Regional Movements Towards Marriage Equality

I recently spent a week lecturing and meeting with lawyers and financial planners in Boston, New York, Baltimore, Philadelphia, and Washington D.C., and it is evident that the evolving legal protections for same-sex couples are especially complicated in these multi-state regions.  In Massachusetts, the key issue is whether or not all out-of-state partnerships and civil unions will be fully recognized, as equivalent to legally-recognized marriages.  In New York, out-of-state marriages are being recognized in most instances, though in some arenas (probate and tax regulation, most notably) there is no clear legal guidance, and it is remains unclear if civil unions or domestic partnerships will be recognized as marriage-equivalents.

An even more dynamic landscape is emerging in the multi-state region of Maryland, D.C., Virginia, Delaware and New Jersey.   The District of Columbia grants domestic partnership status and recognizes out-of-state marriages for “state-law” purposes, but cannot offer federal recognition at this time — and may or may not authorize marriages to take place there.  Not surprisingly, there are couples who work in D.C., live in Virginia, and own property in Maryland — and it is going to take many years for the precise legal rules to be developed.  Maryland’s activists are hoping that their Attorney General will issue a ruling extending recognition to out-of-state marriages and partnerships, but it remains uncertain when, or even if this will happen.

Couples in these regions need to be especially careful in making decisions about marrying or registering, and when making decisions about parentage, property acquisition, and financial obligations — and they need to make a special effort to seek out legal and tax professionals who have a solid understanding of these legal complexities!

Lessons learned from Lavender Law

I’m attending this year’s annual LGBT lawyers conference in New York this week, and I’m learning a lot from the sessions.  The most valuable feature of the conference was a day long seminar on family law issues, and not surprisingly,  the current family law landscape is indeed complicated.

One of the most important topics is the issue of portability of parentage rights.  Same-sex couples can achieve legal parentage in several ways: through the presumptions of parentage arising out of the marriage or domestic partnership status of the parents (in recognition states), though a parentage decree from a court (often before the child is even born), or through a conventional step-parent or second-parent adoption by the non-biological or non-legal parent.  While the adoption process is the most complicated and often the most expensive approach, many lawyers believe it is the best route to go, in the long run.  Why is that?  Because if the family (or the biological parent) later moves to a non-recognition state and the couple breaks up, the second parent will be in the best legal position to retain parentage.  It also is the best way to assure that the parent-child relationship will be recognized by the federal government.

This is one area where no one should do it alone.  Consult with a local lawyer who is familiar with same-sex parenting law, and be sure to inquire about the long-term consequences of the different legal options.  Better to spend a bit more money and time to do it right, to avoid any conflicts or heartache later on.

Possible Changes in Marriage Equality Options

The coming six months could lead to dramatic reversals — for better or worse — in the realm of marriage equality and domestic partnership laws in Maine, Washington State, Washington D.C. and California.

In Maine, the recently-opened marriage door could slam shut again.  A referendum on the legislative enactment of marriage is on the November ballot, and marriages are on hold until then.  If the voters reject the legislation, Maine residents will revert to marriage-equivalent civil unions, and not full marriage equality.  Similar battles are being fought now in Washington State, where the referendum on the recently-enacted domestic partnership law is likely to be on the ballot in November as well.  There are challenges to the signature count for the referendum, but unless it is thrown out the November vote will be decisive.  As with Maine, if the voters reject the new law Washington residents will still have marriage-equivalent domestic partnership as an option.  In Washington, D.C., there is a push to legalize full marriage, not just marriage-equivalent registration, but Congress has a say over D.C.’s law so this will be a steep mountain to climb.

In California, an initiative to repeal the anti-marriage Proposition 8 might be on the November 2010 ballot, or maybe not until 2012.  Meanwhile, an independent group (represented by Ted Olson & David Boies) has filed a federal lawsuit to overturn Proposition 8 on federal constitutional groups.  A full scale trial on the issues is scheduled for January, and it could well become the “Scopes Trial” of the marriage equality movement.