Marriage in California

In an historic decision on May 15th, 2008, the California Supreme Court ruled that same-gender couples deserve the freedom to marry under state law. The landmark ruling makes California the first state in the nation to give lesbian, gay, bisexual and transgender (LGBT) people full equality.

Marriage is a serious legal and personal commitment that should not be entered into lightly. Before getting married, couples should educate themselves about the legal consequences of marriage, in addition to other considerations.

Same-sex couples also face some additional considerations that heterosexual couples do not face, due to discrimination by the federal government as well as by a number of states. Deciding whether to marry is an important decision for everyone, gay or straight, but lesbian and gay couples have to be prepared for and be willing to take on those additional challenges.

A period of legal uncertainty is likely. For example, if you marry in California, you cannot be certain whether your marriage will be respected if you live in, travel to, or move to a state that has laws or constitutional amendments limiting marriage to heterosexual couples.

In addition, current federal law prohibits the federal government from recognizing marriages of same-sex couples for purposes of the many federal rights and benefits given to married heterosexual couples, such as the right to file joint federal income taxes and the right to social security benefits as a surviving spouse. Being excluded from these federal protections, and often state protections as well, is a serious hardship and can cause significant legal problems.

If you live in another state and get married in California, you will be legally married. However, depending on where you live, your home state may not respect your marriage. Many states have passed discriminatory marriage laws, and in those states, state and local governments likely will not respect your California marriage. But even in those states, it is highly likely that at least some private businesses and other private third parties will respect your marriage – particularly those that already recognize same-sex couples through domestic partnership or a similar system.

On June 2, Secretary of State Debra Bowen announced that the amendment seeking to deny same-gender couples the fundamental freedom to marry, qualified for California’s November ballot.

Because the court based its decision on rights guaranteed by the California Constitution, right-wing groups are trying to amend our state Constitution to eliminate these fundamental constitutional protections and take away the basis for the decision.

These groups, which have received significant funding from out-of-state right-wing organizations, are placing an initiative on the November 2008 ballot that will ask voters to amend the California Constitution to reverse the court’s decision and deny gay and lesbian couples the freedom to marry.

Already, many state leaders are expressing their opposition to this proposed constitutional amendment. For example, in a public statement on April 11, 2008, Governor Schwarzenegger stated that an initiative to amend the California Constitution to ban gay and lesbian couples from marriage was “a waste of time,” adding “I will always be there to fight against that. It will never happen.”

Most legal analysts agree that those who marry prior to November will retain their marriage status even if a constitutional amendment is passed, however unlikely.

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