With oral arguments behind us and a decision in Obergefell v. Hodges expected in early June, it’s likely just a few short weeks before the Supreme Court makes marriage equality a nationwide reality.
Far smarter court-watchers than me have already offered their predictions as to the outcome. But in my own attempts to read the tea leaves, I’m left convinced that the Court didn’t allow marriages to move forward in a dozen states, only to take the right away just eight months later.
Which leaves me wondering, what comes next? What legal pitfalls and unforeseen consequences will we find in a post-Obergefell world?
And as I lay in bed at night pondering the more esoteric corners of our marriage and divorce law, here are just a few of the things keeping me awake:
Marriage evasion statutes.
Ever heard of a reverse marriage evasion statute?
I’m not surprised.
The idea behind these painfully antiquated laws is to prevent a couple from traveling to a state (say Illinois) to marry when the marriage would not be lawful in the couple’s home state. The law accomplishes this task by rendering void any marriage by an out-of-state couple that wouldn’t be lawful in their home state.
While not particularly common, reverse marriage evasion statutes exist (or existed until relatively recently) in Massachusetts, New Hampshire, Illinois, Vermont, Wisconsin and Wyoming.
The bottom line: couples that chose to marry in one of these jurisdictions when the marriage was not legal in their home jurisdiction are not actually married.
Thought you married in Chi-town during your weekend visit from Cleveland? Nope. Not married.
Something I suspect many couples won’t discover until it’s well past too late.
Big love. Fat chance.
The specter of polygamy has hung heavy over arguments for marriage equality. Theodore Olson struggled with the issue under questioning from Justice Sotomayor in Hollingsworth v. Perry, and Mary Bonauto completely whiffed on a similar question from Justice Alito in Obergefell.
(Just a humble suggestion, but when your opponent’s primary argument is that you’re re-defining a term (say marriage) to fit your own purposes, it’s not particularly helpful–when confronted with a difficult hypothetical–to argue, as Bonauto did–“well shucks, what you’re talking about just doesn’t fit the definition of marriage.” Head slap.)
But Bunauto’s gaff highlights an important point. If marriage is a fundamental right, access to which the state can’t restrict based on historical happenstance or prejudice, what justification does the state have left for prohibiting polyamorous marriages among consenting adults? Reynolds v. United States, which purported to settle the polygamy question as far back as 1879, reasoned that, “Polygamy has always been odious among the northern and western nations of Europe . . . and from the earliest history of England polygamy has been treated as an offense against society.”
But if historical odiousness no longer provides a rational basis sufficient for the state to restrict access to marriage, what then?
Indeed, in striking down Texas’s ban on homosexual sex, the Supreme Court observed “we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.” Lawrence v. Texas.
It’s frankly hard to see how the Court can avoid being carried away by its own logic. But I suspect they’ll try anyway. Marriage equality seems to be polling well, but I doubt we can say the same for Sister Wives.
Honey, meet my other spouse.
Proving that you just can’t make this stuff up, I’ve run into several anecdotes of same-sex partners marrying in one state only to have one of them fly the coop to less progressive climes.
Finding him or herself unable to divorce, and newly attracted to someone new–this time a member of the opposite sex–the wayward partner marries again having been advised that their earlier, same-sex marriage is not legally valid in the jurisdiction.
But when marriage equality comes to all fifty states? Where does that leave our accidental bigamist? Does the earlier, lawfully contracted marriage take precedence? Can the second marriage be salvaged based on the patchwork of marriage laws in place at the time?
Does your head hurt yet?
We went to Vermont, and all we got was this lousy civil union.
Remember all those alternative, marriage-lite statuses states created in the lead up to marriage equality? Domestic partnerships? Civil Unions? The anything-but statuses designed to assuage the conscience while systematically denying same -sex couples their basic civil rights?
What happens to all of them?
Some couples will undoubtedly marry and moot the status completely. Others may have already found a workaround, dissolving those unions in the same state that created them. But what about the couples that find themselves civilly union-ed or domestically partnered and now residing in a state that no longer (or never did) recognize the status?
I shudder to think we would force these couples to marry just to provide them the privilege of legally dissolving their relationship.
So, what’s next?
While the dream of marriage equality may almost be upon us, more than a few legal nightmares aren’t far behind.
Let’s hope most won’t come to pass.
If only we could be so lucky.