Same-Sex Marriage Legal Pros and Cons
By Melissa McCall, J.D. | Legally reviewed by Melissa Bender, Esq. | Last reviewed July 12, 2023
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With the U.S. Supreme Court's landmark Obergefell v. Hodges (2015) decision, same-sex marriage is now the law of the land. Marriage equality is no longer limited to states like New York. Same-sex couples now have equal rights as heterosexual/different-sex couples in marriage laws.
Although the Defense of Marriage Act (DOMA) was no longer valid, states could ban same-sex marriage. This Supreme Court decision (Obergefell) cleared the way for gay people to get married throughout the United States. The ruling ushered in many other changes. For example, states must recognize same-sex marriages performed in other jurisdictions.
Obergefell was a turning point in the fight for gay rights. This case dramatically altered the legal landscape for gay marriage, citing the Due Process and Equal Protection clauses of the Fourteenth Amendment.
Although same-sex marriage is a fundamental civil right, marriage is not the right choice for all gay and lesbian couples. This article explores some of the pros and cons of same-sex marriage.
Legal Benefits of Marriage for Gay Couples
Marriage is a human right that creates a legal framework for dealing with family, including parental rights, inheritance, or taxes. This framework confers benefits on the parties to a marriage. Many proponents of gay marriage believe there is no difference between a gay marriage and a heterosexual marriage. Both parties want the same set of benefits and marriage rights.
Children
Traditionally, marriage was an ideal foundation for growing a family. Marriage ideally provides stability for all parties, including children. In the past, barriers to marriage created obstacles for gay families. Often, LGBT couples do not have the same parental rights as heterosexual couples because of their marital status.
Marital status also affects issues such as child custody and visitation rights. Through marriage, non-biological parents have the same rights and responsibilities as biological parents. Upon death, the surviving parent automatically becomes the primary legal parent.
Adoption
Absent marriage, same-sex couples can adopt to gain legal parental rights. No state may deny adoption to married LGBTQ couples.
Joint Property Rights
Marriage generally presumes joint ownership of property accrued during the marriage. The premise is different for unmarried couples. For unmarried couples, the person who acquires property owns it. With the legalization of marriage opening up choices for gay men and women, the issue of property rights can help determine if marriage is their best option.
Death and Taxes
Marriage also confers a set of benefits to the surviving spouse. Married couples can take advantage of favorable inheritance laws. If one spouse dies without a will, intestacy laws favor the surviving spouse. These benefits are not available to unmarried couples.
Government Benefits
Some government benefits are exclusive to married couples. These benefits include Social Security, health care, and unpaid leave to care for family members. Federal and state benefits are available to all legally married couples regardless of their gender identity or sexual orientation.
Immigration
Legal marriage is one path to U.S. citizenship. Even legally married same-sex couples did not have this access to citizenship under the Defense of Marriage Act (DOMA). Same-sex and opposite-sex unions are now equally protected under federal law.
Legal Cons of Getting Married
Formalities
Although many marriages start with beautiful ceremonies and parties, marriage is a formal, legal process. Unmarried couples can get together and break up without lawyers and court hearings.
Division of Property
State property laws dictate the division of marital property. In community property states, you and your former spouse divide the marital property evenly. In other states, property division is on "equitable" grounds, which could involve a 50/50 split.
Note that division of property also applies to liability for debts. Dividing assets and debts in a divorce can lead to costly battles. For unmarried couples, each partner can leave with whatever they accumulated. They each bear responsibility for debts in their names.
Marriage Alternatives
Although marriage equality is an important civil right, this does not mean all gay couples want to get married. And marriage is not the only option for same-sex unions. Civil unions, domestic partnerships, and common-law marriage are a few other options for marriage.
Get Help
Same-sex marriage carries all the same rights and responsibilities as straight-married couples. If you have any questions about your choices as a gay couple, speak to an experienced local family law attorney today.
Can I Solve This on My Own or Do I Need an Attorney?
- Many people can get married without hiring legal help
- Marriages involving prenups, significant debt, child custody issues, and property questions may need an attorney
Get tailored advice and ask questions about getting married.
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Don't Forget About Estate Planning
Marriage is an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries (including your spouse!) to your will. Consider creating a power of attorney to ensure your spouse can access your financial accounts. Also, a health care directive lets your spouse make your medical decisions if you ever become incapacitated.
