Same-Sex Marriage – Where are we, Legally Speaking?

top-lawyersThe United States Supreme Court has spoken.  Now where are we?   What is lawful and what is not?  Can the answers to these often complex issues be addressed in a straight-forward manner?

The following is our best effort at accurately simplifying the law.   Remember that while the trend is clear, things change with time:

  1. First, if a State — acting through its legislature — wishes to permit, and sanction as lawful, same-sex marriage, can it?   Answer – yes.  (The Supreme Court said so this past term in the Windsor case.)
  2. Second, can the federal government prohibit states from authorizing same-sex marriages within the state’s boundaries?   Answer – no.  (The Supreme Court said so this past term in the Windsor case.)
  3. Third, if a State – acting through a referendum of its voters – wishes to outlaw same-sex marriage in its state, can it do so?   Answer – Presently unclear and the lower courts are divided.   For example, the Ninth Circuit Court of Appeals (which includes California, Oregon, Washington, Arizona, Nevada, Idaho, Montana, Alaska and Hawaii) says no.  Connecticut says no.   Other states say yes.  This is being hotly contested.
  4. Fourth, if a State, like Ohio, bans same-sex marriage through an amendment to its state constitution, does such a ban violate the United States Constitution?   Answer – Probably yes, although this remains to be fully determined.   The language used recently by the United States Supreme Court (regarding heightened scrutiny) and several recent lower court decisions suggest that such bans will soon be forbidden by more and more federal courts. 
  5. If a same-sex couple gets married in a state that permits gay marriage (such as New York) and then returns to a state that does not permit it (such as Ohio), can the second state refuse to recognize the validity of the marriage ceremony within the first state?   Answer – no.   This answer seems quite clear although the United States Supreme Court has not addressed the issue.  For example, an Ohio court in Cincinnati just issued an order forcing Ohio to recognize the rights of a couple married in New York to be afforded full married rights in Ohio.     
  6. Do gay people have a constitutional right to be treated the same as “straight” people in all law-related matters (inheritance, for example)?   Answer – yes as a general statement, but the courts are now applying this principle to specific situations.

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