A same-sex marriage is a legally recognized marriage of two individuals who identify as the same sex as each other, such as a woman marrying a woman or a man marrying a man. In the beginning, same-sex marriages were only permitted in Massachusetts and Oregon.

Currently, same-sex marriage is legal in all fifty states in the United States, as well as in the District of Columbia. In addition, if a same-sex married couple moves from one state to another, their married will be recognized by both states.

What is Obergefell v. Hodges: Legalizing Same-Sex Marriage?

The laws surrounding same-sex marriage and the legal rights of same-sex couples are constantly changing. Obergefell v. Hodges is a United States Supreme Court case that was decided on June 26, 2015.

In Obergefell v. Hodges, the Court held that denying the fundamental institution of marriage to same-sex couples violates the Fourteenth Amendment to the United States Constitution. Pursuant to the Fourteenth Amendment, states are required to provide equal protection of the laws for all of its citizens. The Fourteenth Amendment also guarantees that no individuals should be deprived of life, liberty, or property without due process of law.

The Obergefell ruling had significant effects on many areas of law, including and especially family law. Prior to this decision, some states had offered same-sex marriage while other states provided alternatives to marriage such as civil unions and domestic partnerships.

However, the rights of these alternatives were not consistent across all of the states. In addition, some states did not recognize partnerships and marriages that were formed in other states.

Since same-sex marriage is now currently broadly legal, many of these rights are granted in all states. Some legal rights which are now granted to same-sex married couples include:

  • Property rights;
  • Employee benefits;
  • Tax benefits;
  • Family leave, medical leave, and hospital visitations; and
  • Divorce.

Same-sex couples who get married now have the same or similar legal rights as heterosexual married couples with regard to property. Property rights typically include protections for the spouses in the event of a divorce, legal separation, or death. Additionally, married same-sex couples are not able to hold property together and may enjoy other property benefits related to marriage, such as marital estate planning resources.

Same-sex couples are not permitted to be included on the medical plans of their spouses in situations where one spouse carries insurance coverage as a benefit of their employment. Same-sex spouses are also now able to benefit from a variety of retirement savings plans and arrangements, such as 401(k)s.

Same-sex couples can benefit from both federal and state tax rules which apply to couples who are married. For example, spouses can now file their income tax returns jointly instead of separately, as previously required. A surviving spouse is also able to avoid both federal and state taxes in the event of the deal of one of the spouses.

Same-sex married couples now fall under the Family Medical Leave Act (FMLA) with regard to employment leave for caring for a sick spouse. Paternity and maternity leave provisions and benefits also apply to same-sex married couples. Additionally, same-sex married couples now have the legal right to visit their spouses in the hospital.

One issue with previous inconsistent same-sex marriage laws was that some same-sex married couples could often not pursue a divorce in their state of residence. Currently, divorce laws in each state apply equally to both opposite-sex couples and same-sex couples.

What Other Rights Apply to Same-Sex Marriage?

In addition to the rights discussed above, same-sex married couples also have rights such as:

  • Power of attorney and medical power of attorney. These rights include the right to make emergency medical decisions on a spouse’s behalf should they become incapacitated. This also includes the right to enter into contracts, negotiate, and settle matters as if the individual were their spouse;
  • Spousal testimonial privilege. Should a spouse be called to testify against their spouse in court, they may be able to invoke marital privilege in order to avoid testifying without being held in contempt of court;
  • Worker’s compensation rights; and
  • Inheritance rights.

It is important to note that this is not a comprehensive list and there may be other legal benefits which may exist.

Are There Any Legal Rights that are Still Unavailable to Same Sex Couples?

Although the legalization of same-sex marriage has provided many rights and protections to same-sex married couples that did not exist previously, there are still many rights and protections that are enjoyed by heterosexual married couples which are not currently provided for homosexual married couples. These rights, however, are changing and more rights are being provided as time goes on.

How Does Same-Sex Marriage Affect Adoption and Child Custody Matters?

Although there has been some progress for same-sex married couples regarding adoption and child custody matters, there is still a certain lack of legal protection for same-sex married parents who are raising or adopting children.

For example, in a number of states, there is no presumption of parentage for a same-sex married couple. This is due to the fact that the parentage presumption is based on the implicit assumption that both a woman and a man are the biological parents of any children that were conceived during their marriage.

In some states, including Mississippi, joint adoption by a same-sex couple is banned. In other states, a state-licensed, faith-based adoption agency may legally discriminate based on the couple’s sexual orientation.

How Does Same-Sex Marriage Affect Discrimination Laws?

Although same-sex marriage has been legalized, same-sex couples may still face civil rights, including those which involve employment or housing discrimination. For example, in numerous states, it is still legal to fire an individual based on their sexual orientation.

There are also some states which have specifically allowed faith-based organizations to discriminate with regards to the services they provide. For example, in Kansas, the law is broad enough to permit a faith-based homeless shelter to refuse service to same-sex married couples.

What if There are Any Disputes Over Same Sex Couples’ Rights?

A dispute regarding the rights of same-sex couples can be complicated and require legal assistance. This is due to the fact that the laws in many states are still subject to adjustments and changes.

A new court ruling may have effects not just on the individuals involved in current litigation, but also for other couples to follow, especially if it sets a new precedent or guideline. Therefore, legal conflicts and disputes should be handled with the assistance of an attorney who is able to provide guidance on the most current rules and policies of the state.

How Can a Lawyer Help with Same Sex Couples’ Legal Rights?

As previously noted, the rights provided to same-sex couples have recently changed drastically, and are still being changed and adjusted currently. Because of this, it is important to have the assistance of a family lawyer for any same-sex couples legal rights issues you may be facing. Your attorney can review your situation, advise you of the most current laws in your state, and represent you if you are required to appear in court.

It is also important to be aware that same-sex marriage laws can be challenged. Your lawyer can also assist you with planning for your future and ensuring your wishes are carried out, such as passing on your property when you pass away.