December 23, 2018

It’s no secret that the current administration is lacking in its display of allyship to the LGBT community. For example, the LGBT rights page was taken down from the White House website within hours of inauguration, and the President is currently considering the appointment of judicial nominee Jeff Mateer, known for being openly anti-LGBT.

Though the Gay Family Law Center is concerned about these worrying trends, there is some good news. The fact that the Obergefell v Hodges, the supreme court ruling that legalized gay marriage nationwide, was passed in 2015, means that the LGBT community stands on a much stronger legal foundation than prior to this landmark case.

There are quite a few reasons why the timing of this ruling was important given our current political situation. In this post, we will briefly explore two of those reasons.

The strength of supreme court law

In the United States, there are many ways in which laws are made, and the strength of each law varies accordingly.

The strongest type of law is the Constitution, which can only be changed through constitutional amendment. Amendments are notoriously difficult to achieve, as the process was designed to safeguard the constitution. To even propose an amendment, ⅔ of both houses of congress or ⅔ of state legislatures must put forth the proposal. To ratify one is even harder. Understandably, this has not happened often, with only 27 amendments ratified in the history of the U.S.

However, there are many ways in which the constitution can be interpreted. This is where the Supreme Court of the United States (SCOTUS) plays an important role. To appear before the Supreme Court, a case must make its way up through the entire court system without resolution. At that point, it is the role of SCOTUS to settle disputes as the “guardian and interpreter of the Constitution.” This results in the strongest type of legislation, as the Supreme Court is the “final arbiter of the law.”

The decisions SCOTUS makes have nationwide ramifications and are virtually unchangeable. Their rulings cannot even be overturned by the President or by congress. The court may, however, overturn its own decision in a new ruling later on, but this is uncommon.

Since the right to gay marriage was determined in this way, the LGBT community may rest at ease knowing their marriage rights are here to stay, regardless of the ideologies of current political leadership.

The support of the public

Public support of gay marriage has been steadily increasing since the Gallup poll began measuring public sentiment on the issue in 1997, though there have been a few “road bumps” along the way.

In 2015, the sheer magnitude of Obergefell v Hodges meant that many folks who had not yet openly been allies of the LGBT community had to “pick a side,” so to speak. Fortunately, many more picked the side of support, and that trend continues to this day. For example, in 2013, 54% of the population reported that they are in favor of legal gay marriage, and that number grew to 64% in 2017.

When asked the question “Do you think gay or lesbian relations between consenting adults should be legal or illegal?” Gallup respondents show even higher levels of allyship, with 72% stating it “should be legal” when last measured in 2017.

This certainly doesn’t mean that individuals never change their minds. However, based on the most recent data, it is clear that being in favor of LGBT rights is becoming more deeply embedded in American values. This has also been evident in the continually growing participation of LGBT folks, as well as their allies, in pride parades and other events.

Conclusion

Though it cannot be denied that 2017 has held challenges for the LGBT community, we can find solace in the fact that due in part to the 2015 Obergefell v Hodges ruling, LGBT rights continue to be protected. The legal strength of this ruling, as well as the public support it helped to garner, have proven to be strong foundations in the continued evolution of legislation that impacts LGBT folks.

Are you considering hiring an attorney for your family law needs? Consider the Gay Family Law Center, a firm dedicated to serving the LGBT community in California. Contact us to learn more.

Photo by Anna Sullivan on Unsplash

December 9, 2018

It has been more than two years since the landmark ruling of Obergefell v Hodges, which legalized gay marriage nationwide. In this post, we’ll explore two examples of how that ruling has influenced recently passed California legislation. At the Gay Family Law Center, we are pleased to see progress in recent local laws, and we hope to continue to see this type of support for the LGBT community.

SB 179 Gender Recognition Act

One of the key arguments made during Obergefell v Hodges was the need for LGBT couples to have official recognition of their relationship, just like heterosexual couples. This was framed as a right that those within the LGBT community, indeed all individuals, should have access to in the United States.

Though having long-term relationships, or being in a civil union or a domestic partnership was better than nothing, it was not the same as being legally married. The act of marriage itself, and all the nuanced rights and responsibilities that marriage entails, was critical for stepping closer to true equality.

As Justice Kennedy wrote when he penned the majority decision in Obergefell v Hodges, “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.”

A similar argument was made this year in California with the Senate Bill 179 Gender Recognition Act. Recently passed by California legislature and signed into law by Governor Brown, this will “make California the first state in the nation to legally recognize nonbinary people by creating a third, nonbinary gender marker on California birth certificates, drivers’ licenses, identity cards, and gender change court orders in order to enable intersex, transgender, and nonbinary people to obtain state-issued identification documents that accurately reflect their gender.” This is critical, because being forced to carry documentation that does not match your visible gender can result in harassment, violence, denial of services, and other difficulties for transgender or gender nonbinary individuals.

Like the argument mentioned above for Obergefell v Hodges, this bill hinges on the philosophy that officially allowing individuals to be recognized by their correct gender is an important matter of civil rights. Being colloquially recognized by friends, family and colleagues is good, but not good enough.

The Gender Recognition Act also follows in the footsteps of legislation that passed recently in Canada, which allows a gender neutral option on passports. In the United States, it is the first of its kind, and we hope to see more laws like it in the future.

SB 219: Seniors Long Term Care Bill of Rights

Another important aspect in Obergefell v Hodges that has continued to influence policy is the consideration of discrimination.

As of today there is no federal law that bans discrimination based on sexual orientation. Though the Supreme Court Obergefell v Hodges ruling on gay marriage did not explicitly cite anti-discrimination as their reason for ruling, it is clear that the ruling has indeed impacted anti-discrimination policy regardless.

For states like California, the ruling strengthened an already robust tradition of anti-discrimination legislation. This year, another layer has been added to that legacy, with the passing of Senate Bill 219: Seniors Long Term Care Bill of Rights.

In a nutshell, this law means that seniors in long-term care facilities may not be discriminated against based on their sexual orientation, gender identity, or HIV status. They must still receive the same level of care as everyone else in the facility.

As reported by Equality California, “less than a quarter of LGBT older adult respondents said they were able to be open about their sexual orientation or gender identity with staff at long-term care facilities.” We hope this law will begin to improve those numbers.

The Gay Family Law Center continues to receive an A+ rating from the Better Business Bureau for providing high-quality, caring service to our community. Though we serve the entire LGBT community, we also offer specific services for seniors such as LGBT wills and trusts, as well as overall estate planning.

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May 30, 2018

Photo by Matt Popovich

In 2015, the landmark case Obergefell v Hodges legalized gay marriage nationwide. At first glance, the concept of marriage equality seems remarkably simple. Upon closer inspection, however, it is clear that this transition involves highly complex networks of laws related to marriage at both the state and the federal level. In this post, we’ll take a quick look at a few examples of how the legalization of gay marriage has affected LGBT family law.

Transition from domestic partnership and civil union

Before gay marriage was legalized nationwide, LGBT couples faced a patchwork of constantly changing legislation that dictated their limited options to legalize their relationship. Some states had options such as domestic partnerships or civil unions. However, unlike marriage, these relationships did not hold federal rights, nor were they guaranteed to be recognized in other states or internationally. Some states, like California, had already legalized gay marriage, and also retained domestic partnerships. Still others had virtually no relationship rights for same-sex couples.

After Obergefell v Hodges, everything changed. A handful of states, including Washington and Connecticut, opted to automatically transfer civil unions and domestic partnerships into marriages in most cases. In California, it was a different story. Instead of an automatic transfer, couples could decide for themselves whether they wished to remain domestic partners, or become married, or both. While most couples today choose marriage, as it comes with the strongest legal rights and protections, some still opt for domestic partnership. A key part of the reasoning for this is the fact that marriage licenses are public, while domestic partnerships are not. Therefore, a couple may determine that for safety or perhaps a family’s religious reasons, they wish the status of their relationship to be private.

Impact on parental rights

While LGBT couples in California had enjoyed relatively strong parental rights, the same could not be said in many other states. While those rights are still not completely set in stone, Obergefell v Hodges certainly helped strengthen LGBT families’ rights in adoption and surrogacy, as well as during custody and visitation disputes. For example, earlier this year the U.S. Supreme court confirmed that a custody dispute for a lesbian couple with children must be treated in the same manner as a heterosexual couple. This emphasized that discrimination against married LGBT couples will not be tolerated.

Impact on health care rights

In the United States, certain health care benefits can only be gained if a couple marries. After Obergefell vs Hodges, those rights are now available to LGBT couples. This is true for federal rights (such as veterans benefits), state rights (such as state-funded health care) and for health insurance provided through employers. When it comes to transgender individuals, however, health care rights are still undetermined, and the current administration has demonstrated potential intent to uplift “religious freedom” rights, which often directly contradict LGBT rights. For example, in January of this year, a new department, called the “Conscience and Religious Freedom Division” was created in the Department of Health and Human Services.

In total, Obergefell v Hodges has had an overwhelmingly positive impact on LGBT family law. Yet like with any progress, some pushback is to be expected. Our team of LGBT family law attorneys are proud to have served the local Los Angeles gay community throughout these legal changes. Do you think you may benefit from an attorney with our specialized expertise? Give us a call at (855) LAW-LGBT to schedule a free, no-commitment consultation to discover if we are the right fit for your legal needs.

Photo by Jasmin Sessler on Unsplash

July 26, 2017

The 2015 ruling of Obergefell v Hodges, which granted the right to marry for LGBT couples, may have seemed to appear suddenly. In fact, it was the culmination of a decades-long battle with far-reaching effects. Let’s take a closer look at what led to this pivotal moment in the LGBT rights movement.

Building the legal foundation

The emergence of marriage equality as a specific policy goal can be traced back to the same event that sparked a nationwide conversation about LGBT rights—the 1969 Stonewall Riots. The riots occurred when the Stonewall, a gay bar in NYC, was raided by police. Tired of being harassed, the bar patrons fought back, resulting in the spark that would become the LGBT rights movement.

Inspired by this bravery, during the 1970s, several couples in various states petitioned for the right to marry, but their cases were tossed aside by judges, sometimes with hateful, bigoted language. It was too early for gay marriage to be taken seriously.

Flash forward to 1983, when Evan Wolfson, a student at Harvard Law School, wrote his thesis on marriage equality. It was the first time that a legal argument had been fully articulated, and this document would serve as a touchstone for future legal work.

A decade later, two women petitioned for the right to marry in Hawaii, and the state’s Supreme Court surprised the country by ruling that denying same-sex couples the right to marry was unconstitutional. The victory was short-lived, however, and the LGBT community received vicious backlash, resulting in the ruling being reversed by a state constitutional amendment. There was also backlash at the federal level, culminating in the passage of the “Defense of Marriage Act” (DOMA), passed by the legislature in 1996. DOMA legally defined marriage as between a man and a woman, creating a formidable legal barrier for marriage equality.

But LGBT rights activists pushed back. They focused their legal argument on the unconstitutionality of being denied the rights (and responsibilities) that marriages provide. There are more than 1,100 such rights, such as medical rights (such as being able to determine how your spouse is treated if they are unable to make medical decisions), employment benefits (such as the ability to be a recipient of family health insurance), tax benefits, and more.

As this legal argument gained strength, states began creating another option: civil unions and domestic partnerships, perhaps inspired by the creation of similar unions in other countries, such as in France in 1999. Though these types of legal relationships provided some of the rights and responsibilities of marriage, they functioned only at an individual state level. This created barriers and complications if couples wanted to live elsewhere, and also failed to provide important federal rights. Likewise, state-level legislation gave little confidence in long-term legal stability, given the back and forth of LGBT rights laws in many states, including California. Most importantly, they hinted of the “separate but equal” sentiment that propped up the segregation era preceding the Civil Rights Movement, rather than providing true equality.

Advocates instead began to focus on how to achieve strong and long-lasting law at the national level that could not be overturned.

Enacting an educational campaign

When developing the marriage equality strategy, organizers looked to techniques used during the Civil Rights Movement. After all, though each movement was born in drastically different circumstances, some of the broad-reaching goals could be considered parallel. Both have fought for the cultural, societal, and political equality of groups of people that were traditionally treated as less than equals, or even as less than human. And so, marriage equality organizers began investing in a campaign that, like the Civil Rights Movement, would educate the public on the moral necessity of LGBT rights, and the importance of cementing those rights through law.

The educational component also functioned to counteract the fear tactics that anti-gay groups were using, and instead appeal to the public’s ethics by framing the issue as one of equality.

Garnering support

By the early 2000s, it was clear that distinct leadership was necessary and “Freedom to Marry,” an organization backed by Evan Wolfson, was formed.

Wolfson and others strategized a campaign that would work initially with the states. They reasoned that by slowly building up state-level support, they would eventually reach a tipping point at which it would be clear that the majority of Americans were in support of same-sex marriage. Then, they would be positioned to successfully push for federal legislation, ideally as a Supreme Court ruling, which would be legally strongest.

Two years after the formation of Freedom to Marry, organizers celebrated when Massachusetts was the first state “won” in 2004, by a ruling of the State Supreme Court. At that time, both presidential candidates (George W. Bush and John Kerry) were opposed to gay marriage, as well as then-senator Barack Obama, who cited religious reasons. Clearly, this was only the first small victory in a long-term battle.

Indeed, the victory faced extreme lashback. Across the country, other states began enacting discriminatory laws preventing gay marriage legislation. State constitutional amendments with language echoing the “Defense of Marriage Act” was popular, though other legal methods were also used.

However, it appeared that those states were to be on the wrong side of history. Around the world, the tide had begun to turn in favor of LGBT marriage rights. The Netherlands had led the international community by legalizing same-sex marriage in 2001, followed by Belgium in 2003. Much closer to home, Canada did the same in 2004, followed by Spain and South Africa in 2005 and 2006, respectively.

Changing hearts and minds

2004-2007 saw fierce political battles being waged throughout the country, with California being a case in point, as we discuss in another blog post.

Both the public and lawmakers appeared divided, so campaign organizers doubled down in their efforts. In 2008, a second state, Connecticut, was won. By 2009, the movement had begun to ‘snowball,’ after a coordinated effort on many fronts. Vermont, Iowa, Maine, New Hampshire, and Washington DC all joined the growing list of states that had legalized gay marriage.

Public sentiment began to shift as well. This was characterized by newly-elected President Obama’s publicly evolving beliefs on the matter. Having initially been a supporter of civil unions, he openly declared his support for full marriage equality in 2012, stating: “I hesitated on gay marriage because I thought that civil unions would be sufficient…but I have to tell you that over the course of several years as I talked to friends and family and neighbors… [and] at a certain point I just concluded that for me personally, it is important for me to go ahead and affirm that I think same sex couples should be able to get married.”

President Obama’s evolution, in a way, gave permission for other Americans to have similar shifts in opinion.

Understanding this, LGBT marriage organizers shifted the focus of their messaging from one that demanded rights and benefits, to one that focused on something everyone can relate to: love. This pivoted the issue from a political one to a personal one, which would be more effective at changing hearts and minds.

The campaign worked. 2012 saw marriage equality won in Minnesota, Maine, Washington, and Maryland. Progress was being made at the national level as well. The constitutionality of the Defense of Marriage Act had been called into question, and in 2013, the Supreme Court of the United States struck it down. However, they refrained from ruling on whether gay marriage should be legal or not, instead declaring that it should be handled at the state level.

Meanwhile, organizers had been putting pressure on lawmakers, especially Democrats, to become allies, and by 2014 it was on the official Democratic national agenda.

A particularly promising sign that the scales were tipping in favor of LGBT rights was the reduction in lashback. In fact, a study out of UCLA reported, “legal recognition of marriage for same-sex couples has been followed by more rapid increases in public support.”

This perhaps indicated a shift in the “Overton Window,” a political science term for what the public deems acceptable. The Gallup poll has measured Americans’ support of same-sex marriage since 1997, and the changes in sentiment have been dramatic. In 1997, 68% of Americans stated that same-sex marriage “should not be valid,” while 27% said it should. By 2014, about 56% were in support.

The ‘scale’ of public sentiment was reaching a critical point, and it was nearly time for the next big step.

The final stretch

State bans on gay marriage were now being challenged around the country, based on the same legal foundation that had successfully overturned DOMA. As these cases made their way up in the court system, they eventually reached the appellate courts, one step down from the supreme court. Four circuit court of appeals had ruled that marriage discrimination was illegal. One, however, the 6th circuit (including Kentucky, Michigan, Ohio, and Tennessee), upheld marriage discrimination. With circuit courts in conflict, marriage equality could no longer be treated as a state-level issue: it was time for the Supreme Court to make a national ruling.

The case would be named Obergefell v Hodges after the heartbreaking case of James Obergefell and John Arthur. After a decades-long relationship, the two had been married in Maryland. But upon returning home to Ohio, they realized that when John passed away, as was likely to occur soon due to John’s ongoing battle with a terminal illness, their home state of Ohio wouldn’t recognize James as the spouse. They brought their case to the courts, and James Obergefell persevered to secure equal rights and dignity, even after his husband passed away. It turns out, his case would be one of many that fell under the 6th circuit court of appeals.

So in 2015, Obergefell v Hodges would become much more than one couple’s battle. The Supreme Court would hear arguments from the combined cases of the 6th circuit, using Obergefell v Hodges as an umbrella name that would encompass all cases.

This was it. The moment of truth had arrived.

Organizers called on all of their allies to demonstrate their support, and the country waited with bated breath to hear the outcome. After extensive arguments made by both sides, on June 26, 2015, the Supreme court decided in a 5-4 ruling that the denial of marriage based on sexual orientation was unconstitutional. This ruling was based on the 14th Amendment, which states that no person shall be denied equal protection under the law.

The battle was finally won, and celebrations lasted far into the night in cities and towns across the country. In the following weeks and months, wedding bells rang as thousands of couples said “I do.”

Effects and looking ahead

Though marriage isn’t everything, it is one step closer to true, lived equality. It allows humans to more fully and freely express their true selves. Just as the victory of the 1967 Loving v Virginia, which lifted the ban on interracial marriage, Obergefell v Hodges was a critical way to define and codify that the LGBT community should be treated equally.

One significant effect has been the drastic increase in those publicly identifying as LGBT. Marriage equality, and the parallel shift in public opinion towards the support of the LGBT community, has made it safer for individuals to “come out.” In 2012, only 3.5% of Americans identified as LGBT on the Gallup poll. By 2014, that number had jumped 17% to 4.1% of all Americans. Perhaps even more telling, for millennials the percentage has increased from 5.8% to 7.3%. This may indicate that the U.S. as a whole is becoming more inclusive towards the LGBT community.

Worldwide, other countries have made progress on similar journeys, building on the momentum the U.S. has helped create. For example, Colombia, a country in South America, legalized marriage equality in 2016.

Lastly, this victory has affected the fight for LGBT equality in other areas, such as stronger anti-discrimination laws, which affect everything from being treated fairly in the workplace to adopting children. The Gay Family Law Center is proud to have served the LGBT community for many years, and we look forward to doing so in the future.

Contact us for a consultation.

Photo by Markus Spiske on Unsplash

June 9, 2017

When planning for your wedding, there are many things to consider. The venue, the guest list, the catering. Though not the most exciting part of your engagement, creating sound prenuptials should be on every LGBT couple’s pre-wedding to-do list. Known colloquially as “prenups,” this set of documents helps lay the groundwork that will help set your marriage up for success.

What are prenuptial agreements?

In a nutshell, prenuptials are legal agreements that state what will happen to assets and liabilities during the marriage, and in the case of divorce or separation.

For example, if one partner has a large amount of student debt, and they wish to remain solely responsible for it, they would spell out in the prenuptial documents that this particular financial burden would not be passed on to their partner.

As another example, if one person owns a house, and wishes to keep the property solely under their name, that can also be clarified in the documents.

Prenuptials must be signed before the marriage, or they will not be valid. This is in contrast to postnuptials, which are signed after the marriage.

What happens if we don’t create a prenuptial agreement?

California has community property law, which means that when a couple marries, the default legal position is that all assets and liabilities acquired during marriage are split 50/50. The law also states that everything acquired before the marriage are meant to be the sole responsibility of the respective individual.

In reality, though, when going through a divorce, without prenuptials it can be very difficult to separate which property, assets, and liabilities were acquired during the marriage, and which before. After all, most of us don’t keep perfect records of every purchase and agreement.

It may be possible to create a postnuptial agreement, but prenuptials are legally stronger, generally speaking.

LGBT Prenuptials were not always treated fairly—but they are (or should be) today

Before the 2015 ruling of Obergefell v Hodges, which legalized gay marriage nationwide, LGBT prenuptials were less valid in some states than others.

For example, Indiana was a state that refused to recognize LGBT marriages if even a couple was married in a state where gay marriage was legal. Thus, they also deemed all LGBT prenuptials invalid, even if they were legally sound in the state where they were signed.

Thankfully, this is no longer the case, and your prenuptials are now legally required to be recognized in all 50 states.

Prenuptials particularly important for LGBT couples

Given that LGBT couples still face discrimination and continue to have legal grey areas concerning many civil rights, it’s particularly important for them to create thorough, sound prenuptials. There are a few specific motivators as well, which we’ll cover here.

Frequently, LGBT couples marry later than heterosexual couples. This is due in part to the fact that gay marriage was not legal nation-wide until 2015. In fact, during the first 4 months after the Obergefell v Hodges ruling, nearly 100,000 LGBT couples got married. Many of them had been in a relationship for years, accumulating many shared assets, property, and liabilities.

In many cases, LGBT couples also marry later because they know they may face discrimination. Therefore, they postpone ‘coming out’ to their families, friends, and colleagues in fear of the social repercussions they may face.

Whatever the reason, LGBT couples are more likely than heterosexual couples to hold a long-term relationship before marriage. This often means that they live together, perhaps share bank accounts, and make large purchases together such as vehicles and homes. Any of this that happens before marriage does not fall under community property law. Thus, splitting those assets and liabilities in case of divorce can be complicated and frustrating in the absence of a prenuptial agreement.

Closing

A great benefit of prenuptials is that is requires the couple to sit down and talk through some of the less exciting, but still very important, aspects of their life together. You’ll ask questions like “Will we have a joint bank account?” “I’m expecting an inheritance in a few years. Should we share it, or not?” “How should we handle debt from my medical bills?”

In a way, prenuptials are romantic. After all, they show that the couple is committed to preventing future conflicts, and that they’re willing to have tough conversations in order to build a strong, sturdy foundation for their marriage.

Contact our experienced attorneys today to schedule a consultation about drafting your prenuptials.

Photo by Denny Müller on Unsplash

January 30, 2017

Until 2013, non-heterosexual couples did not have the option to marry in California, so many chose the route of obtaining a domestic partnership. Today, some still choose this option, while others choose marriage. Let’s take a look at what that means.

What is a domestic partnership?

Similar to a marriage, a domestic partnership in California is defined as “two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” It is another way in which a couple legally binds their relationship.

In California, only non-heterosexual partners, or heterosexual couples in which on partner is at least 62 years of age may obtain a domestic partnership.

As of today, those in a domestic partnership enjoy virtually the same state  rights and responsibilities as those in a marriage, apart from a few nuances we will discuss below. However, it is important to note that they are not recognized under federal law. This may significantly impact your federal rights.

A brief history

Domestic partnerships were first enabled in 1999, with only a handful of rights, mainly related to health care coverage and hospital visitation.

More rights were added on via the California Assembly in 2001, 2003, and finally in 2011. Now, domestic partnerships are treated nearly identically to marriages in California.

Since the 2013 Hollingsworth v. Perry  case legalizing gay marriage in California, and the 2015 Obergefell v. Hodges  ruling that applied this right nationally, fewer people are opting for domestic partnerships.

Was my domestic partnership converted into a marriage with the legalization of gay marriage?

In some states, such as Washington State, domestic partnerships automatically became marriages when gay marriage was legalized. This is not the case  in California. It is up to each couple to decide for themselves whether they would like to maintain their status as domestic partners, or get married. They may be both married and in a domestic partnership simultaneously, as long as they are to the same person. For couples who do have this “double commitment,” we encourage you to contact us in the case of a separation, as it can add another layer of legal complexity.

What is the difference between domestic partnerships and marriage?

With regards to California state law, there are very few differences. Community property law, state taxes, and medical decision-making all mirror the rights of married couples, for example. However, you may lack the same level of access to your partners health care benefits.

It is critical to note that California domestic partnerships are not  recognized by federal law. This may have a significant impact on your life. For example, you may experience the following impacts:

• Federal retirement plans do not recognize domestic partnerships in every case.
• Domestic partners receive fewer rights with flexible spending accounts, health savings accounts, and others federal benefits.
• Domestic partners may not file federal taxes jointly or take advantage of other tax benefits that married couples have access to.

Note that this is not an exhaustive list.

Likewise, certain other states and quite a few foreign countries do not recognize the legality of the relationship, which can impact travel and medical care abroad.

There are also several differences in legal processes for entering  into a domestic partnership and in navigating divorces and separations, which we will not discuss here. It is noteworthy, however, that unlike a marriage license, domestic partnership applications may be filed confidentially, in which the parties names are not released to the public. This is an appealing option for some LGBT couples in unique circumstances.

Whether you are considering a LGBT domestic partnership or a marriage, our experienced attorneys can help guide you through the process. Contact us to learn more.

Photo by Ted Eytan, CC BY-SA 2.0

December 29, 2016

In California, Gay and Lesbian couples may legally marry. There are a few exceptions that we will discuss below, but in general, same-sex couples receive the same Federal and State rights as heterosexual couples.

California has been a key player in progressing LGBT rights, but it has not always been a linear journey. Let’s take a closer look at the history of gay marriage laws in California, and at where we stand today.

A brief history of California gay marriage laws

• 2000: the introduction of Proposition 22. Passed with 61% of the vote, this proposition deemed valid only marriages between a woman and a man. Though same-sex marriage was not yet legal, this put in place a barrier to prevent future laws. It passed just months after domestic partnerships, which had existed since the 1980s, received more rights and benefits.
• 2004: San Francisco takes a bold step. In February, San Francisco Mayor Gavin Newsom allows gay marriage to be officiated within the city. Nearly 4,000 gay couples are married before the California Supreme court intervenes the next month, when they are invalidated.
• 2005: Freedom to Marry bill introduced. A bill legalizing same-sex marriage makes it through the California legislature to the desk of Governor Arnold Schwarzenegger, who vetoes it, citing a violation of Proposition 22.
• 2007: Freedom to Marry bill tries again. Like in 2005, Governor Schwarzenegger vetoes the new bill, stating that the courts or the people must decide how to proceed.
• May 2008: Marriage becomes legal, for a short time. A case regarding the constitutionality of Proposition 22 reaches the California Supreme Court, which rules that bans on gay marriage are indeed unconstitutional. 18,000 same-sex couples get married over the next few months.
• November 2008: Same-sex marriage banned again. Proposition 8, the “Marriage Protection Act” reaches the ballot and passes with 52% of the vote, making same-sex marriages illegal in California once again.
• 2013: Gay marriage permanently legalized in California. Marriage equality advocates bring a lawsuit against Proposition 8, which is first tried at the District Court, followed by the U.S. Ninth Circuit Court of Appeals, and finally the U.S. Supreme Court in 2013 in Hollingsworth v. Perry. The proposition is ruled unconstitutional, as it discriminates against gay and lesbian couples. Finally, marriage equality advocated can celebrate without fear of losing their hard-won rights.
• 2015: Same-sex marriage legalized nationwide. In Obergefell v. Hodges, the U.S. Supreme Court rules that same-sex marriage is legal in every state. Same-sex spouses may also now receive federal benefits such as visa accessibility and military benefits.

Where we stand today

Legally, same-sex couples have every local, state, and federal right that comes with marriage. In reality, however, we still have some work to do. For example, the language we use in our legislation and the application of the laws are still being perfected. In California, SB 1306 was passed in 2014, and it updated the definition of marriage and other language. Now, marriage is defined as “a personal relation arising out of a civil contract between two persons, to which the consent of the parties capable of making that contract is necessary.” This year, SB 1005 further updates the language in our legislation, such as using gender-neutral terms such as “spouse” instead of “husband” or “wife.” It will come into effect on January 1, 2017.

There are several other legal complications demonstrating that there is still work to be done. What follows are several examples. This is not an exhaustive list and is not meant to provide legal guidance. Contact us for legal advice.

• Religious institutions are not required to perform same-sex marriages, though many are welcoming to gay and lesbian couples. Civil servants who officiate marriages, however, are legally prevented from discriminating.
• Certain private clubs and other membership-based organizations still retain the legal right to turn away who they like. This may affect wedding venue choice, for example, for clubs that do not serve the general public. Businesses that do regularly conduct business with the public, such as florists and bakeries, cannot discriminate.
• Religious corporations may in some narrow instances deny benefits to same sex spouses or refuse to hire LGBT individuals. However, this is rare. Most employers are banned from discrimination in hiring practices, benefits, and other interactions with employees.
• Some international adoption agencies do now allow same-sex couples to adopt. All adoption agencies within California may not discriminate against same-sex couples. Contact us for more details if you are considering adoption.
• American Indian tribes were not affected by Obergefell vs Hodges, as courts do not have legal authority over tribes. But since 2013, beginning with the Iapay Nation of San Ysabel, near San Deigo, several have legalized gay marriage.

In closing, we have made immense progress over the past two decades in the rights of gay and lesbian couples, both on a state and a national level. Our attorneys have expertise in all aspects of same-sex marriage and family law, including pre- and post-nuptial agreements, wills, trust, estate planning, divorce, adoption, and more. We are here to help in all phases of your family’s legal needs.

Further reading
• “Marriage for Same-Sex Couples in California” by Lamba Legal.
• “Winning the Freedom to Marry Nationwide” by Freedom to Marry
• “Tribal Laws and Same-Sex Marriage: Theory, Process, and Content” by Ann E. Tweedy, Tribal Attorney, Muckleshoot Indian Tribe. Associate Professor, Hamline University School of Law.
• “Paradigms Lost: How Domestic Partnership Went from Innovation to Injury” by Melissa Murray, Berkeley Law

Photo by Mick De Paola on Unsplash

December 13, 2016

California same-sex marriage laws allow same-sex couples the right to marry and the ability to have their out-of-state marriages recognized in California and in other states. Also, the law in California offers same-sex couples protections from discrimination in many areas.

The recognition of same-sex marriages in California

Same-sex couples have been able to marry in California since 2013, thanks to the United States Supreme Court case, Hollingsworth v. Perry which stated that Proposition 8’s ban on same-sex marriages was unconstitutional. Same-sex couples in California received an additional vote of support from the United States Supreme Court’s 2015 ruling in Obergefell v. Hodges, that said same-sex couples have a Constitutional right to marry and these marriages should be recognized outside of their home state. Therefore, a same-sex couple married in California should have their marriage recognized as valid anywhere else in the United States. Based on these decisions same-sex couples have been put on equal ground with opposite sex couples and this appears to have been solidified for good.

Anti-discrimination Measures

In addition to allowing same-sex couples the right to marry California law also offers same-sex couples protections against discrimination.
Protections from discrimination for same-sex couples.
California law prohibits discrimination based on sexual orientation, gender identity, gender expression, or marital status. Based on these protections same-sex couples may not be discriminated against based on their same-sex marital status. The following represents some of the significant protections against discrimination provided by California law.

Protection against refusal of service by private businesses

California law prohibits private businesses that serve the public from discriminating against someone based on sexual orientation, gender identity, gender expression, or marital status. Further, a business owner may not use their religious beliefs as an excuse to discriminate.
Protection against employment discrimination

Under California law, an employer may not refuse to hire a person based on sexual orientation, gender identity, gender expression, and marital status. Further an employer may not refuse to provide a same-sex spouse with employment benefits provided to opposite-sex spouses.

Protection against housing discrimination

Under California’s anti-housing discrimination laws, a landlord cannot refuse to rent a house or apartment to a same-sex couple or otherwise engage in housing discrimination based on sexual orientation, gender identity, gender expression, and marital status.

Protection against discrimination in when adopting a child

California prohibits adoption and foster care agencies from discriminating based on sexual orientation and gender identity. As such a same-sex couple may adopt or act as foster parents without fear of discrimination by a California-based adoption agency.

The Future of Same-Sex Marriage in California

Many have speculated that the appointment of a conservative United States Supreme Court justice to the current vacancy on the court could embolden anti-same-sex marriage activists to try to reverse course and invalidate California’s recognition of same-sex marriages. In fact, any anti-same-sex marriage efforts would likely not be able to overcome the strong political and legal opposition these efforts would face. Further, since the United States Supreme Court has only recently come down for same-sex marriage, it is unlikely the court would take the unprecedented step of overruling itself so soon on such a monumental issue. As such, same-sex couples in California should rest easy in their right to marry and be protected from discrimination.

Further reading on this topic can be done here.

Photo by Sharon McCutcheon on Unsplash