Family Law from the Perspective
of a Same Sex Couple by Mark F. Scurti
On Tuesday, September 18, 2007,
Maryland’s Court of Appeals by a 4 to 3 vote closed the door on finding the Maryland marriage statute, which defines marriage between one man and one woman, unconstitutional, thereby ending the judicial fight for equality for same sex couples.1
The need is even
greater now for family law attorneys to learn about same sex family law. The decision reinforces the deficiency of our legal system in addressing the law and its impact on same sex couples. The entire issue of civil marriage is
more than just symbolic. It is about the ability of committed couples to legally unite, to create a family, and to have the same benefits, responsibilities and li- abilities that come with marriage. Civil unions are not the same as marriage. Simply saying the words “I do” in mar- riage brings to bear over 1,100 federal laws and over 240 state laws that impact one’s status as a spouse. Inheritance rights, estate planning, custody and visi-
1
Conaway v. Deane, appeal from the Circuit Court for Baltimore City. Maryland is one of 19 states with laws restricting marriage to one man and one woman. Included in this list are: Arizona, California, Connecticut, Delaware, Flori- da, Hawaii, Illinois, Indiana, Iowa, Maine, Minnesota, New Hampshire, North Caro- lina, Pennsylvania, Vermont, Washington, West Virginia and Wyoming. There are 26 states with constitutional amendments restricting marriage to one man and one woman: Alabama, Alaska, Arkansas, Colorado, Georgia, Kansas, Idaho, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Tennessee, Texas, Utah, Virginia and Wisconsin. As of September 19, 2007 constitutional amendments are being considered in Alaska, Delaware, Illinois, Maryland, Minnesota, New Jersey, North Carolina, Oklahoma, Washington and West Virginia (
HRC.org/statelaws)
30
tation, child support, marital property division, hospital visitation and access, the right to dispose of a spouse’s body upon death, to make funeral arrange- ments, taxing consequences, titling of assets for protection, health insurance and pension benefits, rights to social security, immigration and naturalization status, spousal privilege, and the list goes on.
A Brief History Same sex marriages are not new: we
can date them back to between the 5th and 14th
centuries when the Roman
court. The same year, two men in Ari- zona were given a license, and it, too, was later voided by the courts. Closer to home, in 1975, a Clerk in
Montgomery County Circuit Court issued two women a marriage license, which was later voided. In 1984, in Berkeley, California, the city extended spousal benefits to live-in same sex partners of its city employees. This marked the modern movement towards recognition of same sex relationships and the granting of basic benefits con- ferred upon those relationships. In 1989, the San Francisco Bar Association gave support to same sex marriages and en-
The entire issue of civil marriage is more than just symbolic. It is about the ability of committed couples to legally unite, to create a family, and to have the same benefits, responsi- bilities and liabilities that come with marriage.
Catholic Church conducted special cer- emonies to bless same sex unions. These were spiritual and not sexual unions. Up until 1686 marriage was strictly a civil ceremony for the Puritans in Massachu- setts, as it had no religious connection. The Unitarian Church in 1984 was the first to recognize and approve same sex ceremonies. Other religions followed shortly afterwards: Buddhist, Episcopa- lian, Reconstructionist Jewish, Reform Jewish, Presbyterian, and Quaker. In 1971, the first legal challenge was in the case of Baker v. Nelson2
in Min-
nesota, which ended in defeat. In 1975, the first legal same sex marriage was performed in Boulder, Colorado, when five same sex couples obtained marriage licenses. They were later revoked by the
2 291 Minn. 310, 191 N.W.2d 185 (1971) Trial Reporter
couraged the state of California to allow the marriages. The California legislature has passed same sex marriage laws in 2006 and 2007 only to be vetoed by the governor each time.3 The next law suit came in 1990 in the case of Dean v. D.C.4
, which was a suit
for the right to marry in the District of Columbia. The case was later rejected by the court citing the Bible. In Hawaii in 1991, a suit was filed in the case of Baehr v. Anderson5
which
became the first suit to challenge the prohibition on same sex marriages
(Continued on page 32) 3
4 5
As of the date of this article, it is antici- pated that the Governor of California will veto the 2007 legislation. 653 A.2d 307 (D.C. 1995) 852 P.2d 44 (Haw. 1993)
Winter 2008
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