To Wait for the Law to Change or not to Wait, That is the Question A Guide for Same-Gender Couples and Clergy on the Necessity of Using Private Law to Protect the Rights of Same-Sex Relationships

Abstract

Due to the serious issues same-gendered couples living in states that do not legally recognize their relationships face, this article examines the very real need for same-sex couples to use private law, in the form of specific legal documents, to protect their rights. Moreover, the authors take the position that clergy who solemnize same-sex relationships should require these couples, as a precondition, to execute such documents as enumerated in this article. Clergy, by facilitating the assistance of legal counsel and integrating the execution of legal agreements, will help provide same-sex couples with a level of legal, emotional and financial well-being that may not currently be attainable without private legal agreements.

The article begins by examining the current state of the laws governing same-sex relationships at both the federal and state level. Specifically, we will examine two cases that have substantially impacted the landscape of rights for same-sex couples. The paper will then examine four areas of the law where uncertainty for same sex couples lies and the legal agreements that can be effectively utilized to reduce this uncertainty. These areas include: 1) medical/end of life decisions; 2) financial welfare of both parties and distribution of assets upon dissolution of the relationship; 3) distribution of the couple’s property in the event of death; and 4) parental rights. The paper will conclude with recommendations for clergy in counseling same-sex couples prior to performing marriage and commitment ceremonies.