Posts Tagged ‘same sex marriage’

Former Michigan Solicitor General John Bursch making arguments to, from left, Justices Sonia Sotomayor, Stephen Breyer, Antonin Scalia, Ruth Bader Ginsburg, Samuel Alito Jr. and Elena Kagan. (Dana Verkouteren/AP)June 26, 2015, was a landmark day for marriage equality in the United States. On this day, the U.S. Supreme Court declared that, in accordance with the Fourteenth Amendment of the U.S. Constitution, all states must both license a marriage between two people of the same sex and recognize any same-sex marriage between two people which was lawfully licensed in another state. Massachusetts was the first state in the Union to declare same-sex marriage legal; in fact, Massachusetts Supreme Judicial Court’s former Chief Justice Margaret H. Marshall wrote in the 2003 opinion, “The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens.”

The case before the Court was Obergefell v. Hodges, a case involving fourteen same-sex couples and two men whose same-sex partners had deceased, and four states, Ohio, Kentucky, Michigan and Tennessee, which had laws defining marriage as the union of one man and one woman. The case rested on two fundamental issues: 1) does the Fourteenth Amendment require states to license marriages between two people of the same sex, and 2) does the Fourteenth Amendment requires states to recognize same-sex marriages performed and licensed in another state.

The 5-4 majority decision, written by Justice Anthony Kennedy, answered “yes” to both of these questions. In his decision, Justice Kennedy discussed the history of marriage as an institution (including the antiquated but once legal definition of “coverture” whereby a married man and woman were seen by the state as a single, male-dominated unit) and the development of gay and lesbian rights over the past decades. The decision concluded that marriage is a fundamental right applying equally to same-sex couples as to heterosexual couples. In reaching this conclusion, Justice Kennedy referred to four basic principles, writing “Four principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples,” summarizing these principles as follows:

  1. The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.
  2. A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.
  3. A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.
  4. Finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order.

“It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality,” wrote Kennedy. Therefore, the decision concluded, same-sex couples may not be denied the fundamental right to marry, and by extension, this means that same-sex couples may marry in all states, and all states must recognize a lawful same-sex marriage performed in another state.

As regards divorce, the question of where same-sex couples can legally divorce is no longer an issue. Previously, same-sex couples who had married in a state where same-sex marriage is legal but had moved to a state where it was not didn’t necessarily have access in their resident state to bring a divorce action, the theory being that there could be no same-sex divorce if the marriage was not legally recognized to begin with. But one result of the Supreme Court’s ruling is that now there’s a fundamental right to a divorce in every state as well as to marriage. This in turn will help same-sex spouses fighting for support rights.

Commenting on the judgement, Margaret H. Marshall said, “Today I am elated … because the Supreme Court has affirmed that same-sex coples in all 50 states have ‘equal dignity in the eyes of the law.'”

custody rights of same sex couplesAs marriage equality continues to proceed in the USA, and especially here in Massachusetts, the first state to legalize same sex in the nation, many issues previously considered only as mother/father, heterosexual in nature now must be considered from the perspective of same sex couples. This came to light as regards the custody of a non-biological, same sex parent in the case of Della Corte v. Ramirez a little over two years ago. In this case, the biological mother, Gabriella Della Corte, argued that her ex-spouse had no parental or custodial rights because she was not the father of the child, who was born through artificial insemination. Angelica Ramirez, her spouse, argued that she indeed was the parent of the child and should be granted custody.

The court found in favor of Ramirez, granting her joint custody of the child, stating in their ruling that Ramirez was the legal parent of the minor child. This sets a precedent in Massachusetts, establishing that as regards paternity, custody, and visitation, there is and should be no difference between heterosexual and same sex parents. This follows Massachusetts law that, regardless of gender, marriage carries the same rights for both parties. Therefore all laws which reference “husbands” or “wives” to be interpreted simply as “spouses,” and that Massachusetts family court proceedings should make no distinction based upon the gender of the parties, but rather paternity, custodial, and visitation rulings should solely reflect the best interests of the children involved.

The information contained in this blog is for educational purposes only and is not legal advice. The use of this Blog does not create an attorney/client relationship between you and the Law Offices of Barry R. Lewis. If you are considering divorce or if you are involved in any legal matter, you should hire an attorney.

Massachusetts Divorce and Family Law
Attorney Barry R. Lewis — Divorce Law Specialist
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