What the U.S. Supreme Court’s Pending Decision on Proposition 8 Means for Same Sex Marriage in America

April 2013Alerts Family Law Alert

As the Supreme Court tackles the controversial issue of whether to overturn California's Proposition 8 as being unconstitutional, the country waits and watches with great interest. Thus far, only nine states and the District of Columbia have laws approving same sex marriage. While the trend looks optimistic and the future bright for same sex couples at some point in time, that point in time may not in fact be right now.

The Supreme Court has four potential routes with respect to its decision:

1. Uphold Proposition 8 on the grounds that same sex marriage is not a constitutional right. This would leave same sex couples in California unable to marry. They would still have the right to register as a Domestic Partnership in California, availing themselves within the state of California of similar rights to married couples. Such a ruling would also make it more difficult to challenge other states' bans on same sex marriage.

2. Dismiss the appeal on procedural grounds, forcing the case back to Federal court in California, where gay marriage would likely become legal again in California.

3. Invalidate Proposition 8 on narrow constitutional grounds, thereby limiting the decision to California, which would lead to gay marriage in California.

4. Issue a broad ruling that gay marriage is a fundamental constitutional right that may not be abrogated. The likely result of such a ruling would be a nationwide legalization of gay marriage.

Given the divided nature of the Supreme Court and the stance to date that this issue should be dealt with at the state level, most do not expect a broad ruling at this time. This is especially true given that just 18 percent of states have approved gay marriage, representing close to 30 percent of the nation’s population. Therefore, option four is thought of as a very long shot.

Options two and three permit the Supreme Court to not reach the issue of constitutionality, but still have the impact of gay marriage in California being legalized.

Option three would be less of a cop-out for the Supreme Court and would at least pave the way for future challenges in other states. It would also represent a compromise for the Supreme Court, which appears divided philosophically.

While, of course, the decision will have monumental implications for our country from a moral standpoint, it will also start the process of resolving some critical practical issues that gay couples and their attorneys and advisers often face.

The same treatment as heterosexual couples for marriage and divorce. Being able to marry, enter into premarital agreements before marriage, and to have courts resolve disputes regarding property, child support, child custody, spousal support and legal fees is a right that most gay couples do not currently enjoy.

End Forum Shopping. California’s Proposition 8 banning same sex marriages will be coming under strict scrutiny by the U.S. Supreme Court. Currently, same sex couples desiring to marry, or who are legally married and want to divorce, must move to states that permit same sex marriages and process and recognize same sex divorces. If the U.S. Supreme Court were to rule that Proposition 8 is unconstitutional, all states will end up with same sex marriage laws, thereby ending the need to travel to particular states to be recognized as a same sex couple either for purposes of marrying or divorcing.

Enjoy Similar Tax Treatment. Currently, same sex couples who are legally married enjoy state tax benefits and medical dependency benefits only in those states that recognize same sex marriages. However, unlike heterosexual couples, same sex couples do not enjoy recognition by the Federal government, thereby depriving them of the full tax benefits enjoyed by their heterosexual counterparts, even if they live in states that recognize same sex marriages. It is generally believed that once the majority of states approve of same sex marriages, the Federal government will step in and permit gay married couples to enjoy the same preferential tax treatment as other married couples.

Premarital Agreements Recognized Uniformly. If same sex marriages are recognized at the Federal government level, then, like all other marriages, the uniform premarital agreement laws would be applicable to this sector in states across the country. Right now, such agreements are in flux and not recognized in most states.

Benefits, Benefits. Being able to be covered under your partner's medical insurance plan and to cover your partner’s children is a huge right that many gay couples are currently denied. Legalizing gay marriage would not only end this patent unfairness, but also permit gay couples and their families to enjoy dependent rights in life insurance plans and retirement plans as well.

This is an exciting and interesting time for this country and its highest court in the land. It faces a tough legal battle and difficult decision, which will impact millions of people and families. My personal hope is that the court takes on the challenge and rules on constitutional grounds — even if it is narrowly tailored. It is about time for such a decision.

If you have questions about this Alert, please contact Scott N. Weston or any member of Fox Rothschild’s Family Law Practice.