By Mario Sullivan
Mario Sullivan is an associate at the Law Offices of Peter Anthony Johnson, P.C., practicing in general litigation and can be contacted at
Same-Sex Marriage
The most notable debate has revolved around the “M” word. Just this past November, we were witness to three more states amending their constitutions to prohibit same-sex marriage, California included. Only two states currently provide same-sex couples with the right to marry: Massachusetts and Connecticut. New Jersey, Vermont, Oregon, Washington, Hawaii, and Maine provide all or most of the rights afforded by marriage in the form of civil unions or domestic partnerships; however, they still fall short of full recognition. Only five states have neither a statute nor a constitutional provision prohibiting same-sex “marriage”: Massachusetts, New Jersey, New Mexico, New York, and Rhode Island. Although there have been some accomplishments, currently thirty states have constitutional amendments that ban same-sex marriage and forty states that have statues prohibiting the same. Without the recognition of same-sex marriage in every state, LGBT couples will continue to have their relationships viewed as second class, and they will face issues when traveling from states that do recognize same-sex marriage to those that don’t, including, child custody and visitation rights, hospital visitation, medical decision, benefits, and many other rights and benefits that heterosexual married couples are afforded.
In California, the LGBT community continues to fight for their rights. In a stunning decision the California Supreme Court held that same-sex couples had a fundamental right to marry. Between June 12, 2008, and November 4, 2008, more than 18,000 same-sex couples married in California. However, same-sex marriages in California were put to an end with the passage of Proposition 8 during the November 2008 election, which amended the California constitution to define marriage as between a man and a woman. Under California law, only a simple majority was required to amend the constitution by simple ballot. Recently, six cases were filed with the California Supreme Court arguing that Proposition 8 is invalid because it improperly attempts to undo equality and deprives the courts of their role of protecting the rights of minorities. Under the California constitution, an amendment that deprives such rights cannot be done by a simple ballot measure like Proposition 8 and requires a stricter procedure.
LGBT workers continue to face discrimination in their employment and struggle as to whether they should be open about their sexuality with their employers and colleagues. In 2005, 39 percent of LGBT workers reported experiencing some form of harassment or discrimination in the past five years. Unfortunately, there are no federal laws that prohibit discrimination against LGBT workers in the workplace, and only a handful of states ban such discrimination. If a client believes that he or she is a victim of such discrimination, look to your local state, municipality, and city laws. In addition, you can contact local and national LGBT organizations for information on laws in your state or for other legal theories.
When seeking to adopt, LGBT individuals and couples face tremendous hurdles that heterosexual couples do not. U.S. adoption laws remain various and complex concerning the right of LGBT individuals and couples to adopt. Many states do not allow adoptions by any unmarried couples, which automatically precludes same-sex individuals and couples from adopting in those states; a few states, including Florida, Mississippi, Nebraska, Oklahoma, Utah, Virginia, and recently Arkansas, have enacted laws that specifically bar LGBT individuals or couples from adopting. With these hurdles and inconsistencies, LGBT individuals and couples face many legal issues in dual adoption, recognition of their parental rights in states that do not recognize or specifically ban LGBT adoption, obtaining custody or visitation, and being foster parents.
If a client comes into your office and wants to adopt, do your research! To properly advise clients seeking to adopt or attempting to obtain other parental rights, you should familiarize yourself with the adoption laws and Defense of Marriage Act (DOMA) in your state. You also can contact local and national LGBT organizations for tips and information.
Domestic Violence
Finally, recent studies have shown that LGBT individuals or couples experience domestic violence at the same rate as heterosexual individuals or couples. However, our current justice system, police, and other domestic violence agencies are not properly trained and sometimes not properly equipped to handle the issues facing LGBT victims of domestic violence. There are few or no shelters for gay men who are victims of domestic violence. Although there are more shelters for women, they only prohibit access to men, which can allow a woman batterer to easily gain access to her victim.
There are many more rights that the LGBT community has yet to obtain and numerous issues that they face. It will be a long road to reaching true equality, but we will continue to fight until that day arrives. To join the fight for equality, to donate, and for more information please visit:
Back to Top