'Obergefell' two years later: same-sex marriage in America

Our house is still standing. The peonies are blooming. A new elementary school is being built nearby and should be ready for occupancy in September.

The world has not come to an end. American society has survived since June 26, 2015, the day the U.S. Supreme Court released its decision in Obergefell v. Hodges.

I consider Obergefell the most important family law decision in the history of the Supreme Court because of its immediate impact not only on the litigants who would be issued marriage licenses in their state, but on the lives of Americans across the country.

In making same-sex marriage legal in the United States, the majority determined that the right to marry a person of the same sex is protected by the Due Process and Equal Protection clauses of the 14th Amendment.

The decision in Obergefell was released on June 26, 2015, to a waiting crowd on the steps of the Supreme Court. When the crowd realized what the court had decided, hundreds of people started singing "God Bless America."

Those cheering the decision, some with tears of joy, must have thought that the decision would be respected whether one agreed with it or not. After all, school children are taught (or at least I was) that the Supreme Court's opinions are the law of the land and should be respected.

The struggle to legalize same-sex marriage has been neither smooth nor easy. The first reported state cases that determined whether same-sex couples could obtain marriage licenses and marry occurred during the 1970s and 1980s. In those cases, which were decided in Kentucky, Minnesota, Pennsylvania and Washington, the courts denied the plaintiffs' claims.

Ten years later, the Supreme Court of Hawaii held that denying a same-sex couple the right to marry violated its state's constitution. The state Legislature reacted to the decision by enacting the Reciprocal Beneficiaries Act as well as proposing an amendment to its constitution that would limit marriage to heterosexual couples. The amendment went to a vote of Hawaii's citizens and was approved.

The Reciprocal Beneficiaries Act was a prelude to other state civil union statutes. Those statutes provided same-sex couples with almost all of the benefits, protections and security of marriage except the name. To many same-sex couples, the name was important enough not to give up the battle.

History and tradition were major obstacles to abandoning the heterosexual requirement for marriage. There is something special about marriage, and even though a same-sex couple may live together in a monogamous and loving relationship, it was said that the procreation of children and the establishment of a family, the goals of marriage to some, were beyond the couple's reach.

In addition, and this is an important point, marriage has a religious component. Indeed, it is a sacrament in the Roman Catholic Church.

That was a central point in Supreme Judicial Court Chief Justice Margaret H. Marshall's opinion in Goodridge v. Dep't of Pub Health in 2003.

Goodridge established that limiting marriage to heterosexual couples violated the Massachusetts Constitution. What is important - and often overlooked - is that Marshall refers to civil marriage throughout her opinion.

By 2013, 16 other states followed Massachusetts to allow same-sex marriage.

In addition to the state supreme court decisions that allowed same-sex couples to marry in their respective states, two U.S. Supreme Court cases stand out as absolutely critical in paving the way for the celebration on June 27. They were Loving v. Virginia in 1967 and Lawrence v. Texas in 2003, decided 36 years apart.

Loving, which was recently dramatized in a movie by the same name, concerned interracial marriage. The case is generally referred to as having established that the right to marry is a protected constitutional right. Often lost in the discussion of the case today is that the prohibition against interracial marriage in Virginia was part of a state miscegenation statutory scheme that other states also had and was struck down by the Supreme Court.

In Lawrence, the Supreme Court recognized that state intervention into the sexual relations of individuals in a private place, such as their home, violated their liberty. The individuals in the case were adult males.

Although the outcome in Obergefell is a major historic achievement and a recognition of what is happening not only in our country but in many others, both the majority and dissenting decisions are disappointing in their lack of appreciation for the history and sociology of marriage in America.

To the justices on the Supreme Court who wrote opinions, there is one kind of marriage and that is formal ceremonial marriage. Nowhere in their opinions is there any reference to the complex legal nature of marriage. The reason it is important to recognize the legal complexity of marriage is that allowing same-sex couples to marry has an impact on many other family law rules that will require examination and perhaps revision.

What happens to informal - often referred to as common law - marriage, which is generally defined as a man and a woman living together as if they are married and recognized in the community as such?

Common law marriage is less popular today because of easy access to officials to perform a marriage ceremony. But during the 19th century, as people moved westward, clergymen and officials authorized to marry were rare. Couples simply lived together and acted as if they were married.

Only 12 states now permit entering into a common law marriage, but because of the rule that marriage legally entered into in one state is recognized in other states, common law marriage can be said to be legal in America. Absent in common law marriage, but present in formal ceremonial marriages, is documentation or proof. This is an important defect in common law marriage because it makes it difficult for a couple to prove they are legally married, for example in applying for government benefits.

Often misunderstood about common law marriage is that it is somehow less legal than a formal marriage. In fact, common law marriages entered into in a state that allows them are as legal as formal ceremonial marriages. Children born to a common law married couple are legitimate.

In order to terminate a common law marriage, a formal divorce is necessary. There is no such thing as an informal divorce in the United States. All the marital and parental obligations that attach to formal marriages apply to common law marriages. We shall have to wait and see how same-sex couples will be treated in those states that allow the entry into common law marriages.

The law often creates legal fictions in order to facilitate litigation, to reach a just result in a legal conflict or even to reflect a social policy, like promoting marriage. Presumptions illustrate this point. The law presumes that if a man and a woman are living together, they are married. The law presumes that a child born to a married couple is the biological child of that couple. The law presumes that if a married person abandons his or her spouse for a certain length of time, he or she has divorced the spouse left behind.

One can see the justification for each of these presumptions: Their application allows for a fair and just result. In the case of the presumption that a child born to a married couple is the biological child of that couple, the law is attempting to preserve the marital relationship and prevent the attempt to destabilize it even to the point of denying reality.

How does the re-definition of marriage affect these legal principles? Do the presumptions that have applied to heterosexual couples transfer to same-sex couples? All the presumptions in family law that deal with marriage will have to be rethought and re-examined. Both state courts and state legislatures have their work cut out for them.

It has been two years since crowds on the Supreme Court steps welcomed the Obergefell ruling. Unfortunately, there have been some ugly responses, some by officials who should know better, and others by those who have placed their prejudices above their civil duty.

While I have noted my criticism of the Supreme Court's opinions, I believe that the justices who voted to interpret the fundamental right to marry as the right to choose one's spouse, not only if the spouse is of a different race but of the same sex, will be remembered as being on the right side of history.

I have a suggestion for those who oppose same-sex marriage on the basis of religious grounds. I propose that Chief Justice Marshall's reference to civil marriage be taken seriously and that marriage in America become an exclusively civil event. By that I mean that all marriages take place where marriage licenses are issued and officiated by a state official, such as a city clerk. A justice of the peace might also be authorized to conduct a marriage ceremony.

The religious ceremony, completely voluntary, conducted by a priest, minister or rabbi, would have no legal significance but would be exclusively religious.

My proposal follows the European model. Massachusetts led the country in its recognition of same-sex marriage. Maybe it will lead the country in making the entry into marriage exclusively a civil event.

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Sanford N. Katz is the Darald and Juliet Libby Emeritus Professor of Law at Boston College Law School and the author of "Family Law in America," published by Oxford University Press and now in its second edition.

Published: Tue, Jun 27, 2017

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