LGBT - The Right to Marry for All

A few months ago, the Supreme Court of the United States rendered a 5-4 ruling in the same-sex marriage case, Obergefell v. Hodges. In Obergefell, the Court held that the 14th Amendment to the Constitution requires a state to issue a license for a marriage between two same-sex partners and more importantly recognizes a marriage between two same-sex partners which was lawfully entered into in another state (an example, a Massachusetts same-sex marriage is now recognized in Texas). This is an important ruling as the Court has eliminated (or tried to eliminate) any ambiguity about the legitimacy and legality of the previous hot-button question: Whether a marriage legally entered in one state would be recognized in another? Obergefell answered that question – The states must recognize the marriage of another state. The loophole was officially closed.

The Obergefell decision culminates a long line of jurisprudence where the Federal Courts have been deciding the LGBT marriage debate. First, in U.S. v. Windsor, the Supreme Court invalidated the Federal definition of marriage as defined in the Defense of Marriage Act. This created (at least at the federal level), legal same-sex marriage for the purpose of Federal Taxes (same-sex couples could file jointly or head of household) and other Federal Benefits (such as, Social Security Benefits). The question remained after, Windsor, how would the States’ own Defense of Marriage Acts be affected, if at all, by the Windsor decision? Did Windsor open the door to Federal control over what was largely regarded as a State’s right? – The definition of marriage, the issuing of marriage licenses, etc.?

In May 2014, the Pennsylvania Supreme Court held in Whitewood v. Wolf, that the Pennsylvania Legislature’s own Defense of Marriage Act was unconstitutional and it was struck down. At issue remained in Wolf as it did in Windsor: A same-sex marriage right was established within Pennsylvania and in combination with the Windsor case a same-sex marriage right existed Federally, however, there was still ambiguity. Beyond the borders of the Commonwealth of Pennsylvania (and those other states that already recognized same-sex marriages) the question remained as to the parties’ rights in the event of death, divorce, child custody, adoption, etc., when one or both parties moved to a State where same-sex marriage was not recognized.

It should also be noted that even with the landmark Obergefell decision, Pennsylvania has not revised its statutory definition of marriage and other issues continue to be clouded as the process moves forward. See the Kim Davis controversy from Kentucky.

The main point of the Obergefell case can be surmised by the following: The Supreme Court of the United States has recognized, as an inalienable right of two consenting adults to marry, regardless of gender. The Supreme Court has now interpreted the Constitution of the United States to include the right to marry under the Equal Protection Clause of the Constitution to ensure that a legal marriage in one state is a legal marriage in all states and territories of the United States. This means that couples no longer need to be concerned with one state not upholding the law because they are homosexual and married. Except for the fact that a few radical people have now taken positions that homosexuals and their lifestyle is against their religion – which is wrong under the Constitution of the United States and the Supreme Court’s ruling in Obergefell and its’ progeny.

The Obergefell decision is a landmark civil rights decision and it may close a chapter in American jurisprudence for the LGBT community. However, there undoubtedly may be more controversies that could rise to challenge the Obergefell decision in the Courts, most likely in areas of religious liberty. In this author’s opinion, those challenges to Obergefell will likely successfully defeat the newly established unalienable right to marry. Marriage finally a right to all people, regardless of gender or sexual orientation.

If you need assistance with your LGBT Divorce, please do not hesitate to contact the Law Office of Jane P. Marks at (610) 431-4012 to set up your consultation, today!

Categories: LGBT Divorce