Practice in Focus LGBTQ+ Family Law Maryland legalized same-sex marriage in 2013. The country followed suit and legalized it in 2015. With nearly 10 years of legalized marriage, family law practitioners may assume that their services provided to straight couples are directly transferable or essentially the same for LGBTQ+ families. While many of the legal services needed by LGBTQ+ families are the same, practitioners who wish to incorporate dedicated services to LGBTQ+ clients should be aware of this population’s particular history and concerns. LGBTQ+ people formed family units and romantic partnerships well before they gained legal recognition for their roles in these families. Thus, LGBTQ+ people were navigating family and relationship dissolution without the force or favor of the law for many decades. While family law has progressed to include bare legal condonation of lesbian and gay spouses and parents, many LGBTQ+ people entering family court have a negative history with, or attitude toward, family law in general. Examining the historical legal background is a helpful place to start when contemplating how to provide effective services to LGBTQ+ clients. Lawrence v. Texas, a landmark civil rights
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case for LGBTQ+ Americans, was decided in 2003 and overturned a Texas law outlawing sexual conduct between same-sex partners, which was otherwise legal for their straight peers. Obergefell v. Hodges is the landmark decision establishing that a right to marriage includes lesbian and gay couples. The Supreme Court delivered that decision in 2015, more than 10 years after Massachusetts authorized the first same-sex marriages. Couples who were able to obtain marriage licenses in the intervening period were forced to navigate a vast range of state laws that forbade, tolerated, or affirmed the rights of these married people. However, focusing on these recent victories can obscure the deep distrust earned through decades of discrimination against LGBTQ+ parties in American courts. Frederick Hertz, a gay family law attorney and mediator reflected on these dispositions as they relate to the LGBTQ+ community and noted, “Courthouses and legislatures have, for many decades and in many different ways, served primarily as sources of oppression rather than justice for LGBT people…the legal system historically played a negative role in our community.” Alongside historical legal context, family law practitioners
The Advocate
January 2022