What Do The Recent Supreme Court Rulings On Gay Marriage Mean For North Carolina?
On May 8, 2012, voters passed an amendment to the North Carolina Constitution which declares that “Marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this State.” Amendment One wrote marriage discrimination against same-sex couples into the State’s Constitution. Many same-sex couples living in North Carolina who have lawfully married in other states or countries hoped that the U.S. Supreme Court would hand down an opinion which would have the effect of invalidating Amendment One and forcing North Carolina to recognize their marriage as a valid legal union, on the same footing as traditional heterosexual marriages. However, the recent Supreme Court rulings on gay marriage left standing North Carolina’s same-sex marriage ban as well as those of 36 other states.
In the first decision handed down, Hollingsworth v. Perry, the Supreme Court dismissed the appeal, reinstating the Federal District Court ruling which struck down the California ballot measure that prohibited same-sex marriage as unconstitutional. The Court ruled that the private parties seeking to defend the constitutionality of Proposition 8 lacked standing to do so. As a result, California once again will be allow same-sex couples to marry, making it the 13th state now to do so.
In United States v. Windsor, the Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA), which prohibits the federal government from recognizing marriages between same-sex couples that were legal in the jurisdictions in which they were performed. The Court held that Section 3 violates the due process and equal protection clauses of the Fifth Amendment of the United States Constitution, as there is no possible legitimate purpose which justifies DOMA’s effect of disparaging and injuring lawfully married same-sex couples.
Windsor takes effect in 25 days; from that point forward, the Internal Revenue Service and other federal agencies will have to recognize marriages between same-sex couples who reside in states which recognize their marriage as valid, granting them the tax breaks and other federal benefits afforded to opposite-sex married couples. However, the Court left it to states to define marriage, allowing states such as North Carolina to continue to deny the right to marriage to same-sex couples.
The U.S. Department of Justice will be issuing guidance on several issues related to whether legally married same-sex couples who reside in nonrecognition states such as North Carolina will have their marriages recognized by the federal government, thereby being able to enjoy federal protections and benefits associated with marriage.
A coalition of LGBT advocacy groups has produced a series of Fact Sheets, After DOMA: What it Means for You
In North Carolina, LGBT couples lawfully married elsewhere or living together in marriage-like relationships may enter into domestic partnership contracts and parenting agreements to solidify and protect their relationship. At Hager Divorce & Family Law, we offer guidance and support to same-sex couples interested in entering into legally binding and enforceable contracts which can cover the following topics:
● Joint ownership of real property (in particular, the home shared by the couple)
● Pooling of income and other financial resources
● Co-parenting of the couple’s minor children
● Designating certain assets as a partner’s separate property
● What provisions each partner will include in their Will to provide for the surviving partner
● Manner in which property will be divided in the event of a break-up
● How legal and physical custody of the couple’s minor children will be shared should the relationship end
● Dispute resolution process (such as mediation, arbitration, or collaborative negotiation) to be followed should the relationship end
The negotiation and drafting of any relationship contract is a serious matter which has long-term implications for both partners. Same-sex couples may also execute durable powers of attorney and health care powers of attorney naming each other to ensure that their partner can handle financial affairs and medical treatment issues should they become unable to do so.
Disclaimer: This blog post should not be construed as legal advice or a legal opinion on any specific facts or circumstances, and does not create an attorney-client relationship. You are encouraged to contact an attorney or a tax professional to determine the next best steps you can take.
Contact us to schedule a consultation if you are interested in further exploring what you can do to protect your relationship and your family.
Virginia R. Hager
June 28, 2013