Same-sex marriage and the law

Brangelina told the world that they wouldn’t get married until everyone could get married, including people of the same sex.  Based on their engagement and soon-to-be wedding rumors, it sounds like they can’t wait that long.

In 1996, the Defense of Marriage Act (DOMA), 1 USC §7, was passed by the Federal Government, and it states the following:  “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.”  The Federal government cannot recognize same-sex marriages and states do not have to legitimize same-sex marriages that occurred in another state. 

On October 18, 2012, the United States Court of Appeals, Second Circuit, struck down DOMA, holding that it violates the equal protection clause in the Constitution, being only the second Federal court to do so.  The Supreme Court of the United States will be hearing two cases on same-sex marriage in 2013, with an anticipated decision in the summer, just in time for all of the mega-popular summer weddings of course.

While some states have passed laws allowing for same-sex marriage, Michigan isn’t one of them.  Several states will issue marriage licenses to same-sex couples, or provide for a legal union similar to marriage for those of the same gender.  Various companies and employers will also provide health care benefits to “domestic partners,” in an effort to conform to the rapidly changing public opinion to recognize the validity of same-sex relationships.

So what’s the harm in letting same-sex couples get hitched?  As the saying goes, let them be as miserable as the rest of us.  Frankly, from a family law legal perspective, there are more problems with not letting same-sex couples marry. 

Let’s say a lesbian couple decided to have a child, and one of the partners becomes pregnant after artificial insemination.  She is listed on the birth certificate as the mother.  And the other mother?  Well, she’s not on the certificate, or Affidavit of Parentage…or anywhere else.  So the couple continues their relationship for years, and then decides to break up.  Well, in Michigan, what rights does the non-biological mother have to the minor child that she’s raised as her own?  None.  She can’t go out and file a paternity or custody claim like any boyfriend who’s fathered a child with his ex-girlfriend, because she’s not a biological parent.  She’s also not the husband of the bio mom, and their child was not born during any legally recognized marriage.  Further, same-sex couples cannot legally adopt a child together in Michigan. 

The Michigan Supreme Court has not recognized custody rights for gay, unmarried individuals who are not biologically related to the child at issue, leaving the non-biological partner without any legal remedies.  Some ex-partners may agree to a joint custody arrangement, with parenting time, support, etc. and simply never file any papers with the courts, which happens in both same-sex and heterosexual relationships that go awry.  However, like most break ups, things are not amicable all the time, leading to one parent unfairly withholding the child from the other. 

If you’re the other half of a failed same-sex relationship, you may be denied the opportunity to continue to raise your child, which can have a catastrophic impact on that child’s physical, emotional and mental wellbeing.  It appears that the child’s best interests, which are to be the primary focus of the court in deciding custody and parenting time, only applies to heterosexual relationships.