. By declining to hear further appeals of these decisions, the appellate court decisions become final. That means, at a minimum, that lesbian and gay couples in Virginia, Indiana, Wisconsin, Oklahoma, Utah, North and South Carolina, West Virginia, Colorado, Kansas and Wyoming will soon be allowed to marry.

There are some legal issues that remain uncertain at this point. One question is how soon will couples be allowed to marry in these states? It may take a few days, or weeks, for the consequences of the decision to get transmitted to the proper authorities – so don’t schedule your wedding quite yet. The bigger unknown is what will happen in states that are included in the appellate court region in which there were positive decisions, but where there wasn’t a decision for that particular state. Some state authorities might just decide that it’s not worth fighting for another ruling, or some federal trial courts might just hurry up and issue decisions in those states – which the state authorities would simply not appeal. Until there is a Supreme Court decision it is always possible that a future court might uphold a ban, and that decision could be upheld on appeal – but this is very unlikely at this point.

Moreover, even if such an unlikely story unfolds, the resulting decision could be taken up by the Supreme Court – but it’s likely that they would not uphold a ban at that point. By then there would have been thousands of marriages in dozens of states, and it’s unlikely that the Supreme Court would go against the tide of history and invalidate so many marriages retroactively.

Most likely, today will be known as the day that same-sex marriage effectively became the law of the land in this country. And that’s a very good thing!

New Edition & New Developments

September 6, 2014

It’s been a busy summer for the legal world of same-sex marriage and divorce. An increasing number of federal courts are tossing out the bans on same-sex marriage, and the federal appellate courts are generally affirming these decisions. In the meantime, the marriages in these litigated states are on hold – with the inevitable problem of what happens to those who got married after the court decisions, and before the courts put the marriages on hold. Most observers believe that the United States Supreme Court will take up the issue of the marriage bans, perhaps quite soon. If that happens there will be a decision by next summer that will settle the issue of the constitutionality of same-sex marriage bans nationwide – and hopefully the outcome will be a positive one.

But the biggest problems still involve those who live in non-recognition states. For the most part, couples the marry in non-recognition states are receiving federal benefits, but not state benefits. And, should they break up prior to the resolution of the legal issues, it’s not clear whether they will have access to a judicial dissolution process. Along the way, these uncertainties make it hard for these couples to plan. It’s not clear whether a pre-marital agreement will be valid, and if so, whether it should be done in the state where they marry or the state in which they live.

One example of this problem is what happened in Florida recently.

Similar problems are arising in Texas – with the Texas Supreme Court poised to make a decision on this issue very soon.

Finally, we have new editions out of both of my books — Making It Legal, and the Legal Guide for Lesbian & Gay Couples. Check them out!



Surveying the Latest News on Same-Sex Divorce

April 25, 2014

The recent Texas Court of Appeals ruling is a setback for the San Antonio lesbian couple trying to get divorced.  As we’ve seen throughout the country, many couples got married even though they lived in states that didn’t recognize their marriage, not realizing the problems they would encounter if their relationship unraveled.  In most such situations, they can’t get divorced in their home state, since many state courts have taken the position that granting a divorce is form of recognition of the marriage.  However, they can’t get divorced in the states where they got married, since most states require you to be a resident in that state in order to get a divorce – to prevent spouses from escaping the divorce laws of their home state.  These couples are, in effect, “wed-locked,”

Several states have modified their marriage laws to allow for “non-domicile divorces,” which means you can get divorced there even if you aren’t a state resident, if you married in that state and live in a state that won’t grant you a divorce.  California is one of the states that now provides this option, both for state-registered domestic partners and married spouses.   But that law doesn’t help most such couples – and even if some of them could go to the state where they married to get divorced, that can create additional expense and legal problems, especially if they have children.

The San Antonio story is particularly painful, as one of the women is not considered a legal parent of the couple’s child under some readings of the law.  If their marriage is not recognized, she may not be honored as the child’s second legal parent, because she didn’t do a second-parent adoption of their child.

The moral of this story is clear: if you live in a non-recognition state and want to get married, do so in a state that allows you to get divorced even if you don’t live in that state.  Of course you should hope that your marriage lasts until “death do you part,” but that is a rarity these days.  Eventually we hope (and believe) that every state will recognize same-sex marriages, for all purposes, including the right to get a divorce.  But until then, don’t put yourself at risk of being wedlocked. And if you are raising children, don’t count on your marriage to protect you as a legal parent — insist on getting a second-parent adoption.

The last thing you want to be is a test case, even an “interesting” test case.  Protect yourself by being realistic about the lingering legal barriers to full marriage equality and plan accordingly!

New Challenges in Texas gay divorce case

April 25, 2014

New Challenges in Texas gay divorce case

What Really is “Fair” in PreNup Negotiations?

February 13, 2014

I’ve been drafting a fair number of premarital agreements in the past few months, now that same-sex couples can marry in California and, most significantly, now that gay and lesbian married couples receive federal benefits.  Negotiating these agreements is rarely simple, as the discussions raise deep issues about the underlying structure of the relationship – and each party’s notion of what is fair from a financial standpoint.  As is legally required, the discussion always begins with a review of what marital law would impose on the couple in the absence of an agreement, and this is usually rather surprising news to most couples.  For those that have already been together for some time, they discover that assets acquired so far are not merged upon marriage – they remain separate property under California law.   For many couples this information forces them to re-evaluate how they have organized their financial lives so far – and oftentimes one of the partners feels that there should be some retroactive sharing of what has been accumulated so far.  These discussions frequently devolve into painful explorations of who was successful and who wasn’t, and what sort of wise (or unwise) financial decisions have been made.

The next phase of the conversation focuses on what the law would do about post-marital assets – which are generally shared equally regardless of who earns them.  Some couples are quite comfortable with this kind of forced sharing, whereas others don’t feel it’s fair to adopt these rules.  This is especially true where each of them has clearly made choices independent of the relationship – choices about education, career, or ambition – such that sharing the benefits doesn’t feel right.  For other couples there are external factors, such as a prospective inheritance or the need to care for an elderly parent, which they feel should be taken into consideration.  Oftentimes the higher earner feels it should suffice that he or she is supporting his or her partner while they are living together, but that splitting savings is excessive.  Interestingly, the lower earner often is uncomfortable even asking for a sharing of assets, either because he or she has never felt that a partner would be taking care of him or her, or perhaps because he or she fears that asking for this sort of sharing will trigger a hostile reaction from his or her spouse.

As difficult as these issues are to resolve, the hardest nut to crack involves spousal support.  The law in most states says that if one spouse is earning less than the other one at the time of a dissolution, the higher earner can be required to pay spousal support for some period of time, often about half the duration of the marriage.  There are various theories behind this concept: for some it’s a way to help the lower earner “move on” in life, for others it reflects the belief that the higher earner has benefited from the love and support of a spouse during the marriage.  But to many lesbians and gay men, the notion of supporting an ex-lover seems absurd – they should be grateful for the support they received during the marriage!

What’s interesting to me is to see how differently couples handle these challenging topics.  I’ve observed some couples be entirely practical, and reach compromises quickly that address both partner’s concerns and reach a reasonable middle path.  For other couples – even when there’s not a huge amount of money at stake – the feelings are tender and the rifts seem impossible to heal.  One of them might feel offended that the other expects to be supported, while sometimes the lower earner feels unduly blamed for their difficult financial situation.  It’s easier to resolve the issues when one partner is earning less because he or she is taking care of the kids, or if one partner has sufficient income and assets to easily support both partners.  It gets more difficult if the “richer” one doesn’t feel very secure financially, or where the lower earner has made voluntary choices that resulted in the financial difficulties.

The good news is that most of my clients find their way through these thickets, and reach an agreement and go on to celebrate their marriage. Others, however, decide that marriage just isn’t the right legal framework for them, at least not yet, and they are able to stay together as a couple and defer the wedding, perhaps forever.  Unfortunately, there are couples whose relationship doesn’t survive the prenup negotiation process.  For them, asking these hard questions reveals deep differences in feelings and goals, and forces them to reconsider their plans, resulting in a breakup of the relationship.  It’s painful when this happens, though I’m convinced that this was an inevitable outcome, sooner or later.

And what have I learned about how to approach these questions most effectively?  The first place to start is to be honest about one’s own needs and feelings.  Do you regret the choices you have made so far, and do you feel you have the ability to turn your life in a new direction?  Are you disappointed in what you received, either positive or negative, from your parents and your childhood?  What are your long term financial needs, and how do they differ from that of your partner?  The next step is to be truly open to understanding your partner’s attitudes about money and financial security, even where the feelings might be threatening to you.  As seasoned negotiators always remind us, you can’t build a bridge until you know where the other side of the river is located.  And then, in the end, the two of you need to find a way to build an arrangement that is supportive of both partner’s goals and needs, and brings you closer together as you form your legal relationship.  Forging your financial partnership – or agreeing to maintain separate financial identities even while married – is an important dimension to creating intimacy.  Not as much fun as making love, for sure, but in some ways equally important when it comes to nurturing your long term relationship.

The Latest News from Utah

January 11, 2014

Given its early history advocating for polygamous marriage – something that had to be given up as a condition for statehood – Utah’s fervent rejection of marriage equality for lesbian and gay couples is particularly ironic.  In the latest development, a brave Federal judge has ruled that Utah’s ban on same-sex marriage is unconstitutional.  To the surprise of most of us, neither the judge nor the 10th Circuit Court of Appeal stayed the implementation of this ruling, and so approximately 1,000 same-sex couples married in Utah within a few days of the Court’s decision.  Then, just recently, the United States Supreme Court issued a ruling, preventing any further marriages from taking place.

The question now is what happens to the couples that got married before the Supreme Court’s ruling took effect.  Contrary to the opinion of most legal analysts, the Utah state officials have stated that the marriages are not valid and will not be recognized.  This does not seem to be the right decision: the Supreme Court has not overruled the trial court’s decision, and so for now, the marriages were validly entered into and should be recognized.  Most likely there will be challenges to the state official’s position – especially if there is a break-up or death in one of the married couple’s lives before the final court ruling is issued.

Meanwhile, the federal government has announced that it will do the right thing and recognize these marriages for federal purposes. As a result of this ruling, the couples married in Utah will receive immigration and tax benefits, as well as Social Security and other federal program benefits.   This decision is parallel to the recent ruling by most federal agencies that they will follow the “state of celebration” rules, and extend benefits to couples who are validly married, even if they reside in non-recognition states.

The Utah situation is actually a new wrinkle in this fabric of legal complexity.  The federal recognition of valid marriages stands on solid ground.  For example, if a Pennsylvania couple travels to New York city and gets married there, there is no question as to the validity of the marriage – and so the feds should recognize it.  Here, the issue is not just one of Utah’s refusal to recognize the marriages – they may one day be found to be retroactively invalid, depending on how the appeals courts rule on the merits of the appeal.  Still, we think the federal agencies are doing the right thing, both legally and politically.  It’s important that the federal agencies send a clear message to state administrators and to the married couples, that the federal government will recognize their marriages as valid.  

We applaud the advocates in Utah who are pursuing this worthy challenge, and we celebrate the couples who are willing to endure the legal complexity to move the marriage equality campaign forward. 


What A Year It’s Been!

December 3, 2013

I’ve just finished the revision to Nolo’s Legal Guide for Lesbian & Gay Couples, and I did the revision for Making It Legal’s 3rd Edition just a few weeks ago. It’s been a joy summarizing the amazing developments that have occurred in the past year.  The legal lives of same-sex couples are still fairly complicated, but in a much better way.

Marriage: Wow!  Marriage is now available to lesbian and gay couples in Hawaii, Illinois, New Jersey, Minnesota, California and soon, in Illinois.  Each of these states have endured hard fought battles, in the courts and the legislatures, and in the public arenas, and the political efforts by the marriage equality advocates have been truly impressive.  Minnesota is especially significant – not just because it’s my home state – as that is where the first legal action to allow a gay couple to marry was launched, more than 40 years ago.  And Hawaii is equally important, as that is where the current campaign for marriage equality was launched, more than 15 years ago.   As for California, it’s been a roller coaster ride for the past ten years, and it’s great to have the access to marriage be finally resolved, hopefully for good this time!

Federal Benefits: The Supreme Court’s invalidation of Section 3 of DOMA is perhaps the most important step in this long journey, for both symbolic and practical reasons.  As the nation’s highest court, its opinions are closely followed, and the analysis in the Windsor case really was wonderful to read.   It’s clear that the opinion has already had a significant impact on how legislators and politicians approach this issue, and it sends a strong signal of the political direction this country is headed towards.   On the practical level, it immediately opens up the plethora of federal benefits to same-sex married couples – in many instances, even for those living in non-recognition states.  The most dramatic of these benefits is the immigration privileges extended to married spouses, and it’s been a joy to see the smiling faces of new green-card holders everywhere.  Federal tax and Social Security benefits now apply to married same-sex couples, as well as benefits for spouses of federal employees.

Remaining Issues: the biggest areas of legal confusion involve married couples living in non-recognition states, and the status of marriage-equivalent civil union and domestic partnership registrants.  Some federal laws only apply to couples living in recognition states (the state of residence rule) while others apply to all couples, wherever they reside (the state of celebration rule).  It will take some time for the multitude of federal agencies to work out their rules for same-sex couples, but if you live in a non-recognition state you can not assume you will obtain federal benefits.  As for the marriage-equivalent registrations, most federal agencies will not treat these couples as married, and so spousal benefits won’t extend to those couples.  In many instances (such as tax and immigration purposes) a couple can get married and get the benefits, and in many states the partnership is “upgraded” to marriage by statute.

It will take some time for all the legal complexities to be worked out, and the problems in non-recognition states will be especially difficult for some time to come.  But there is much to celebrate this year!





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