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Santorum Favors Retroactive Same-Sex Marriage Ban

Since July 2011, New York has legally recognized same-sex marriage. Although such marriages do not receive the same federal protections as traditional opposite-sex marriage, New York's legalization of same-sex marriage gave couples additional state benefits and rights. This could soon change, though, depending on the outcome of the Republican Party nomination process and U.S. presidential election.

For example, in an interview with NBC News, Republican presidential candidate Rick Santorum said he favors amending the U.S. Constitution to prohibit same-gender marriages. His proposal would retroactively nullify existing marriages in addition to banning them going forward.

Same-Sex Marriage Rights and Benefits

Same-sex spouses in states like New York that recognize same-sex marriage generally have the same rights and benefits under state law (but not federal law) as legally married opposite-sex couples, including the following:

  • Tax relief
  • Emergency medical decision-making power
  • Access to domestic relations laws
  • Workers' compensation benefits
  • Inheritance rights
  • Spousal testimonial privilege

Civil Unions and Domestic Partnerships

Peter Sprigg, a senior fellow at the Family Research Council, told the San Francisco Chronicle that if the Constitution is indeed amended according to Santorum's proposal, states that recognized same-sex marriages would have to convert these same-sex relationships to civil unions. Whether states would be capable of granting the same benefits to civil unions as they did to same-sex marriages is uncertain.

Domestic partnerships between unmarried, cohabitating couples also grant limited state rights to both same-sex and opposite-sex couples. Domestic partners do not receive the same benefits of marriage and can encounter legal issues in various circumstances. Domestic partners do not receive income tax advantages, are not afforded the spousal privilege or confidentiality of marital communications, cannot take out insurance policies on each other and do not automatically receive inheritance unless provided for in the other partner's will.

These are only a few examples of the many differences between legally recognized marriage and domestic partnerships. Same-sex couples experiencing legal issues arising from their relationship status should contact a qualified, experienced family law attorney to find out what rights and options they can pursue under the law.

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