In this country’s first federal trial on same-sex marriage, Judge Walker stated that Proposition 8 “fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.”  He continued, “Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.  *** Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8.  California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result, see FF 64-66;  moreover, California officials have chosen not to defend Proposition 8 in these proceedings.”

In 2008, 52 percent of California’s voters approved Proposition 8, an amendment to the state Constitution.

Particularly significant about Judge Walker’s 136-page decision is that it contains detailed “findings of fact.”  This is crucial because only a trial court can make findings of fact.  An appeals court has to give great deference to the trial court’s findings of fact.  Sixty pages of the Perry decision contain credibility determinations of the trial witnesses and findings of fact.

Most legal experts think that the case is headed to the U.S. Supreme Court after it is appealed to the U.S. Court of Appeals for the 9th Circuit.

The Illinois Marriage and Dissolution of Marriage Act states that “a marriage between 2 individuals of the same sex” is prohibited.   750 ILCS 5/212(5).   The Act goes a step further in declaring that “A marriage between 2 individuals of the same sex is contrary to the public policy of this State.”  750 ILCS 5/213.1.   Finally, the Act provides that “if any person residing and intending to continue to reside in [Illinois] shall go to another state or country”, and obtains a prohibited marriage, that marriage will be declared “null and void for all purposes in [Illinois] with the same effect as though such prohibited marriage has been entered into in [Illinois].”  750 ILCS 5/216.

Other governmental entities in Illinois allow individuals to register as “domestic partners.”  While this doesn’t give the couple any legal rights, it does give them the opportunity to formally recognize their relationship and provides a basis for some employers to provide employment benefits to the partner of the employee.

How can same-sex couples protect each other and their families?  They have to be proactive.  They need to seek legal advice and create effective solutions that will legalize their relationship to the greatest extent possible. Some of the keys to such a plan are: financial powers of attorney, medical powers of attorney, partnership agreements, wills and trusts.

Although the state of Illinois prohibits same-sex marriage, other governmental entities in Illinois allow individuals to register as “domestic partners.”  While this doesn’t give the couple any legal rights, it does give them the opportunity to formally recognize their relationship and provides a basis for some employers to provide employment benefits.

Cook County has a Domestic Partnership Registry, which allows same-sex couples who live or work in Chicago or the Cook County suburbs to formally record their relationships.  Some Illinois municipalities, inlcuding Urbana and Oak Park, also have domestic partnership registries.

How can same-sex couples protect each other and their families?  They have to be proactive.  They need to seek legal advice and create effective solutions that will legalize their relationship to the greatest extent possible. Some of the keys to such a plan are: financial powers of attorney, medical powers of attorney, partnership agreements, wills and trusts.   Some of these I’ve already discussed here.  I’ll discuss others in future posts.

The U.S. General Accounting Office has identified at least 1,138 federal benefits, rights and privileges that are available only to couples with traditional marriages.  In addition, the laws of most states give certain rights and privileges only to married couples.

The law makes legal strangers out of same-sex couples.  As a result, it’s critical for same-sex couples and all lesbian/gay/transgender individuals to create specific plans that protect their rights and care for their families and loved ones.

In future posts, I’ll be discussing how Illinois residents can do just that.