Gay Couples Law Blog : Atlanta Same Sex Family Law and Estate Planning Commentary : Gideon Alper : Gay Law, Domestic Partnerships

Here's the conclusion of the top 10 stories of 2009 in gay couples law. Despite the political setbacks towards the end of the year, it's hard to complain when 3 states that didn't allow gay marriage now do.

5. California Supreme Court Upholds Proposition 8

Most of the legal battle surrounding Proposition 8, the voter referendum that overturned California gay marriage, happened in 2008. But it ended this year when the Supreme Court upheld the referendum. Still, Governor Schwarzenegger did sign a bill recognizing the marriages of gay couples from before Proposition 8 was approved.

4. Washington Passes Everything-But-Marriage Law, Citizens Affirm Through Referendum 71

If all that happened was that the state legislature passed Bill 5688, granting domestic partners in the state the rights of married couples, this story would still have made the list. But who can forget the Referendum 71 legal war, making national news with battles over whether the referendum could be blocked, whether signatories could be revealed, whether the signatures were even valid, and whether its wording was too confusing. But at the end of the day, state voters approved the referendum, letting the domestic partnership law stand.

3. Wisconsin Passes Domestic Partnership Law Despite Constitutional Ban on Gay Marriage

This state’s passage of a domestic partnership law was particularly important because the state’s constitution bans same-sex marriage. It showed how a state legislature could work against a constitutional ban on gay marriage to still provide gay couples with legal rights enjoyed by married couples. This is important, because many states have such a ban in place. The legislature had to provide fewer rights to gay couples than it wanted to prevent domestic partnerships from looking too much like gay marriages, which the state constitution bans. As a result, Wisconsin gay couples don’t get everything-but-marriage, but they still have more than they did before.

2. Maine Passes Same Sex Marriage Law, Voters Overturn It

Back in May, it looked like Maine would be the 6th state to allow gay marriage. This would have been the first state to legalize gay marriage through the legislature instead of through the courts. But state voters said otherwise. Just like every other time gay marriage has been put up to a popular vote, they approved a referendum that overturned the law.

1. Iowa, New Hampshire, and Vermont Legalize Gay Marriage

While the same sex marriage law in New Hampshire won’t actually take effect until the new year, gay couples in Iowa and Vermont can get married today. The addition of three states to the list of those allowing gay marriage makes 2009, despite setbacks in other states, overall a very good year for legal rights of gay couples.

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There's been a lot of media attention on the recent failures to legalize gay marriage. First Maine voters rejected a marriage law, then the New York legislature did too. Now the media's talking about a vote for gay marriage in New Jersey.

Meanwhile, gay couples that aren't getting married are getting more rights. Ashley Surdin of the Washington Post noted how non-marriage legislation has consistently over the last few years granted gay couples more health, employment, and other state benefits. The article points out a few examples from just this year:

• A New York court upholding benefits to same sex spouses of employees married out-of-state.
• The Washington "everything but marriage" law.
• U.S. House approval of benefits for federal employees.
• California court rulings granting benefits to same sex spouses.

And the article doesn't even mention the many state court rulings recognizing gay custody, parental, and adoption rights.

Still, even in states with "everything but marriage" laws, the inability to get married means gay couples must continue to use nontraditional legal means to make up for the absence of federal marriage benefits.

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Folks who live in Maine might be thinking about getting married in Canada after their state voted down a law that would have allowed gay marriage. In fact, many U.S. gay residents go to Canada to take advantage of laws that have allowed gay marriage since 2005.

But they better hope they stay together. It's hard for same sex couples to get divorced after getting married in Canada.

While couples can easily go to Canada for a weekend and get married, the country has more strict requirements when its comes to divorce. The Canadian Divorce Act says that for a couple to get divorced in Canada, one person must have lived in the country for at least a year just before the divorce. Not surprisingly, people may not want to move to Canada for a year just so they can get divorced.

But staying home has its own problems. The reason a gay couple goes to Canada to get married in the first place is usually because their own state doesn't allow gay marriage. But if it doesn't allow gay marriage, it probably won't allow gay divorce either. So Maine residents who now go to Canada to get married, for example, won't be able to get divorced back in their home state.

Barbara Findlay, a family lawyer in Vancouver, summarized the situation in the latest issue of Lawyers Weekly:

So unless they happen to be very wealthy and have nothing better to do with their time than to hang out in Canada for a year, they really can’t get a divorce here. In other words, they are stuck in a divorce catch-22.

Couples married in Canada aren't completely out of luck because they can still go to one of the few states that allows gay marriage and divorce. But these states often have their own additional rules. Massachusetts, for example, also has a 1 year residency requirement similar to Canada's.

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The people of Maine voted yesterday to repeal a law that would have allowed gay marriage, but the vote will not slow increasing public support for gay marriage overall.

Law professors Patrick Egan and Nathaniel Persily discussed in an article the growth in public support of gay marriage over the last two decades. Their research showed a steady rate of increase of about 1% annually--even in those with court decisions that impacted gay rights.

That's because individual political events have not affected the long term support trends. The professors explain:

The public’s approval of same-sex marriage has exhibited a slow but steady upward trajectory over time. . . . The most likely outcome in the future is consistent change: a steady movement in opinion caused by larger cultural and demographic forces that overwhelm any individually salient political events.

In fact, support for gay marriage already surpasses the historical level present when courts and legislatures have given minorities marriage rights.

Take for example interracial marriage. Not until 1994, 27 years after the Supreme Court outlawed bans on interracial marriage, did a majority support it.

In contrast, the professors predict that a majority of Americans will support same gay marriage by 2012.

The Maine vote may have disappointed advocates and pleased opponents of same sex marriage, but it won't stop the trend of more people every year wanting to let gay couples marry.

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