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.

In the first case, the men – who are identified in court records as JB and HB – were married in Massachusetts in 2006 and separated two years later.  They had been together 11 years before ending their relationship.  In the second case, partners Angelique Naylor and Sabina Daly married in Massachusetts in 2004 and adopted a child.  Both couples are represented by attorney  James J. “Jody” Scheske.

Judge Tena Callahan granted a divorce to JB and HB last October and also ruled that Texas’ ban on gay marriage is unconstitutional.   Texas Attorney General Greg Abbot is fighting that ruling in the appellate court, arguing that in order to recognize the divorce, Texas would have to recognize the marriage, and therefore, the couple is trying to overturn Texas’ gay marriage ban.

Texas voters approved a state constitutional amendment, and state law prohibits same-sex marriages or civil unions.  Attorney General Abbot is arguing that Texas courts can’t dissolve a marriage that the state does not recognize.

As of this writing, Massachusetts, Connecticut, Iowa, New Hampshire, Vermont and the District of Columbia allow same-sex marriage.    When trying to divorce, these couples are getting mixed results in the United States.  Judges in Pennsyvlvania, Indiana and Rhode Island have refused to divorce same-sex couples married elsewhere.  New York grants such divorces even though the state doesn’t allow same-sex marriage.

Civil unions, which give certain rights and responsibilities to same-sex couples, are legal in New Jersey.   Domestic partnerships, which give some spousal rights to same-sex couples, are valid  in California, Colorado, Hawaii, Maine, Maryland, Nevada, Oregon, Washington and Wisconsin.

This information will come from the relationship question, which asks the person filling out the form to identify how all other individuals in the household are related to him or her.  Census 2010 will not include questions about sexual orientation or gender identity.  Data are based on how individuals self-identify and how couples think of themselves.  This includes same-sex couples who live in a state in which their relationship is not recognized.  Same-sex couples who are married, or consider themselves to be spouses, can identify one other adult as a “husband or wife.”  Other same-sex couples may instead decide to use the term “unmarried partner.”

For guidance on how to complete the form, LGBT persons can refer to the document Census 2010 LGBT Basics, created by Gary Gates of the Williams Institute at the UCLA School of Law.

Engelhard, a 10-year veteran of the Missouri State Highway Patrol, was killed last December after getting out of his patrol car to place flares at the scene of a traffic accident.  Under Missouri state pension rules, if a trooper dies in the line of duty, his or her spouse is eligible for lifetime survivor benefits.   For Engelhard, that would have been more than $28,000 a year.

Missouri pension law is clear about who is a spouse.  In 2004 Missouri voters approved a constitutional amendment banning same-sex marriage.  Neither the state Highway Patrol pension system nor Missouri law recognizes domestic partners.

Although the unmarried partner of a heterosexual trooper would also not be eligible for survivor pension benefits, that couple would have had the option of getting married.   An option not available to Engelhard and Glossip.

Illinois, a bill, SB 2822, has recently been introduced that would amend the state pension code to allow a designated domestic partner to qualify as a surviving spouse for purposes of survivor and death benefits.  The bill defines a domestic partner as a person of the same gender as the unmarried pension participant who:

• is at least 18 years old
• is involved with the participant in a long-term relationship
• has resided witht he participant at the same address for at least 12 months
• is not a close blood relative of the participant
• is not married to another person
• has an exclusive mutual commitment to the participant in which they agree to be jointly responsible for each other’s common welfare and to share financial obligations.

The bill was signed into law in May, but same-sex marriage opponents gathered more than the 55,000 signatures necessary to call for a public vote.  The legislation allowed any two people to apply for a marriage license “regardless of the sex of each person” while allowing religious institutions to refuse to perform same-sex marriage if it was not consistent with their beliefs.

Same-sex marriage is legal in only 4 states – Massachusetts, Connecticut, Vermont and Iowa.

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.

SB2468, known as the Equal Marriage Act, would provide for state recognition of same-sex marriage, while ensuring that religious institutions are not required to perform any marriages that are inconsistent with their religious practices. This is a companion bill to HB178 which was introduced in the Illinois House of Representatives by Representative Greg Harris and co-sponsored by Representatives Deborah Mell, Sara Feigenholtz, Constance Howard, Harry Osterman, and John Fritchey.