High Court to Decide Same-Sex Marriage

By Attorney Gregg Herman
December 7, 2012

The U.S. Supreme Court has granted certeriori on two challenges to laws regarding same-sex marriage. The court will have the opportunity to decide not only whether the California law prohibiting same sex marriage is constitutional, but more significantly, the constitutionality of  the Defense of Marriage Act (DOMA).

I recently wrote an article for the American Journal of Family Law discussing the legal effects of same-sex marriage.  My impetus in writing the article was the confusion where some states allow same-sex marriage and some do not.  A woman had called me that she had been legally married to another woman in Iowa, but both were now living in Wisconsin.  Their marriage had deteriorated.  Iowa no longer had subject matter jurisdiction since neither was a resident.  However, Wisconsin’s constitution specifically prohibits same-sex marriage, so it was questionable, at best, whether they could get a divorce here.  In the interim, could they file joint income tax returns – or were they required to?  If either was bi-sexual, could either marry a man in Wisconsin or would that be bigamy?  What are the probate issues involved if either died?  The answers are that there are no answers.

The U.S. Supreme Court can now clear up all of this confusion.  My biases are in favor of striking down DOMA. First, it would be good for my business!  But, more importantly, I fail to see how allowing two people who love each other to declare a commitment for each other is a bad thing for society.

This case provides the opportunity for a watershed moment for the Supreme Court and I applaud the courage in their decision to grant cert.  I’ll follow this case as it proceeds and post again as circumstances warrant.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.