The legal landscape surrounding same-sex marriage and same-sex couples’ legal rights is constantly evolving. On June 26, 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges that denying the fundamental institution of marriage to same-sex couples is a violation of the Fourteenth Amendment of the U.S. Constitution.
Under the Fourteenth Amendment, states must provide equal protection of the laws for all of their citizens. It also guarantees that no people should be deprived of life, liberty, or property without due process of the law.
When the Obergefell ruling was issued, it had important effects on many areas of law, especially family law. Before this decision, some states offered same-sex marriage, while other states offered creative alternatives to marriage such as civil union or domestic partnership. However, these rights were not consistent across all the states, and some states would not recognize marriages and partnerships formed in other states.
Now that same-sex marriage is broadly legal, many of these rights are now granted in all states. Some important legal rights that are now granted to same-sex married couples include:
- Property Rights: Same-sex couples who marry now have the same or similar legal rights as heterosexual couples with regard to property. These property rights generally include protections for spouses in the event of divorce, legal separation, or death. In addition, same-sex couples who marry can now hold property together and may enjoy many other marriage-related property benefits, such as marital estate planning resources.
- Employee Benefits: Same-sex couples can now be included on the medical plans of their spouses, in situations where one spouse has insurance coverage as a job benefit. Same-sex spouses can also now benefit from various retirement savings plans and arrangements such as 401(k)s.
- Tax Benefits: Same-sex couples now benefit from both state and federal tax rules that apply to couples during marriage. For example, they can now file their income tax returns jointly instead of separately. Surviving spouses are also able to avoid both state and federal estate taxes in the event of the other spouse’s death.
- Family Leave, Medical Leave and Hospital Visitations: Laws under the Family Medical Leave Act (FMLA) regarding employment leave for caring for a sick spouse now apply to same-sex married couples. Maternity and paternity leave provisions and benefits also apply to these couples. Finally, same-sex married people now unquestionably have the legal right to visit their spouses in the hospital.
- Divorce: One negative outcome of the previous patchwork of same-sex marriage laws was that some same-sex married couples married often could not pursue divorce in their state of residence. Now, divorce laws in each state apply equally to both same-sex and opposite-sex couples.
The legalization of same-sex marriage has granted many rights and protections to same-sex couples that did not exist prior to the past two decades. However, there are still a number of rights and protections enjoyed by heterosexual married couples that are currently not granted to homosexual married couples. These may include:
While there is some progress due to recent court decisions, there is still some lack of legal protection for same-sex parents raising or adopting children. For example, in many states, there is no presumption of parentage for same-sex married couples. This is because a parentage presumption is still based on an implicit assumption that both a man and woman are biological parents of any children conceived during their marriage.
In states such as Mississippi, joint adoption by same-sex couples is still banned. In other states, state-licensed faith-based adoption agencies can legally discriminate based on a couple’s sexual orientation.
There are also concerns that same-sex couples may still face other civil rights issues, such as those involving employment or housing discrimination. For example, in many states it is still legal to fire someone based on their sexual orientation.
There are also several states that have specifically allowed faith-based organizations to discriminate with regard to their services. The law in Kansas is currently broad enough that a faith-based homeless shelter was allowed to refuse service to same-sex married couples.
Disputes over same-sex couples rights can be complex and may require heavy legal assistance. This is because the laws in many states are still subject to change and adjustment. A new court ruling could have effects not just on the couple involved, but for many other couples to follow, if the ruling sets a new precedent or guideline. Thus, disputes or legal conflicts should be handled with the assistance of an attorney who can provide guidance on the rules and policies of that state.
Same-sex couples’ legal rights have recently undergone a drastic change, and they are still subject to many adjustments. If you need legal assistance or have any questions regarding same-sex marriage or other rights, you should consult with a family lawyer in your area. Your attorney can provide you with valuable legal advice, and can also represent you in court if you have a legal dispute.