Inside: Guest Editor’s Column

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Since Massachusetts became the first state to legalize marriages of same-sex couples in May, 2004, same-sex unions have remained a hotly divided topic throughout the United States.  As seen in the articles and charts, although there has been substantial progress in the legitimizing of same-sex unions, there still is much confusion and a long way to go.  Not only are there strongly held societal views on the subject, but the subject is made more complex because of a myriad of federal and state laws, many of which are conflicting and even the weighing in on the subject by a Proposition of the citizens.

Recognition of same-sex relationships in the United States

Recognition of same-sex relationships in the United States

Our articles this month offer a variety of topics regarding same-sex unions.  Gary Watt, a partner with Archer Norris in Walnut Creek, discusses the highly publicized issues pertaining to Proposition 8, which dictates that marriage is a union between a man and a woman only.  He follows the history of this Proposition, reflecting on the fight over whether or not Prop 8 is constitutional.  As noted in his article, the right of same-sex couples to marry in California still is unresolved and does not appear likely to be resolved in the near future.

Constitutional bans on same-sex unions in the United States

Constitutional bans on same-sex unions in the United States

As discussed in the article by Steven Mehlman, of the Mehlman Law Group in Walnut Creek, while the constitutionality of Proposition 8 and same-sex marriage continues to be litigated, there remain issues regarding the holding of real property.  Mr. Mehlman offers advice on the characterization of the holding of property, avoiding probate, dividing property upon termination of a relationship and avoiding disputes between unmarried couples or those who are not registered as domestic partners.

Erika Portillo, a partner with the firm of Guichard, Teng & Portello, APC in Concord, describes the challenges faced by bi-national same-sex couples who seek residency or citizenship for a partner.  She addresses the impact of the Defense of Marriage Act (“DOMA”) on the Immigration and Customs Enforcement’s (“ICE’s) practices, as well as practical controls available to identify fraud in any union. As she discusses, the ICE, in recognition of the competing interests of the individuals with the various laws, addresses the issue in a practical manner, giving the ICE more discretion in handling such cases.

Employee benefits for same sex couples are addressed in the article by Rita A. Holder, Esq. of Concord.  As she notes, California is a leader in providing same-sex couples health insurance benefits.  She further describes the complexity of the issues, including various scenarios in which tax treatment and rights to continued coverage vary.

Melanie Kay, of “suddenly on your own” in Berkeley, discusses the practical aspects of dissolutions of unions, whether through death or a separation of partners.  She addresses the emotions and realities of separations, and ways in which assistance can be provided to ease a transition.

Additionally, in this month’s edition, statistics are provided regarding gay marriages.  While California is not in the forefront of legalizing such marriages, it still recognizes some out-of-state same sex unions.

We hope that these articles are helpful for understanding the laws and trends regarding same-sex unions.


Patricia M. Kelly is a partner with the Law Offices of Sohnen & Kelly in Orinda.  She is a graduate of Stanford Law School.  Her practice focuses on employment law.

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