Same-Sex Marriages: Legal Issues Same-Sex

same-Sex marriages: LEGAL ISSUES

Same-sex marriage in the United States is fraught with legal complications, which do not only restrict issuance of marriage license but also create problems with other basic civil rights connected with marriage such as child custody, social security benefits, medical leave etc. In 2004, Massachusetts became the first state to legalize same-sex marriages while some other states recognize same-sex union under categories such as civil union, domestic partnerships and reciprocal beneficiary relationships. However these recognitions exist in handful of states while a vast majority of them endorse Defense of Marriage Act (DOMA) in one form or another. There is no federal law recognizing same-sex marriages. In fact during Clinton era, DOMA was passed which restricted recognition of any marriage except the one that took place between " one man and one woman."

The problems faced by same-sex couples are not restricted to marriage. Some courts may issue a license after a case in filed and is successfully fought. But even after issuance of license, the problems arising from inability to get child custody or reap benefits of marriage through state laws can consistently challenge a same-sex union. Chanen (2004) cites an example to highlight the legal issues: "When the city of San Francisco began issuing marriage licenses to same-sex couples earlier this year, attorney Frederick Hertz received a call from a client seeking advice on whether she and her lesbian partner should obtain one. Hertz, whose office is across San Francisco Bay in Oakland, had no easy answer. "I said to her that when you get married and apply for a loan, the bank's loan application does not have a box next to 'Single,' 'Married' and 'Divorced' that says

Marriage license applied for, validity in question,' " recalls Hertz."

The legal issues arise from state laws adherence to federal legislation like DOMA which specifically prohibit same-sex marriages: "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage..." The law further states that "the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." With such laws in practice, issues and problems surrounding a same-sex union are multifaceted.

While a marriage license issued to a heterosexual couple is recognized throughout the country, the same is not true for same-sex couples. It is important to understand that state laws or rights have a very limited scope. They are of use within that state and not across the country. For this reason while Massachusetts State Supreme Court recognizes same sex marriage, the license thus issued would only be recognized in Mass. Similarly any benefits arising out of this license would not be offered by any other state. Same-sex couples in Vermont for example are recognized under civil union category. And couples under civil union are given some of the benefits that married couples are offered but still since it is a state law, it has applicability and effect within that state only. Marriage between heterosexual persons may be deemed invalid or void if and only if the state law under which it took place violates "some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal." In all other cases, out-of-state marriages are valid and accepted everywhere. Even where domestic partnerships are recognized, same-sex couples may not be able to reap any real benefits: "Domestic partnership laws provide even fewer protections than civil unions and can vary dramatically depending on the jurisdiction that enacts the law. In some jurisdictions, domestic partner registries do not confer any rights or responsibilities at all and are simply a registration." (Doering, 2004)

The children of gay parents do not enjoy the same civil protections as children of heterosexual parents. In case of adoption, things may become even more complicated. A gay person who chooses to adopt a child is likely to face many hurdles since the legal system may prejudicially term him/her unfit to raise a child. Another important issue is the prejudice towards adoption by a co-parent. By denying the second parent the right to adopt the child can, according to APA, deprive the child of the psychological and legal benefits " that comes from having two willing, capable, and loving parents." (Davis 2002) the security that comes from a legally sanctioned union can help a child emotionally and psychologically because long-term relationships approved by the law of the land provide some essential benefits. The child is not only cared and supported by two loving parents, he/she will also be entitled to receive support in the case of death of one parent. Custody of a child may become easier if it can be proved that child doesn't witness sexual contact between parents.