A Week of Same Sex Marriage Developments Across the Nation

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Same sex marriage has been a hot button issue for quite some time. Last week, two major events took place on the west coast. In California, the Ninth Circuit Court of Appeals declared that the state’s ban on same sex marriages (Proposition 8) was unconstitutional. Then just one (1) day later, Washington passed a law allowing same sex couples to marry.

Prop 8 had been approved by 52% of California voters in 2008. The three judge panel declared the ban unconstitutional because it singled a specific group of individuals- in this case homosexuals- for no reason. In other words, in order to “discriminate” against a specific group of individuals, a state must have a compelling reason. The majority of the judges found California had no such reason; however, the lone dissenting judge found California’s ban was constitutional because the state had an interest in the preservation of families. The judge who issued the opinion on behalf of the Ninth Circuit said the ban “serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”

Even though the Court of Appeals declared Prop 8 unconstitutional, the same sex marriage issue is far from over in California. Opponents of the decision are already planning an appeal to the United States Supreme Court to review the decision. Additionally, Judge Vaughn Walker- the judge who initially declared the ban unconstitutional at the district level (level below the Court of Appeals) in 2010- has a conflict of interest hearing set for later this year. Critics of the decision allege the Judge should have disclosed his sexual orientation due to the decision he was being asked to render. The Ninth Circuit refused to invalidate Judge Walker’s decision on that basis and held a judge’s sexual orientation was not a basis that would allow the court to overturn that judicial decision.

Prior to Washington’s recent law, six states and the District of Columbia allowed same sex couples to marry: Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont. The Washington House of Representatives approved the bill last week and then the Republicans and Democrats of the Washington Senate- in a 55-43 vote- approved it. Washington Governor Chris Gregoire is set to sign the bill later this week. Yet same sex couples will not be allowed to marry until ninety (90) days after Gov. Gregoire signs the legislation. Even then, Washington voters- like the California voters in 2008- will be allowed to vote to decide whether they wish to overturn the legislature and Governor’s decision to allow for same sex marriages in their state.

Mississippi currently has a ban on same sex marriages. The ban was initially issued in former Governnor Kirk Fordice’s executive order in 1996. This was codified in Mississippi Code Annotated § 93-1-1 (“Any marriage between persons of the same gender is prohibited and null and void from the beginning. Any marriage between persons of the same gender that is valid in another jurisdiction does not constitute a legal or valid marriage in Mississippi.”) 86% of Mississippi voters amended the Mississippi Constitution in 2004 to reflect this thereby declaring the ban appropriate. However, Mississippi does allow single homosexuals to adopt a child (Miss. Code Ann. § 93-17-3(5): “Adoption by couples of the same gender is prohibited.”). The individual cannot be in a relationship or be part of a couple wishing to adopt (Miss. Code Ann. § 93-17-3: “Couples of the same gender may not adopt.”)

Regardless of how you feel on the subject of same sex marriage, the debate over it in our court system does not seem to have an end in sight. Perhaps the United States Supreme Court will take California’s appeal during their next session and shed light on this issue.

Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.

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