The U.S. Supreme Court’s ruling in Obergefell v. Hodges has effectively made same-sex marriage legal in all 50 states. Thirty-five states, the District of Columbia, and Guam had already given legal recognition to same-sex marriages through legislation or court order. Several more states, while refusing to issue same-sex marriage licenses, recognized out-of-state same-sex marriages. Couples who married in a state that allowed same-sex marriage but moved to a state that did not recognize their marriage had found themselves in a difficult position if they tried to file for divorce. The Obergefell ruling appears to have resolved those conflicts, although legal problems may persist in some areas.
The Supreme Court’s decision in United States v. Windsor struck down the federal Defense of Marriage Act (DOMA) in 2013. DOMA, originally passed in 1996, denied federal benefits to same-sex married couples, even if they had a lawfully issued marriage license. The Obergefell plaintiffs applied for a marriage license in Ohio after the Windsor decision came down, and they filed suit against the state when they were denied. The couple also sought to have one of them designated as the “surviving spouse” of the other, who was suffering from a terminal illness.
The plaintiffs prevailed in U.S. district court, but the Sixth Circuit reversed the ruling. The Supreme Court consolidated their case with cases from Kentucky, Michigan, and Tennessee. It held in a 5-4 ruling on June 26, 2015 that state bans on same-sex marriage violated the Equal Protection Clause of the Fourteenth Amendment. The decision overturned the Supreme Court’s 1972 action in Baker v. Nelson, when it declined to hear the appeal of a Minnesota case on the grounds that a same-sex couple’s marriage claim did not present a “substantial federal question.”
Obergefell’s direct impact in New York is likely to be minimal. A 2008 New York court decision gave legal recognition to same-sex marriages performed in other states or countries, and the Legislature passed a law allowing same-sex marriages within the state in 2011.
In states that continued not to recognize same-sex marriages or to issue same-sex marriage licenses, Obergefell effectively struck down those states’ laws. Some states have agreed to abide by the ruling, while officials in other states have claimed that they will oppose it. County clerks in several states have refused to grant marriage licenses, while others have resigned in protest. Since the Supreme Court, according to more than 200 years of legal practice, has the final say on matters of constitutional law, the only generally accepted means of changing the effect of Obergefell would be to amend the U.S. Constitution.
If same-sex marriage is legal in all 50 states, it seems implied that all 50 states must grant divorces to same-sex couples as well. This is most likely true, although it may take litigation over a state judge’s refusal to grant a same-sex divorce to have an official determination. Most states define “divorce” as the dissolution of a marriage, using that state’s definition of “marriage.” If every state now defines “marriage,” in a legal sense, to include same-sex couples, they should all allow same-sex divorce as well.
If you are considering a divorce in New York, or if you are already involved in a divorce proceeding, you should consult with an experienced and skilled same-sex divorce attorney. Ingrid Gherman has practiced family law in the New York City area for the past 30 years. We can help you plan and prepare your case, understand your rights and responsibilities, and protect your assets. Contact us today through our website or at (212) 941-0767 to schedule a confidential consultation to see how we can help you.
More Blog Posts:
New York City Feels Impact of Certain Multi-Billion-Dollar Divorce Cases Across International Borders, New York Divorce Attorney Blog, June 22, 2015
New York Lawsuit Claims Damages for Defendant’s Failure to Get a Divorce, New York Divorce Attorney Blog, June 16, 2015
Same-Sex Divorce Presents Unique Difficulties Due to Conflicts Between Laws in New York and Other States, New York Divorce Attorney Blog, April 28, 2015