Good News from the Courts

In a series of personnel decisions involving court employees, two senior federal court judges in California have recently ruled that same-sex spouses of employees are entitled to the same insurance benefits as opposite-sex spouses. While not binding on any other institutions or courts, these rulings are likely to be persuasive regarding future claims by similar couples, and could indicate a welcome attitude within the federal court system. Judge Reinhardt and Judge Kozinski both found the federal denial of benefits to same-sex couples to be unjustified, and stated that the Defense of Marriage Act could not be used to defend such practices. The 9th Circuit Court of Appeals has long had a liberal reputation, but these are influential judges whose opinions will be respected by other judges.

In New York, the Court of Appeals affirmed the recognition of an out-of-state same-sex marriage by a county agency, and a state agency. And, while the court did not go so far as to give blanket recognition of the relationship for all legal purposes, their affirmation of these particular rulings is meaningful. New York State has been a roller coaster with regard to legalization of same-sex marriage, and the growing trend towards recognition of out-of-state marriages is an important factor in the politics of marriage equality.

Marriage-Equivalent: Yes; Marriage: Not Yet

The election results in Maine and Washington state send a discouraging message: marriage-equivalent domestic partnership registration appears reliably sound, but full and equal marriage is not yet within reach in many jurisdictions. In both instances the state legislatures had enacted favorable laws, but they were subject to a “popular” vote because of an initiative campaign. On election day domestic partnership was affirmed in Washington while marriage was defeated in Maine. While the political dynamics of each state differs, the trend seems pretty clear to me. Moreover, this sort of compromise is consistent with what is happening in other states, including California.

Maine still has a “marriage-light” domestic partnership registration that offers some, but not all of the benefits of marriage, but it is unclear if Maine will recognize civil unions or marriages entered into in other states. Similar non-recognition problems are arising in many of the marriage-equivalent states, although California recently enacted legislation that provides full recognition for our-of-state marriages.

The main challenge for couples living in these states is figuring out whether to sign up for the marriage-equivalent (in Washington) or marriage-light (in Maine) registration , get married out of state, or rely solely on private contracts and estate planning documents — or all of the above. Moreover, many of the tax and benefits problems that plague so many of the marriage-equivalent situations apply to couples living in Maine and Washington. Making It Legal provides a useful guide through this difficult decision-making process, and we urge couples to carry on despite the disappointing political news, to make sure that their own personal affairs are still in good legal order.