U.S. Supreme Court’s Decisions about Same Sex Marriage

Many people may recognize the phrase, “Marry’d in haste, we may repent at leisure,” from a play by William Congreve, an English playwright and poet.  That sentiment has been truer for same sex couples in the last several decades, but its truth may be eroding since the U.S. Supreme Court’s decisions in Windsor v. United States and Perry v. Hollingsworth.

In Windsor v. United States, the Supreme Court struck down the federal Defense of Marriage Act, which prohibited same sex marriage. The Court in Perry v. Hollingsworth also found California’s Proposition 8, which prohibited same sex marriage, to be unconstitutional.  Legal scholars believe that these two decisions may herald an end to statewide marriage bans between same sex partners and provide the basis for challenges to these states’ laws.

Same sex couples have married in states that permitted these marriages, such as New Hampshire, often with little thought to the potential end of the marriage.  Later, when their relationship ended, if they have moved to states in which same sex marriages were illegal, such as Pennsylvania, they were unable to get a divorce.

Returning to the state of their marriage to obtain a divorce is not realistic.  Although they were able to marry in the first state after a short visit, they must establish residency, in most states of one year, to divorce in that state.

The couple cannot remarry because they would be bigamists in states that recognize their marriage.  For couples that combined their assets, they must pursue relief of their property issues through a process called in some states, partition, that tracks contributions to the joint property.  Even for couples that did not combine their assets, their continued matrimony without an official sanction of the end of their marriage is risky.

The Supreme Court’s decisions may also provide other forms of relief for same sex couples, for example, in the division of retirement funds and tax deductions for alimony payments.

Commentators agree that these two decisions represent great changes in this area. However, many issues remain unresolved. First, although many same-sex couples have lived together for years or decades before marrying, assets in most states are considered divisible only if they were acquired after marriage. Couples may also face custody issues when the non-biological parent has not adopted the child.