SCOTUS Grants Cert on Same-Sex Marriage Case

By Attorney Gregg Herman
January 17, 2015

Yesterday (January 18) the US SC consolidated and granted cert on four same-sex marriage cases.  In its order, the Court stated that it would address the following questions:

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Acknowledging my general inability to predict anything in this world correctly, is there any question of which way the court will rule?

There are now 36 states which recognize same-sex marriage.  Most of them do so because, as in Wisconsin, a federal court ruled that failure to do so violates the Fourteenth Amendment guarantee of Equal Protection of Laws.  In Wisconsin, the effect was to nullify a state constitutional amendment.

Since the 5th Circuit ruling was not stayed, same-sex couples are now routinely getting marriage in Wisconsin (and elsewhere).

If the SC reverses the 5th Circuit (and other courts), the Wisconsin constitutional amendment then is valid and same-sex marriages would be illegal again.

OK, that’s fine (or not so fine, if you are a same-sex couple, but not married yet), but what about the marriages already granted?  It doesn’t seem to make sense that the SC ruling would be prospective only.  I mean, if states like Wisconsin have a right to define marriage as only between a man and a woman, why would there be a gap when that was not effective?

And if the ruling is retroactive, what happens to same-sex couples who married in the interim?  If they filed joint tax returns, do they have to amend as single?  If one of them died intestate and the other inherited as the surviving spouse (unlikely, but certainly not impossible) would be surviving spouse have to give the money back?

The second question illustrates the confusion where same-sex marriage would be legal in one state and not in another.   Just as one example, if a legally married couple, based on the statutory law of one state, moved to Wisconsin, are they still married?  Can they file joint Wisconsin tax returns?  Can one spouse name the other as covered under a health insurance policy which limits coverage to family?

The easy way around all of these questions is for the US SC to hold that Equal Protection includes the right to be married.  After reading two of the Federal Court of Appeals decisions, my guess is that is exactly what they will do.

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.