The Supreme Court On Same-Sex Marriage: The Practical Impact of Obergefell v. Hodges
Today, making way for same-sex marriage, the Supreme Court decided the landmark case of Obergefell v. Hodges. The opinion gives same-sex couples the same rights as their different-sex counterparts. The issues as framed by Justice Kennedy (writing for the majority) were (1) whether the Fourteenth Amendment requires a State to issue marriage licenses to two people of the same sex and (2) whether that same amendment requires a same-same marriage performed validly in one state to be recognized in another. The answer to both questions was a resounding yes.
Summing it up, Justice Kennedy eloquently wrote:
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would disrespect the idea of marriage. Their please is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitutions grants them that right.
Obergefell v. Hodges, No. 14-556, slip op. at 28 (Sup. Ct. 2015). No doubt, we all deserve dignity in the eyes of the law and this opinion will go a long way to allowing same-sex couples to enjoy the dignity that others have so long relished through their marriages (and even through their divorces).
Indeed, we cannot let the moment pass without recognizing the legal and emotional relief that we should all be feeling as each of our rights grow stronger with their congruency. But it will take a little time to realize just how significant this moment is. For now, this is clear: in the United States, if you’ve been legally married in any state or any country, your marriage must be recognized in the U.S. If you are in a same-sex relationship and you WANT to be married in a state where you have previously been prohibited from doing so, you can be married, too. If you are married in one state and cross over to another with one of those hateful-protect-traditional-marriage-we-don’t-have-to-recognize-same-sex-marriage laws, guess what? You are married!
If you were previously married in and living in, say, Howard, County, Maryland (or any state that recognizes marriage), how does this decision impact you? Well, you can travel the United States without worrying that your marriage won’t be recognized. So all the rights you got with your marriage in Maryland should follow you right along to say, Alabama.
Many people didn’t realize that there are some ex-couples who were married in a recognition state but lived in a non-recognition state who were unable to be divorced at the conclusion of their relationship – this should change now, too. For the divorce lawyer in Mississipi (or Louisiana or North Dakota or any place previously ignoring the reality that same-sex residents of their states needed divorces), putting out the “same-sex divorce” sign is a good idea now. Because states are required to recognize same-sex marriages, they will do the divorces.
The murkier water will be in the extension of marital rights and presumptions to other areas, not the least of which will be in the area of child custody. We all know that biases are insidious and invisible. So, first, judges may need to be educated out of their bias against the non-biological parent in same-sex custody disputes. But even before that, the parentage presumptions will need to be ironed out in all the states. Maryland, for instance, has a presumption that if the birth mother is married at the time of conception or birth, her spouse is the presumed parent. States less friendly to same-sex marriage may attempt to hack away at same-sex rights by playing with the language of presumptions. I’m certainly going to continue to recommend to our Maryland clients (whether in Montgomery, Howard, or Anne Arundel counties, or in Baltimore City and beyond) that they do second-parent adoptions so that they can be assured that they will always be recognized as the parent of their child (even in the face of a challenge to the presumption and regardless of their biological status vis-à-vis the child and regardless of where they live).
We are sure there will be hurdles to the full enjoyment of marriage for all. One does not need to go beyond the dissents to the majority opinion to know that. Scalia’s less-logical-than-usual dissent illustrates the ire with which the majority opinion will be met by some: calls that the government and the court are corrupt, that American Democracy is under attack, that we should be mindful of the attacks on our “liberties” being done by the majority and those who fight and have fought so long and so hard for equality in the law, and barbs at the majority for their judicial “Putsch” are reminders of the hard hearts of some. But we are also hopeful that once the dust settles in the wake of this opinion that human hearts will open wide and everyone will accept that love is great and that marriage is a protection that all couples deserve.
Whether you are straight or gay, if you have questions about your marriage, please reach out to us. We have offices in both Howard County and Montgomery County, Maryland. We are happy to help.
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At McCabe Russell, PA, we have an established reputation as assertive and confident negotiators and litigators, offering legal guidance designed to eliminate any of our clients’ worries and confusion. We are experienced family law attorneys in Howard and Montgomery County, but we serve clients throughout Maryland. Read more about McCabe Russell, PA.