On May 8, 2012 President Barack Obama declared his support for gay marriage. This announcement instantly sparked both criticism and celebration. Considering that America will elect its next President this year, Obama effectively brought the issue of gay marriage to the political forefront. Obama has clarified that his announcement only represented his personal opinion and reaffirmed that questions regarding marriage are to be decided by the states.

Just as individuals have polarized over the issue of gay marriage, so have the states. All states agree that marriage is a fundamental right guaranteed under the Constitution. The right to marry is recognized under the umbrella of the fundamental right to privacy. Also under the right to privacy are other fundamental rights such as procreation, custody of one’s children, and the right to make decisions regarding the child’s upbringing. Further, because the right to marry is so fundamental, the government is not permitted to infringe on that right without passing strict scrutiny. The government has the burden to prove that a law or regulation is narrowly drawn to further a compelling government interest. “Narrowly drawn” is often interpreted to mean the least restrictive means of achieving that actual compelling interest. The states that have prohibited same-sex marriage interpret the right to marry as only protected when the marriage involves a man and a woman.

Under the Constitution, the government is not permitted to treat similarly situated classifications of people differently. The United States Supreme Court has declared that when particular classifications are involved, the law must pass strict scrutiny to be upheld. These classifications include race, national origin, and alienage. The Supreme Court has also distinguished gender as a class but requires the government overcome a much more lenient burden. However, the Supreme Court has not yet decided what scrutiny to apply to laws involving discrimination based on sexual orientation. Therefore, states have continued to apply various levels of scrutiny based on the particular holdings within each state.

Residents in San Diego are in a particularly unique situation. California previously granted marriage licenses to same-sex couples but has since ceased to do so. Thus, some same-sex couples remain married in San Diego. These marriages bring up distinctive issues for attorneys if the couple decides to seek a divorce. The case may also involve child custody and visitation issues that need to be resolved. Another common theme throughout same-sex divorces and dissolution of domestic partnerships is litigation over pets. As we have previously blogged, pet custody is becoming more prominent in many divorce proceedings, especially between same-sex couples.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding custody. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.