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The current legal status of homosexual relationships

In preparation for last Friday’s interview on WCBD I created an extensive outline of topics that might come up for discussion.  In that five minute interview few of the items from my outline made it to television.  However I hope someone finds this research interesting or useful.

Currently the legal status of same sex relationships in South Carolina is controlled by S.C. CONST Art. XVII, § 15, which reads:

A marriage between one man and one woman is the only lawful domestic union that shall be valid or recognized in this State.  This State and its political subdivisions shall not create a legal status, right, or claim respecting any other domestic union, however denominated.  This State and its political subdivisions shall not recognize or give effect to a legal status, right, or claim created by another jurisdiction respecting any other domestic union, however denominated.  Nothing in this section shall impair any right or benefit extended by the State or its political subdivisions other than a right or benefit arising from a domestic union that is not valid or recognized in this State.  This section shall not prohibit or limit parties, other than the State or its political subdivisions, from entering into contracts or other legal instruments.

This provision doesn’t allow same sex marriages to be performed in this state.  It prohibits the recognition of same sex marriages performed in other states or countries.  Same sex couples who married elsewhere cannot file for divorce here or file as married on state income taxes.  However this article doesn’t prohibit same sex couples from entering contracts or agreements that mimic marital rights.  Such rights can include inheritance, health care decisions, and adoption.

There are methods for obtaining marriage-like benefits for homosexual couples in South Carolina but they are typically not handled by family law attorneys because family court does not recognize same sex relationships.  An attorney who does wills and health care powers of attorney can use such documents to offer a gay couples some, but not all, of the protections of marriage. I am told by some of my family law colleagues whose practices emphasize representing homosexuals that some family court judges are authorizing adoptions in which one half of a gay couple adopts his or her partner’s biological child.  I am also told that some family court judges will allow both halves of a same sex couple to adopt a child that is not the biological child of either partner, though some judges want such adoptions to be handled sequentially rather than as part of one action.  The result of such adoptions is that the child has two mothers or two fathers.  Currently no South Carolina case law or statute specifically prohibits or authorizes such two-mother or two-father adoptions.

South Carolina’s refusal to recognize same sex relationships extends into the protection from domestic abuse code.  To obtain the protections of that code, a couple must be “Household members,” which S.C. Code § 20-4-20(b) limits to a spouse; a former spouse; persons who have a child in common; and a male and female who are cohabiting or formerly have cohabited.  It does not include same sex couples unless they have a child in common.

There are current court challenges in other states to prohibitions on same sex marriage and the Federal Defense of Marriage Act.  The most prominent challenge is Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), which argues that California’s constitutional prohibition against same sex marriage violates equal protection.  The February 07, 2012 decision from the Ninth Circuit Court of Appeals found that California’s constitutional amendment barring same sex marriages was itself a violation of the United State’s Constitution’s Equal Protection Clause U.S.C.A. Const. Amend. 14.  It held the amendment was not rationally related to California’s interest in childrearing and responsible procreation.  It held the amendment was not rationally related to California’s interest in “proceed[ing] with caution” when considering changes to the definition of marriage.  It held the amendment was not rationally related to California’s interest in protecting religious liberty. It held the amendment was not rationally related to California’s interest in preventing children from being taught about same-sex marriage in schools.  It held tradition alone could not serve as justification for taking away right from gays and lesbians to use designation of “marriage” that already had been granted.

However its holding was narrower than the district court’s holding from that same case, Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D.Cal.,2010).  The district court held that the ban on same sex marriage was itself a violation of equal protection. In contrast, the Court of Appeals held that it was because California had previously authorized same sex marriages, and then taken that right away, that the constitutional amendment to prohibit them was unconstitutional.

I expect the Supreme Court may eventually resolve issue of whether refusals to recognize same sex marriages violate equal protection.  It is quite possible that the current Supreme Court would find denying right to same sex marriage violated due process and equal protection.  The four liberal justices [Ruth Bader Ginsburg; Stephen G. Breyer; Sonia Sotomayor; Elena Kagan] would likely find an equal protection violation.  I suspect Justice Anthony M. Kennedy may agree that this is an equal protection violation.  Kennedy wrote the majority opinion in Lawrence v. Texas, 539 U.S. 558 (2003) which found it violated due process clause to criminalize homosexual sodomy.  He wrote majority opinion in Romer v. Evans, 517 U.S. 620 (1996) holding that a provision of the Colorado Constitution that prohibited all legislative, executive, or judicial action designed to protect homosexual persons from discrimination violated equal protection.  He may well be sympathetic to an argument that homosexual couples should have the same rights of marriage that heterosexual couples enjoy.

In 1996 Congress enacted the Defense of Marriage Act (DOMA), 28 USC § 1738C, which reads:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

This act is currently subject to myriad challenges all over the nation in almost every area of law in which being married confers advantages to a spouse.  There are challenges over bankruptcy rights, military benefits, spousal benefits for federal employees, federal taxes, and immigration.  Even before Obama announced his support for same sex marriage, his administration indicated it was no longer willing to defend the act, which it considers unconstitutional.

There are legal challenges being brought when one state refuses to recognize another state’s same sex marriage. The United States Constitution, Art. IV, § 1, states, “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.”  DOMA and  S.C. CONST Art. XVII, § 15 do not require South Carolina to recognize gay marriages from other states or countries. Does this violate the Full faith and credit clause?  The United States Constitution trumps United States code and state constitutions.  However there is public policy exception to Full faith and credit clause:

[T]here are some limitations upon the extent to which a state may be required by the full faith and credit clause to enforce even the judgment of another state in contravention of its own statutes or policy. And in the case of statutes…the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events.  Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U.S. 493, 502 (1939).

It is unclear whether DOMA and  S.C. CONST Art. XVII, § 15 would fall under the public policy exception or whether they violate the Full faith and credit clause. That is ultimately a decision the Supreme Court will probably have to make.

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