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California Same-Sex Couples Who Wed Out-of-State Remain in Limbo
The Recorder
June 23, 2009
Family lawyers representing California same-sex couples who wed out of state before the passage of Proposition 8 are hoping for the best, but bracing for the worst.
Those marriages remain in legal limbo because last month's California Supreme Court ruling that upheld Proposition 8 while letting stand 18,000 or so same-sex unions didn't determine the fate of weddings held by California gays and lesbians in other states or countries.
That issue wasn't before the court, so the justices chose not to tackle it at this time.
"It is fine that couples can assume that they are legally married," Oakland family attorney Frederick Hertz said Friday. "But they should not assume that everyone else will agree with them."
At stake are all kinds of benefits guaranteed to same-sex couples who married in-state between June 16 of last year, when the Supreme Court ruling that opened the door for gay marriage became official, and Nov. 4, when Prop 8 stopped it.
San Francisco family lawyer Deborah Wald, for example, has clients who got married in Massachusetts while visiting family members immediately after last year's marriage ruling became official. One of the women is pregnant and the other spouse wants to make sure the child can be covered by her company's health insurance.
"We all absolutely understood that their marriage would be portable back to California" under the law as it stood when they married, said Wald, who argues that out-of-state marriages must be recognized.
Also up in the air for these couples are tax filing status, inheritance rights, estate-planning decisions and property divisions.
Family law practitioners began speculating about the fate of out-of-state marriages as soon as the high court upheld Prop 8 on May 26. They were disturbed by a one-paragraph footnote in the opinion that said the court was taking no position on those unions.
"None of the petitioners before us in these cases falls within this category," Chief Justice Ronald George's opinion said, "and in the absence of briefing by a party or parties whose rights would be affected by such a determination, we conclude it would be inappropriate to address that issue in these proceedings."
No one interviewed for this story could provide a ballpark estimate of how many California couples have married out of state over the years, but believe it could be in the thousands, what with same-sex weddings available in Massachusetts and seven nations last year.
"I would imagine it's going to be a significant number of people," Shannon Minter, legal director of the San Francisco-based National Center for Lesbian Rights, said Thursday, "because we do know anecdotally ... a lot of couples wanted to go elsewhere to get married [to be] with their families."
Those couples, Minter and others said, acted on the belief that last year's California Supreme Court ruling that struck down a statute limiting marriage to heterosexuals expressly stated that out-of-state, same-sex marriages would be recognized.
Minter, Wald and Courtney Joslin, an acting professor at University of California at Davis School of Law, are part of a group of family attorneys and law professors who issued an 11-page memorandum (.pdf) earlier this month that offers legal grounds for finding the out-of-state marriages valid.
The memo makes the point that treating those out-of-state unions differently than in-state weddings would violate the U.S. Constitution, which requires states to accept marriages performed in other states. It also argues that couples married outside California had no way to protect their rights, because by being legally married elsewhere they were ineligible for marriage or domestic partners in California.
"I'm telling my clients to go forward with a good-faith assumption that their marriage is valid," Wald said.
Family lawyers hope state agencies see the situation the way they do, but would like the state attorney general to provide guidelines in the meantime.
Chief Deputy AG James Humes said Friday that's not likely unless someone sues the state after being denied benefits.
"There's no litigation that we're aware of that involves the state," he added, "and until there is we won't be looking at it directly. We do know that issue is out there."
Until something breaks, Hertz, of Oakland, said he will advise clients to register as domestic partners to avoid future problems in case the state Supreme Court invalidates their marriages. "Given what the court did on Prop 8," he said, "I have no confidence the court will do what is right."
Hertz -- who with Berkeley attorney Emily Doskow has a book coming out soon entitled, "Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions" -- said the issue of out-of-state marriages is driving him and his colleagues crazy.
"Because of this patchwork quilt of incompatible rules," he said, "giving legal advice is incredibly difficult. We are working in an environment of extreme uncertainty."
