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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Tuesday, September 3, 2013

Same-Sex Marriage: State Legislatures to County Family Courts

Here come the lawsuits.  In the wake of the SCOTUS ruling in June striking down same-sex marriage bans and granting federal benefits to same-sex married couples, many couples are finding their way to court houses across the country.

Most states that have what could be called "gay-friendly" legislatures, something that we would expect changes over time, have already passed laws specifically granting gay couples the right to marry in a dozen states.  So the strategy among proponents of the notion of gay marriage has shifted from the state capitols to the county courthouses.

In Santa Fe County, NM, for example, a family court judge ordered the county clerk's office to issue marriage licenses to couples without regard to their gender or sexual orientation, ruling within a brief hearing that doing so was now unconstitutional.  At the time of this blog post, 7 counties in New Mexico have followed suit.

In neighboring Texas, the Supreme Court has scheduled oral arguments for November in two cases where same-sex married couples were granted divorces from Texas county family courts.  The Texas Attorney General has intervened in the divorce proceedings, asserting the divorces issued by the family courts are invalid because they implicitly recognize same-sex marriage; something proscribed by Texas law.

Cases in Tennessee and Kentucky are also percolating through the state courts, testing state laws proscribing same-sex marriage.  In one of the several cases pending in Kentucky, one-half of a same-sex married couple is on trial for murder and the issue in the court is whether his "better-half" can be compelled to testify, or whether he should be granted spousal immunity.

In another high-profile case from Franklin County, Kentucky, a same-sex couple filed suit against the Governor on grounds that Kentucky's outright constitutional ban of same-sex marriages violates the Equal Protection clauses of the U.S. and Kentucky constitutions.  This is the same issue that was decided in California in the SCOTUS Windsor case.

Currently, there are too many same-sex marriage cases to track unless you are a law professor or law student writing a law review article on the subject.  Unlike the SCOTUS' 1973 Roe v Wade decision, considered the height of judicial activism, which created a sweeping constitutional ban on anti-abortion legislation, last term's same-sex marriage decision adopted a state-by-state approach.

While the momentum toward recognition of same-sex marriage as a civil right has gained steam since we here at the Law Blogger picked-up on the issue back in 2009, it will take at least a quarter century for the current dust to settle.  At least that is our prediction.

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