Waldlaw Blog

Monday, November 03, 2008

What Happens if Prop 8 Passes? What Happens if it Doesn’t?

I keep getting emails asking me “what happens to my marriage if Prop 8 passes?” In the spirit of informing my readership, I thought I would respond publicly here. NOTE: Below are my legal responses to the question. But before I don my lawyer hat, I have to say that this fight has been far uglier, and far more bruising, than I ever would have anticipated. The leadership of the NO on 8 campaign has fought for us with incredible passion, determination, and integrity, and I am deeply grateful to them. There are conversations happening every day -- on street corners, in grocery stores and, yes, in schools -- that I couldn't have imagined even 5 short years ago. No matter what happens tomorrow, there is no going back. Now, on to the law: If Prop 8 Passes: If Prop 8 passes, it is unclear how quickly it will go into effect. It also is unclear what impact its passage will have on same-sex marriages entered into in the months since same-sex marriage became legal in California. Both of these questions are likely to be answered through litigation; whether the courts will stay implementation of Prop 8 pending the outcome of such litigation is also unclear. So much for solid answers.... One thing is certain: If Prop 8 passes in California, it will be more important than ever for same-sex couples – and especially same-sex couples with children – to do diligence to make sure that their families are legally protected. This means making sure that you have done appropriate estate planning; making sure that you have complete and up-to-date advance health care directives; and making sure that where there are children involved, each parent has a clear legal connection to the children that isn’t dependent on recognition of the parents’ legal connection to each other. In other words, do not rely on marriage or domestic partnership to make you a parent. If your legal relationship with your child is predicated on recognition of your legal relationship with your partner, you – and your child – are legally at risk. Beyond that, for couples who married in California before Prop 8, there could be substantial complexity in figuring out your legal relationship in a post-Prop-8 world. In what senses are you still married? In what senses aren’t you? If you have health insurance or other benefits through your spouse, what happens to those benefits? Is community property still in effect? We will not know the complete answers to these – and other, similar – questions for weeks, months, and maybe even years after this election. But I promise to keep blogging, and keep giving workshops, to get the best answers out to you as soon as they are available. And I strongly advise staying connected to our community organizations, such as Our Family Coalition and NCLR and Equality California, for accurate information and updates. If Prop 8 is Defeated: (1) Have a big glass of champagne. We all deserve it. (2) Many of the same cautions listed above still apply. Unfortunately, even if Prop 8 is defeated, we still live in a world where more states have Defense of Marriage Acts (DOMAs) than not. You still need to do your estate planning, make sure you have advance health care directives, and make sure your relationships with each other and with your children are fully protected. Despite marital presumptions applying in California, these presumptions do not travel with you. Please celebrate, but don’t be lulled into complacency. Full equality will require sweeping change at the federal level, and we still have a long way to go. Sound pessimistic? Not at all. We are making history. We just can’t allow our families to be put at risk while we enjoy it. Now, stop reading this blog and GO VOTE!!!


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