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Same-Sex Marriage- Where We Are Today & the Work That Still Needs to be Done

After fifty years of marriage equality litigation, same-sex couples around the country are finally able to feel a sense of equality. Although the language within the Constitution of the United States has not changed, it appears progress has been made because of the country’s ability to truly understand same-sex couples and the discrimination to which they have been subjected.

In June 2008, the Supreme Court of California ruled that a law prohibiting same-sex marriages was in violation of the California Constitution. Immediately thereafter, many same-sex couples were married and received marriage licenses in California. However, in November 2008, the citizens of California approved Proposition 8, which banned same-sex marriage, leaving many same-sex couples confused and uncertain about their rights.

In August 2010, the United States District Court ruled that Proposition 8 violated the Due Process and Equal Protection clauses of the United States Constitution. In 2013, the Supreme Court in Windsor v. United States held that all married couples in California, including same-sex couples, must be granted the same rights as all married couples by the federal government. Thereafter, on June 26, 2015, the Supreme Court ruled in Obergefell v. Hodges that same-sex couples have the freedom to marry throughout the United States.

As a result of Obergefell v. Hodges, both getting married and getting divorced are much easier for same-sex couples across the United States. While many emotional and practical issues surrounding same-sex couples are the same as those of a heterosexual couple, same-sex couples are still facing distinct issues.

For many, the right to marry is not completed without the right to have children. As such, many same-sex couples turn to adoption as a means to begin their family. As of 2016, same sex adoption is legal in all 50 states.

Other couples may choose surrogacy. Surrogacy is the use of a third party to carry a child for other intended parents. In a traditional surrogacy, the host is genetically related to the child, while in a gestational surrogacy, the host is not genetically related to the child. Although a surrogacy arrangement may be a great option for same-sex couples, in the United States, a surrogacy arrangement can cost up to $100,000, leaving many same-sex couples looking at more affordable options outside the country.

However, same-sex marriage is not universally recognized. In fact, certain countries still prohibit same-sex marriages and such action may be punishable by incarceration; thus, many countries that offer a cost-efficient price for a heterosexual surrogacy agreement do not permit same-sex surrogacy agreements. Therefore, many same-sex couples may have only the high-priced United States surrogacy agreements as an option.

In addition, in civil states, such as in California, assessing a couple’s community property starts only when the couple officially marries, regardless of how long they were together prior to the marriage. Community property is property acquired during the marriage that is split equally between the parties at the time of divorce. Because same-sex marriage is relatively new, courts are likely to see cases where a couple has been together for 20+ years but has only been married for a short time; thus, raising complicated questions surrounding their property distribution.

Complicated issues often arise during divorce, and the issues may be heightened during a same-sex divorce. If you are unsure of your rights or obligations, consult an attorney who is familiar with the issues facing same-sex couples.