The Supreme Court and Same-Sex Marriage: Heading Toward A New Set of Rules

March 21st, 2013

Now that the Supreme Court is taking up the issue of gay marriage, a new Pew Research Survey, taken March 13-17, 2013 reports 49% of the U.S. population supports same-sex marriage with 44% opposed. Equally important is that 14% of all Americans and 28% of gay marriage proponents now say they have changed their minds on this issue in favor of gay marriage!

What are the main reasons for the significant shift towards same-sex marriage? Pew Research states that 32% know someone who is homosexual, another 25% say their personal views have changed after they thought about the issue and have grown older.18% say they changed their mind because the world is changing and people should be able to choose what makes them happy and not have the government involved.

One very important finding in the new Pew Research Survey: Two-thirds of Americans (66%) agree that same-sex couples should have the same legal rights as heterosexual couples.

Nine states, Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, and Washington—as well as the District of Columbia have legalized same-sex marriage. Rhode Island recognizes same-sex marriages performed in other jurisdictions, and California, which briefly granted same-sex marriages in 2008, now recognizes them on a conditional basis. California’s Proposition 8 Ban on same-sex marriage is one of the cases that will be heard by the Supreme Court.

Nine states prohibit same-sex marriage by statute and 30 prohibit it in their constitutions. The Defense of Marriage Act (DOMA), enacted in 1996, prevents the federal government from recognizing same-sex marriages and allows each state to refuse recognition of same-sex marriages performed in other states. DOMA has been found unconstitutional in eight federal courts, including two federal appeals courts. One of these cases will be heard by the Supreme Court next week. Hopefully a decision on both cases by the Supreme Court will occur in this session and in doing so may bring a as semblance of order to what is now a conundrum of legal complexity.

This places same sex married couples from states in which same sex marriages are valid in a very difficult if not impossible situation should they migrate to the State of Texas for employment, family, or other personal reasons.

In Texas when obtaining a divorce, separation or division of assets in a same sex relationship (whether originally legally married or not), requires creative manipulation and application of Texas partnership and property codes and probate considerations along with various other contractual considerations.

In 2003 the legislature enacted a statute that made void in Texas any same-sex marriage or civil union. This statute also prohibits the state from giving effect to same-sex marriages or civil unions performed in other states or jurisdictions. Regrettably, under the current Texas law same sex unions or marriages validly performed and recognized in a state authorizing and providing jurisdiction for such legal relationships are not recognized and will not help the parties in the state of Texas, where it often counts most: health insurance, social security, disability insurance, child support, alimony, etc. The current law in Texas further ignores the underlying policy recognized in all states to always consider the best interest of the children. Regardless of policy considerations and decisions with regard to same sex unions, children are never at fault and making their children illegal citizens or citizens unworthy of protection cannot be in their best interest under any interpretation of state policy. Absent legal hoop jumping and manipulation, they are practically children without legal rights in the state of Texas.

Texas family law considerations for same sex couples in adoption situations becomes even more complicated requiring careful compliance with Texas state law and the adoption process to avoid donor issues, limitations, judicial estoppel and case law precedent in Texas which does not recognize or enforce same sex couple marriages.

If a co-parent adoption is properly followed, it is possible in Texas to have two moms or two dads which will be recognized under the Texas Family Code. In such cases a suit affecting the parent child relationship (SAPCR Action) is the appropriate remedy for recognition of and consideration of the minor children of the same sex union by adoption. Child support, health care insurance, visitation, possession and access rights of the parties, transportation costs, and injunctions that preserve the status quo and peace of all parties concerned are all subject to proper litigation and judgment under the Texas Family Code.

Read more on Cohabitation and Domestic Partnership Agreements in Texas

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