This week the United States Supreme Court declined the opportunity to review the issue of same sex marriage on a state level (Of course they have overturned part of DOMA as it related to the federal definition of marriage in the Windsor case). While many wish the U.S. Supreme Court had taken on this issue, the practical effect is that same sex marriage will now be permitted in many states. And that is because many federal appellate courts have overturned state bans on same sex marriage and everyone was waiting to see if those federal appellate decisions would be upheld or overturned by the U.S. Supreme Court. And now we won’t know. But that means that the federal appellate courts’ decisions stand thereby making same sex marriage legal in many states.
I was immediately contacted by the local NPR affiliate and asked how this would affect the issue of same sex marriage in Georgia. In the interview, I surmised, based on reading the opinions of those who follow the issue much more closely than I do, that same sex marriage will arrive in Georgia and it won’t take that long. While Georgians have historically opposed same sex marriage (although in metro Atlanta numbers of supporters versus opponents of same sex marriage is likely much higher than outside of Atlanta), same sex marriage is likely on its way here. Many similarly situated states such as Texas and Kentucky have had their laws prohibiting same sex marriage, which were passed by a strong majority , overturned by federal appellate courts, and those decisions and the decisions overturning many other states’ similar laws now remain intact, given the U.S. Supreme Court’s decision not to tackle the issue at this time.
But what does this all mean? For one thing it means that same sex couples across the country will soon be able to use the process of divorce (some already can) because the appellate court’s decisions are basically now confirmed (by default). While this sounds bad, think about it. Currently in states such as Georgia where same sex couples may not marry, when they separate, what happens? Confusion. Chaos. There are no good mechanisms to help them divide the assets and debts they acquired together, or to help them resolve their child related disputes (custody, visitation, support). Divorce is a process that, even if you do not like the rules, at least there are rules which make the process more predictable than one which has no rules. And that may be the one thing we can all agree upon. My point is that without a formalized process for same sex couples to dissolve their relationships, there is more cost, more confusion and more trouble. Many sets of lawyers are needed (real estate lawyers, custody lawyers, corporate lawyers to help divide businesses, bankruptcy lawyers, etc.).
So why do I think Georgia and all other states will eventually have same sex marriage? Because there really is no other choice. And even if the federal appellate courts do not strike down the Georgia ban on same sex marriage, trial courts may, and that may well be upheld on appeal. It only makes sense. Now that a majority of jurisdictions have or soon will have same sex marriage, couples who are married legally elsewhere and legally divorced elsewhere will move to Georgia. Then what would Georgia do? Ignore a child support order from a same sex marriage because it then recognizes a same sex marriage? But that would then harm the true innocent party, the child, and that should not, and must not, happen. So when a trial court issues an order that explicitly or implicitly recognizes same sex marriage, the issue will be, in my opinion, eventually handled in a way which results in the recognition of same sex marriages in Georgia. And of course, in April of this year a lawsuit was filed in federal court challenging the Georgia’s ban on same sex marriage and if that is successful, same sex marriage will arrive in Georgia even sooner.