San Francisco’s Proposition 8 Trial

The “Scopes” trial of the gay marriage movement is underway in federal court in San Francisco, and it is turning out to be a fascinating educational experience. The legal issue is a narrow one — can California voters take away constitutional marriage rights by a mere majority of the voters, after the state Supreme Court has already deemed marriage equality to be a fundamental right. Sadly, the California Supreme Court said yes, but now a federal court is being asked the same question — based upon the U.S. constitution. Given the invocation of the federal constitution, this case has national implications — and may well end up at the U.S. Supreme Court.

Most interesting, unlike many of the other gay marriage cases, the judge in this case is not just looking to written legal briefs to make his decision. Instead, he wants “evidence” for each of the key claims in the case. Thus, the opponents of Proposition 8 have organized a stellar group of academics and advocates who have testified about the immutability of homosexuality, the political discrimination wrought by the marriage bans, and the practical deficiencies of domestic partnership equivalents. Ironically, the case is being fought by a newly-formed advocacy group and a fairly mainstream, almost conservative, group of attorneys. But they are savvy and well-funded, and have mounted an excellent panel of witnesses.

Testimony will be concluded by February 1, and then there will be a two week break, and then the lawyers will return to court to present their closing arguments. A ruling from the judge is not expected for several months — and surely it will be appealed. The first level of appeal is to the Ninth Circuit, and that appeal will take a year or so. Given these lengthy time spans, the long term results are hard to predict — there’s a decent chance that Proposition 8 will be repealed by the voters in 2012, thus rendering any court decision moot, at least in California.

Same-sex marriage in California has been on a see-saw of judicial and political reversals since 2004, and while marriage-equivalent domestic partnership remains a viable practical alternative for couples wanting the security of state-based marital rights, the marriage door may remain closed for another two years or longer.

Your New Year’s Resolution: Organize Your Legal Affairs

The new year has brought us disappointing news from New York and New Jersey: in both states the legislatures have defeated the attempts to legalize same-sex marriage. As discouraging as these developments are, they should not distract any of us from a resolution that is as important as fighting for one’s right to marriage equality: the need to take care of one’s own legal affairs, with or without marriage. Bear in mind that same-sex couples have been forming families and living together happily without marriage for centuries, and will continue to do so even while the marriage equality battle moves forward.

Ironic as it may seem, two of the most important tasks for any same-sex couple are planning for your inevitable death or, for many couples, a dissolution. Rest assured, making these plans will not hasten either event, and when it comes to dissolution, careful legal and financial planning can actually help reduce the risk of its occurring. Why is this? It is because thoughtful planning around difficult financial issues can bring the two of you closer together, and can help you spot and resolve hard legal issues that could otherwise create resentment and conflict.

Regarding disability and death, the three key documents to have in place are a will or trust, a power of attorney for financial affairs, and a medical directive. More information about all of these legal documents can be found in Nolo’s Legal Guide for Lesbian & Gay Couples. As to dissolution, the important documents (for an unmarried or unregistered couple) are a cohabitation agreement and (if you own property) a co-ownership agreement, spelling out who owes what and who will get what in the event of a dissolution. For couples who are married or in a marriage-equivalent registration, your task is to learn what it means to be covered by marital law, and decide whether you want to sign a pre- or post-marital agreement to modify those rules. If you are co-parenting child, you will want to be sure that you are both legal parents, if that is possible in your state.

Working out these agreements will force you to think about your savings plan, your retirement safety net, and your housing situation, and it will motivate you to take stock of your household finances and budget. And, taking on these tasks will help you develop your goals for creating a solid legal and financial foundation for your future as a couple. While your agreements will also cover the possibility of a separation, chances are your discussions will motivate you to make plans and take the steps necessary to implement those plans, for your shared benefit.