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Argentina & Iceland approve same-sex marriages

July 26th, 2010 by Joseph William Singer

On July 15, 2010, the Argentine Senate voted to approve same-sex marriages, adding its voice to a similar bill approved in May by the lower house. Because President Cristina Fernandez de Kirchner supports the bill, it will become the law. The Parliament in Iceland unanimously approved a similar bill (by a vote of 49-0) on June 12. Argentina and Iceland join the Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, and Portugal in providing full marriage rights for same sex-couples in addition to the states of Massachusetts, Iowa, Connecticut, Vermont, New Hampshire and the District of Columbia, although these state-law based marriages are not recognized by the federal government in the United States because of federal Defense of Marriage Act. read article

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Same-sex marriage in the District of Columbia

March 4th, 2010 by Joseph William Singer

Beginning March 4, 2010, same-sex couples may apply for a marriage license in Washington, D.C. and get married after the requisite waiting period. read article. The D.C. City Council passed the Religious Freedom and Civil Marriage Equality Amendment Act which allows same-sex marriage. See D. C. Act 18–248; 57 D. C. Reg. 27 (Jan. 1, 2010). In addition, the Attorney General of Maryland recently announced that Maryland would recognize same-sex marriages performed elsewhere since nothing in Maryland law precluded such recognition. On March 2, 2010, Chief Justice Roberts refused to issue a stay preventing the law from going into effect. Jackson v. District of Columbia Board of Elections and Ethics, No. 09A807, 559 U.S. — (Mar. 2, 2010).

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Will provision disinheriting grandchildren who married non-Jews held not to violate public policy

October 8th, 2009 by Joseph William Singer

On September 24, 2009, the Illinois Supreme Court upheld the provisions of a will disinheriting the decedent’s grandchildren for marrying non-Jews. In re Estate of Max Feinberg, 2009 WL 3063395 (Ill. 2009).

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Does a same-sex couple have to move back to Massachusetts to get divorced?

October 3rd, 2009 by Joseph William Singer

A judge in Texas has allowed a couple married in Massachusetts to get divorced in Texas even though Texas law does not recognize the validity of same-sex marriages. The couple was married in Massachusetts but then moved to Texas when one of them was transferred by his company. They decided to divorce after moving to Texas. If the Texas courts cannot grant the divorce, then one of them would have to move back to Massachusetts and live there for a full year before a divorce could be granted. If they want a Massachusetts court to order equitable distribution of the property acquired during the marriage, both would have to move back to Massachusetts. To avoid this result, Texas judge Tena Callahan ruled that it violated the equal protection clause for Texas not to recognize the validity of the Massachusetts marriage. The Texas attorney general has vowed to appeal to overturn the ruling.  read article read 2d article

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Same sex marriage

September 20th, 2009 by Joseph William Singer


Hawai’i came close to recognizing same-sex marriages in a 1993 decision called Baehr v. Lewin, 852 P.2d 44, 59 (Haw. 1993), in which the court held that denying individuals the freedom to marry others of the same sex presumptively constituted sex discrimination in violation of the equal protection clause of the Hawai’i Constitution. However, that route is now closed by a state constitutional amendment. Haw. Const. art. 1, §23. A similar decision in Alaska, Brause v. Bureau of Vital Statistics, 1998 WL 88743 (Alaska Super. Ct. 1998), was similarly preempted by constitutional amendment. S.J. Res. 42, 20th Leg., 2d Legis. Sess. (Alaska 1998) (passed Nov. 3, 1998).

The Supreme Court of Vermont held, in Baker v. State of Vermont, 744 A.2d 864 (Vt. 1999), that the “common benefits” provision of the Vermont Constitution requires the state to grant same-sex couples the legal incidents of marriage, whether or not the state chooses to call such relationships “marriages.” Implementing this constitutional mandate, the Vermont legislature passed and the Governor signed a bill allowing “civil unions” but not “marriages” between same-sex partners. See Vt. Stat. tit. 15, §§1201-1206. Although there is no residency requirement to enter a civil union, there is a one-year residency requirement to bring a court action to dissolve a civil union. Connecticut also passed legislation authorizing civil unions for same sex couples. Conn. Pub. Act 05-10 (Jan. 2005), 2005 Ct. S.B. 963, 2005 Conn. Legis. Serv. P.A. 05-10 (S.S.B. 963) (WEST). California and New Jersey passed domestic partnership legislation that allow the creation of legal relationships that entail most but not all the rights and obligations associated with marriage. Cal. Fam. Code §§297–299.6; N.J. Stat. §26:8A–1 to –12. New Jersey subsequently passed a civil union statute after the New Jersey Supreme Court ruled in Lewis v. Harris, 908 A.2d 196 (N.J. 2006), that same-sex partners are constitutionally entitled to the same rights as opposite-sex couples. N.J. Stat. §37:1-28 to 1-36. Civil unions or domestic partnerships in some form for same-sex couples are now recognized in some form in California, the District of Columbia, Hawaii, Maine, Maryland, Oregon, New Hampshire, New Jersey, Vermont and Washington.

On November 18, 2003, the Massachusetts Supreme Judicial Court held in the case of Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2004), that barring individuals from marrying each other solely because they were of the same sex violated the state constitutional guarantees of liberty and equality. Chief Justice Margaret Marshall wrote that the “Massachusetts Constitution affirms the dignity and equality of all individuals” and that “[i]t forbids the creation of second-class citizens.” Id. at 948. See also Opinion of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004) (confirming that granting same-sex couples the right to civil unions but not civil marriage would violate the state constitution because it would confer a kind of second-class status to such couples). The Commonwealth of Massachusetts had defended limiting marriage to male-female couples on the grounds that marriage provided a favorable setting for procreation, that it ensured the optimal setting for child rearing, and that it preserved scarce state resources. The court found none of these goals constitutionally adequate, given the fact that child rearing often occurs outside traditional marriages and that the ability to procreate was never a prerequisite to marriage. It gave the legislature six months to alter the marriage laws in a manner consistent with its opinion. When that did not happen, same-sex couples began marrying in Massachusetts on May 17, 2004.

In 2008, by closely divided 4-3 votes, the Supreme Courts of California and Connecticut held that their state constitutional rights to equal protection of the laws grant same-sex couples the same right to marry as is enjoyed by opposite-sex couples. In re Marriage Cases, 183 P.2d 384 (Cal. 2008); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008). The Connecticut Supreme Court held that legal classifications based on sexual orientation are subject to intermediate scrutiny as a quasi-suspect classification while the California Supreme Court held that they are subject to strict scrutiny. The California court further held that the right to marry is a basic civil right whose denial impinges upon same-sex couples’ fundamental privacy interests in having official family relationships accorded equal respect and dignity and that no compelling state interest justified the differential treatment of same-sex and opposite-sex couples. Both courts ruled that that existing statutory provisions recognizing civil union or domestic partnership arrangements for same-sex couples were not equivalent to laws recognizing opposite-sex civil marriages. Accord, Opinions of the Justices, 802 N.E.2d 565 (Mass. 2004)(civil unions not equivalent to civil marriages). However, the California decision was overturned on November 4, 2008 when the voters approved Proposition 8 amending the California Constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Const. art. I, § 7.5 (added Nov. 4, 2008). Litigation is proceeding to determine whether this constitutional amendment retroactively invalidates the 18,000 same-sex marriages that took place in California between the time when the marriage right was extended to same-sex couples and the date when the marriage right was revoked. In contrast, same-sex couples began marrying in Connecticut on November 12, 2008.

As of May 14, 2009, in addition to Massachusetts and Connecticut, the states of Iowa, Maine, New Hampshire, and Vermont also now recognize same sex marriage. The Iowa Supreme Court ruled on April 3, 2009 that denial of the right to marry someone of the same sex violated the equal protection clause of the Iowa Constitution. Varnum v. Brien, 2009 WL 874044 (Iowa 2009). And on April, 7, 2009, without prompting by a court, the Vermont legislature passed a statute recognizing same-sex marriage, overriding the Governor’s veto. That law took effect on September 1, 2009. 2009 Vt. Act 3; 2009 Vt. S. 115. Maine Governor John Baldacci signed a same-sex marriage bill passed by the legislature on May 6, 2009,  2009 Me. Laws 82, and Governor John Lynch signed such a law for the state of New Hampshire on June 3, 2009, 2009 N.H. Laws ch. 59. The Maine statute was repudiated and overturned by the voters on Nov. 3, 2009, again making same-sex marriage unlawful in Maine.

Same-sex marriage is recognized in Belgium, Canada, The Netherlands, Norway, South Africa, Sweden, and Spain. Civil partnerships with nearly the same legal status as marriage are recognized in Iceland, and the United Kingdom.

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