After California, Gay Couples Still Face Legal Thicket; “Don’t Sue!”

[WSJ_law_blog]

Same-sex couples have won the battle in California, but the war is far from over. That’s the message of today’s WSJ article, penned by Nathan Koppel, as well as a joint-advisory put out today by a coalition of gay rights organizations, entitled “Make Change, Not Lawsuits.”



Kate Kendell, executive director of the National Center for Lesbian Rights, celebrates as she holds a copy of the court order outside of the California State Supreme Court building in San Francisco, May 15, 2008, after the Court ruled in favor of the right for same sex couples to wed. (Credit: AP/Paul Sakuma)


“Next week,” begins the WSJ piece, “same-sex couples across the country who want to marry will be welcomed in California. But what happens if they later want to divorce? . . .That is one of the many legal issues that could confront California newlyweds who return to home states where same-sex marriages are prohibited.” Other tricky issues might include employee benefits, bankruptcy filings and inheritance rights.

Here’s why: Unlike a Massachusetts ruling a few years ago, the California ruling last month allowing same-sex marriages in California will permit almost any out-of-state couples to wed there. But non-California couples may return home to decidedly unfavorably legal landscapes. For instance, to wind down a relationship, writes Koppel, same-sex couples could have to navigate a process that forces them to appear in three different courts, including a civil court that treats the separation as a business breakup. Mitchell Katine, an attorney who handles same-sex separations, says: “It’s not fair to parties to have their relationship of 20 years treated like a breakup of two people who operated a Kinko’s.”

The joint-advisory issued today by nine gay advocacy groups — including the ACLU, Lambda Legal and National Center for Lesbian Rights — hails the California decision, but discourages same-sex couples from asserting their new status elsewhere for fear that doing so may lead to unfavorable precedent. “Pushing the federal government before we have a critical mass of states recognizing same-sex relationships or suing in states where the courts aren’t ready is likely to get us bad rulings,” says the statement. “Bad rulings will make it much more difficult for us to win marriage, and will certainly make it take much longer.”