Marital Property

The Supreme Court’s refusal to take certiorari in a number of cases means that same-sex marriage will become legal in Indiana, Oklahoma, Utah, Virginia and Wisconsin, and soon afterwards in Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming bringing the total number of jurisdictions to 31 (including the District of Columbia) plus at least 5 Indian nations. In addition a ruling by a three judge panel in the 9th Circuit on Oct 7, 2014 will likely open up Nevada and Idaho as well, making a total of 33 jurisdictions. States that still ban same-sex marriages include Alaska, Montana, Arizona, North Dakota, South Dakota, Nebraska, Texas, Missouri, Arkansas, Louisiana, Michigan, Ohio, Kentucky, Tennessee, Mississippi, Alabama, Georgia and Florida. Jessica Meyers, Appeals rejected, way cleared for wider same-sex marriage: court action likely to affect 11 more states, Boston Globe, Oc. 6, 2014.

For the first time, federal court rulings seem to have brought same-sex marriage the states. Most of the states that have recognized such marriages have done so through state court rulings or legislation. However, federal court rulings have increasingly found same-sex marriage bans to violate the equal protection clause of the federal constitution. Most such rulings of federal district courts are on appeal and most were stayed during that appeal. However, the governors of both Oregon and Pennsylvania declined to appeal the rulings and no other parties appear to have been given standing to do so. Geiger v. Kitzhaber, 2014 U.S. Dist. LEXIS 68171 (D. Ore. 2014); Whitewood v. Wolf, 2014 U.S. Dist. LEXIS 68771 (M.D. Pa. 2014); That seems to place those states in the same-sex marriage column bringing the total number of jurisdictions with same-sex marriage to twenty (19 states plus the District of Columbia). The list includes California, Connecticut, Delaware, District …

Oregon and Pennsylvania join the states with same-sex marriage Read More »

The Supreme Court of New Mexico opened the state to same-sex marriages in the case of Griego v. Oliver,  2013 WL 6670704 (N.M. 2013). It interpreted New Mexico statutes as denying the right of same-sex couples to marry and then held those statutes unconstitutional under the equal protection clause in Article 18 of Section II of the New Mexico Constitution. The court unanimously held that the statutes created a classification based on sexual orientation and that such statutes should be subject to intermediate scrutiny because the class of gay and lesbian persons has a history of being subject to discrimination and “deep-rooted prejudice against their integration into society.” Applying that standard of review, the court found the classification unconstitutional. The state justified denying same-sex couples the right to marry on the ground that male-female marriages promoted “responsible procreation and child-rearing.” Although this is a legitimate government interest, the court found no relation …

Same-sex marriage in New Mexico Read More »

A federal district court judge in Utah struck down the state’s marriage laws to the extent they disallowed same-sex couples to marry. Kitchen v. Herbert, (D. Utah 2013). Holding the right to marry to be a fundamental constitutional right and denial of that right to same-sex couples a violation of the equal protection clause in the U.S. Constitution, the judge refused to stay his opinion. As a result hundreds of couples began applying for and receiving marriage licenses. The decision is being appealed by the state of Utah and may be overturned by the Tenth Circuit. In a related ruling, a federal district court judge in Ohio ruled it unconstitutional for Ohio to deny marriage status to same-sex couples married out of state when one dies in-state. Obergefell v. Wymyslo, 2013 WL 6726688 (S.D. Ohio 2013).  the judge ordered that the death certificates record the fact that the decedent was married. read article

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The Illinois House has passed a marriage equality bill that is virtually certain to become law in some form in the near future given the support in the Senate and by the Governor. Once that happens, 15 states will have same-sex marriage along with the District of Columbia. The outcome is more uncertain in Hawai`i but the legislature may vote in favor of a same-sex marriage bill in the next days.

Given the clear statement by the Supreme Court of New Jersey on how it was likely to rule in the pending marriage equality case, (see Garden State Equality v. Dow (N.J. 2013). Governor Chris Christie decided to drop the appeal. read article. That leaves the lower court ruling (read opinion here) in place with its conclusion that civil unions are not equal to marriages now that the federal government provides same-sex married couples the same federal rights as male-female married couples but does not confer such rights on partners to a civil union. The New Jersey Supreme Court’s prior ruling in Lewis v. Harris, 908 A.2d 196 (N.J. 2005), had found it to be a violation of the state constitution not to grant same-sex couples the same rights as married couples but left it to the legislature whether to call the resulting unions “marriages” or “civil unions” or something else. While New Jersey conferred equal rights …

Same-sex marriage prevails in New Jersey Read More »

The Supreme Court of New Jersey unanimously upheld the decision of a trial judge to allow same-sex marriage to proceed pending appeal of the trial judge’s ruling that the New Jersey civil union law violates equal protection by denying same-sex couples the same rights as granted to married couples under federal law. Garden State Equality v. Dow, (N.J. 2013). The court had previously held that same-sex couples were entitled under the state constitution to the same rights and privileges as married male-female couples but allowed the legislature to determine whether to accomplish this end by extending marriage rights to same-sex couples or adopting a civil union law. Because the legislature adopted a civil union law, such couples had the same rights under state law as did male-female couples; they had different rights under federal law but that was because federal law refused to recognize any same-sex couples as married for any federal …

Same sex marriage to begin in New Jersey Read More »