Can same-sex couples
marry in California?
Yes. On May 15, 2008, the California Supreme
Court ruled that barring same-sex couples from
marriage is unconstitutional. Beginning June 17,
same-sex couples will be able to marry in
California. On
Nov 4, 2008 that basic right was stripped away
by a majority vote.
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Can the
court’s decision be appealed to the U.S. Supreme
Court?
No. The decision was based on the California
Constitution, and the California Supreme Court
has the final say in cases brought under the
California Constitution.
Does the
court’s decision affect the rights of
heterosexual couples?
No. The rights of heterosexual couples to marry
and the rights and responsibilities of those who
are married remain exactly the same. The
decision simply enables same-sex couples to
marry.
Does this
ruling require religious groups or clergy
members to marry same-sex couples?
No. The court’s decision said the government may
not discriminate against same-sex couples by
barring them from civil marriage – a legal
institution established and regulated by the
government. Religious groups and clergy members
remain free to recognize or refuse to recognize
marriages within their religion as each sees
fit. While some faiths do not permit same-sex
couples to marry within that faith, a growing
number do. As a result of the court’s decisions,
same-sex couples may choose to be married by a
clergy person in a welcoming community of faith
or by a civil servant such as a judge or
authorized deputy.
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For same-sex
couples in binational relationships, will
getting married in California permit a non-U.S.
citizen to gain legal permanent residence in the
U.S.?
No. Immigration is governed exclusively by
federal law, which currently discriminates
against married same-sex couples by refusing to
recognize their marriages for purposes of any
federal rights or benefits. A heterosexual
person who marries a non-U.S. citizen can
petition to have his or her spouse become a
permanent legal resident; however, current
federal law does not provide the same right to a
lesbian, gay, or bisexual person who is married
to a same-sex spouse from another country.
Same-sex couples in binational relationships
should consult an immigration attorney before
getting married in California or another
jurisdiction.
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Will couples
who are registered domestic partners in
California automatically become married?
No. Couples who are registered domestic partners
are free to decide whether or not they wish to
marry. Those who do wish to marry must go
through the formal legal steps required for any
couples in California to legally marry.
Will domestic
partnerships in California continue to exist?
Yes. Domestic partnerships still exist under
current California law.
In 2004, many
couples were married in San Francisco, and the
California
Supreme Court subsequently held that those
marriages were invalid. Does the court’s new
decision mean that those marriages will now be
legally recognized?
No. Those marriages remain invalid, and those
couples would have to remarry.
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If my partner
and I were legally married in Massachusetts or
Canada, will our marriage now be recognized in
California?
Yes. When the court’s ruling
goes into effect, couples who legally married in
another jurisdiction will be recognized as
married in California as well.
Should we
get married now?
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.
Important Note: Bi-national
couples in which one member does not have
permanent legal resident status in this country
and anyone serving in the U.S. military should
consult with an attorney with expertise in these
areas of law before getting married.
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If we’re
already in a registered domestic partnership in
California, do we have to dissolve our domestic
partnership before we can marry?
No. The California domestic partnership statutes
permit an individual to be both married and in a
registered domestic partnership, so long as it
is to the same person.
Is there
any reason for couples who marry to also remain
in a domestic partnership?
Yes. Being in a registered domestic partnership
may protect you if you travel or move to another
state that will recognize a domestic partnership
but not a marriage.
Can
out-of-state couples marry in California?
Yes. There is no residency requirement to marry
in California.
If my
partner and I are from another state and marry
in California, will our marriage be valid in our
home state?
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.
Marriage is a serious legal decision, and
same-sex couples face additional challenges and
questions because of continuing discrimination
against married same-sex couples by the federal
government and many states. We urge couples who
are considering getting married in California to
proceed with caution. Before getting married in
California, you should educate yourselves about
the law in your state and, if possible, consult
an attorney about the best way to protect your
relationship based on your circumstances.
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Will the
federal government recognize marriages of
same-sex couples who marry in California?
No. Under current federal law, the federal
government does not recognize marriages of
same-sex couples. This means that married
same-sex couples currently do not have any of
the rights, benefits, or protections that
federal law gives to married heterosexual
couples, such as the ability to file joint
federal income taxes or receive federal spousal
benefits through social security or other
federal programs.
Can we file
lawsuits if our marriages are not respected in
other states or by the federal government?
If you feel you have been discriminated against,
please contact one of the LGBT legal
organizations listed on this document. We can
help you figure out what options you have to
protect your rights. Some types of unfair
treatment can be the basis of a lawsuit, and
other times the unfairness may not be suitable
for a court to address. Even when litigation is
an option, it is not the only option. It is
always necessary to weigh the chances of success
or failure because bad results in lawsuits can
cause set backs and hurt our entire community.
We want to increase the chances of winning
overall, so it is critical that we work together
to have a carefully planned strategy. Together,
we can win!
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What do we
have to do to marry in California?
First you need to get a marriage license from
the office of the Registrar-Recorder/County
Clerk of any California county. You can get a
license application from most counties’ websites
and complete it in advance, or complete it in
the county clerk’s office. Both of you must go
together to the county office and present a
government-issued picture ID and proof that you
are over 18 years old. (If either or both is
younger than 18, different procedures apply.)
You’ll need to pay the license fee, which varies
by county but generally is less than $100. The
license will be valid for 90 days and your
marriage can be performed anywhere in
California. Neither a blood test nor a health
certificate is required. Call ahead or visit the
county’s website to learn the hours and
locations of the county offices that issue
licenses.
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Who can
marry us?
In California, clergy members, active and
retired judges and court commissioners, and the
Commissioner and Deputy Commissioners of Civil
Marriages are authorized to perform legal
marriages. The Commissioner and Deputy
Commissioners of Civil Marriages perform
marriage ceremonies by appointment at designated
county offices. There is a fee, which generally
is less than $50. Call ahead or visit the county
website for more information.
Any couple wishing to marry can also have a
friend deputized to perform their marriage
ceremony through a county “Deputy Commissioner
for a Day” program. If you choose this option,
you will need at least two months advance notice
and the person to be deputized to perform your
ceremony will have to pay a fee and visit the
county office in person to be sworn in. Visit
the county website to see if your county has
this program. If it does not, check whether a
nearby county will deputize an out-of-county
resident.
The person who performs your ceremony must
complete and sign your marriage license after
the ceremony. In addition, at least one witness
18 years old or older must sign the marriage
license.
The license then becomes your marriage
certificate, which has to be returned promptly
to the county for filing.
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What
happens if we marry in California and then wish
to divorce?
The only legal way to end a marriage is to get a
divorce. In order to divorce in California, at
least one of the parties to the marriage must be
a resident of California for at least six months
and of the county in which the divorce is filed
for three months before filing a divorce
petition. If you move from California to another
state, or if you already live in another state,
getting a divorce could be difficult. Currently,
the only state other than California in which
same-sex married couples have a clearly
established right to divorce is Massachusetts;
however, Massachusetts has a one-year residency
requirement before a person can petition a
Massachusetts court for a divorce. New York law
appears to respect same-sex couples’
out-of-state marriages even though same-sex
couples cannot yet marry in that state. So,
married gay and lesbian couples should be able
to petition for divorce in New York; however,
New York also has a residency requirement for
divorce. States with civil unions or
comprehensive domestic partnerships, like
Connecticut, New Hampshire, New Jersey, Oregon,
and Vermont, also may allow married same-sex
couples to divorce, but each of those states has
a one-year residency requirement. That means
that at least one spouse must be a resident of
the state for a year prior to the divorce.
Couples who are unable to obtain a divorce
remain legally married. Therefore, being unable
to divorce may cause serious legal problems and
complications for same-sex couples who find
themselves in this situation.
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Could
right-wing forces take away the freedom to marry
at the ballot box in California?
Yes. 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.”
We agree with Governor Schwarzenegger that these
outsiders are wasting their time and money
trying to turn California into a state that
would use its Constitution to take away civil
rights and hurt families. But it will take every
one of us to stop this antifamily initiative.
For more information about how to get involved,
contact Equality For All at
www.EqualityForAll.com.
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What can we
do to help preserve the freedom to marry we have
just won?
We urge you to get involved today! For more
information about how you can help, please
contact Equality For All at
www.EqualityForAll.com. Now that we have won
this victory, all residents of California are
better off, because strengthening any group of
families makes stronger communities for
everyone. All people who value families and
fairness have a stake in preserving the freedom
to marry for lesbian and gay couples. We cannot
afford to wait, please act now.
source:
www.eqca.org
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