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Over the past few years, this column has closely followed the ups and downs of same-sex marriage issues. Here are the latest milestones in our long march to equality:
In California, in 2010, U.S. District Judge Vaughn Walker found Proposition 8, the initiative that banned same-sex marriage, to be unconstitutional. His ruling was appealed to the Ninth Circuit Court of Appeals by the sponsors of Prop 8. Both then-Gov. Arnold Schwarzneggar and then-Attorney General Jerry Brown declined to defend it, and the appeals court has asked the California Supreme Court whether state law gives initiative sponsors any right to appeal a federal court ruling.
The California Supreme Court is expected to take up the issue this fall. If no-one has legal standing to appeal Prop 8, then it will be unenforceable. If the Court finds that sponsors do have standing to appeal, the Ninth Circuit Court of Appeals will conduct hearings on the constitutional questions, and will issue a ruling at some time in the next year.
In the meantime, same-sex marriage continues to be banned in California. The state recognizes the marriages of same-sex couples who were married during the several months it was legal in 2008; and it recognizes the marriage of couples from other states and countries who were married before Prop 8 went into effect. Same-sex married couples who were married in other states and countries after the ban have all of the same rights and obligations of married couples, without being called “married.”
In New York, on June 24, the state legislature passed and Gov. Andrew Cuomo signed a bill legalizing same-sex marriage. The act becomes effective in 30 days. New York is by far the most populous state to provide true marriage equality. There are provisions in the law to ensure religious beliefs are protected.
In Illinois, the “Illinois Religious Freedom Protection and Civil Union Act” was recently passed, and went into effect on June 1, 2011. A civil union may be entered into by two people, same sex or opposite sex, who apply for and receive a state license from a county clerk’s office in the state of Illinois. There must be a formal ceremony, and the civil union must be confirmed by a certificate.
The law confers on civil union couples all the legal rights and responsibilities of married couples in the state, without calling the union “marriage.” Illinois will recognize same-sex marriages, civil unions or registered domestic partnerships entered into in other states, as long as the unions offer essentially the same protections and responsibilities of Illinois’ unions.
As in California registered domestic partnerships, Illinois civil unions can be dissolved by filing a petition for dissolution, just as married couples file a petition for divorce. Support, child custody and property division issues are handled by a court just as in the termination of a marriage.
In Hawaii, a civil union law was recently passed, to take effect on Jan. 1, 2012. This law is similar to the Illinois statute, giving same-sex and opposite-sex partners the right to enter a civil union that will offer essentially the same benefits, protections and obligations as marriage, without being called marriage. The new law will recognize same-sex marriages, civil unions and registered domestic partnerships from other states and countries.
In Delaware, a civil unions bill was recently signed into law by the governor, giving same-sex partners (not opposite-sex partners) the same rights, protections and responsibilities as marriage, again without calling it marriage. This new law takes effect on Jan. 1, 2012. Same-sex marriages, civil unions and registered domestic partnerships from other jurisdictions will be recognized.
The addition of these three states will bring the number of states giving the benefits and obligations of marriage, without the title of marriage, to eight: California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Washington.
Jurisdictions that permit marriage of same-sex partners now number eight: California (for the couples who married during its legal period before Proposition 8), Connecticut, District of Columbia, Iowa, Massachusetts, New Hampshire, New York and Vermont.
What about the rest of the U.S.? A few states give limited domestic partnership protections to same-sex couples and/or to state employees. Twenty-nine states have constitutional amendments restricting marriage to opposite-sex partners.
At the federal level, the Defense of Marriage Act which prohibits federal benefits or protections for same-sex married couples, may soon be dismantled. The Department of Justice has stated that it will not defend sections of this Act because it is unconstitutional. However, the law remains in effect, and only Congress can repeal it, or the U.S. Supreme Court must strike it down.
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