Just now realizing it's been almost a year since the last post. Lo siento! Much has happened over the past year for the LGBT community culminating with the June 26, 2015 U.S. Supreme Court decision in Obergefell v. Hodges. Here is the decision,
On July 10, 2014, the New Hampshire Governor signed into law a bill repealing the state's reverse evasion statute. The old law declared any marriage entered into by a nonresident invalid if the couple's home state would not recognize the marriage.
This created problems for lesbian and gay couples who married in New Hampshire but lived in one of the 30 states that do not recognize same-sex marriages. By extension, those couples would find their marriages would not be recognized by the federal government.
Fortunately, all that is gone now with the new law taking effect. And, the law is retroactive. A section of the law applies specifically to same-sex couples. "Sec. 457.44 Nonresidents; Recognition of Same-Sex Marriage. Any marriage of a same-sex couple contracted in this state on or after January 1, 2010 by a party residing or intending to reside in another jurisdiction is valid and legitimate as of the date of its solemnization."
Most lesbian and gay couples that married in New Hampshire and live in a non-recognition jurisdiction were probably unaware of the problems. However, it needed to be fixed.
Illinois has not taken action to repeal its reverse evasion statute and lesbian and gay couples living in nonrecognition states should not marry in Illinois until the law is repealed. Any couple that married in Illinois should consult a lawyer to determine their next step. In the long-term, the Illinois law can be used by a nonrecognition jurisdiction to deny marital benefits if the law is not fixed.
As I've stated many times before, everything involving marriage equality is in a state of flux and it is important to understand your legal rights, responsibilities and obligations before making decisions. Events are moving quickly, changes are happening and the situation is constantly evolving. Often it can be difficult to stay on top of things.
The Department of Justice released a long-awaited memorandum on June 20, 2014 on the extent to which federal benefits are available to married lesbian and gay couples. http://www.justice.gov/iso/opa/resources/9722014620103930904785.pdf
For the most part, all federal benefits are available. There are two major exceptions: Social Security and VA benefits.
The Social Security Administration (SSA) and the Department of Veterans Affairs (VA) are legally required to use a person's state of domicile to determine the validity of a marriage and whether a spouse is eligible for survivor benefits. This means these agencies use a state's definition of marriage.
All other federal agencies use the state of celebration to determine whether a marriage is valid. If the marriage was valid in the state where it was celebrated, it is valid for federal purposes.
The IRS, for example, recognizes all same-sex marriages regardless of where the couple lives. Therefore, all married same-sex couples must file as "married' for federal tax purposes.
The U.S. Supreme Court decision in Windsor does not affect the laws that govern SSA and the VA.
The only way to change the SSA or VA law is with an act of Congress or a court decision. The Supreme Court could resolve the issue by requiring all states to recognize out-of-state marriages by lesbian and gay couples.
The Respect for Marriage bills are pending in the U.S. House of Representatives and the U.S. Senate. Contact your Congressional Rep and U.S. Senators and encourage them to support this bill. However, as a practical matter and given the disfunction that exists in Congress, it is unlikely the Republicans will permit the SSA and VA laws to be changed. I expect it will take a lawsuit to resolve the situation.
In the meantime, if you think you are entitled to benefits, file a claim. If denied, file an appeal. This preserves your right to back benefits when the situation is resolved. It also means you are positioned to take the matter to federal court and raise the constitutional issues.
The 6th Circuit Court of Appeals will hear oral arguments on the marriage cases from Ohio, Tennessee, Michigan and Kentucky. The court is giving each side 30 minutes to present their arguments in the Ohio and Michigan cases. The other two cases will get 15 minutes each.
Lawsuits are pending in every state that does not recognize marriage equality for lesbian and gay couples. For now, the federal district courts have been unanimous in deciding that bans on marriage equality and recognizing out-of-state lesbian and gay marriages are unconstitutional. The battles move to the Federal Circuit Court system.
The 6th Circuit Court of Appeals will hear appeals from every state in the Circuit: Ohio, Michigan, Kentucky and Tennessee. Until the appellate courts issue decisions in the marriage cases, the status quo remains in effect. This is neither unusual nor is it unfair. It is the way court cases progress through the judicial system. We need patience to see it through.
The United States Supreme Court will be the final stop for the question of whether individual states can refuse to permit lesbian and gay couples to marry and refuse to recognize marriages entered into in other states. I think the court will address the issue in the session beginning the first Monday in October 2015. That would mean a decision from SCOTUS by June 2016.
While many see this as slow-moving, we have gone from no recognition and DOMA in 2004 to 20 marriage equality jurisdictions in 2014--with more on the way. The law usually does not move this quickly--neither does public opinion. But the American people, by nature, are fair-minded. They have come to see it makes no sense to continue the discrimination. It shows people are willing to change.
Kudos to the pioneers in the movement for marriage equality. People like Mary Bonauto with GLAD in Boston--considered by many to be the "Godmother" of marriage equality. It is important to maintain the momentum.
And, on a closing note, come to Cleveland this August (9-16, 2014) for the 2014 Gay Games. Volunteer or compete but come to play. The website is www.gg9cle.com or follow on Twitter @GG9Cleveland.
When Pennsylvania's Governor Corbett decided not to appeal the federal court decision declaring the state ban on marriage recognition, the Commonwealth became the 20th marriage equality jurisdiction in the U.S. Approximately 44% of the US population now lives in a marriage equality jurisdiction.
Earlier this week lesbian and gay couples in Montana and South Dakota filed challenges to their state bans on recognizing marriages between same-sex couples. That leaves North Dakota as the only state in which no legal challenge is pending.
Every federal district court that has heard a challenge has found the bans unconstitutional under the U.S. Constitution. Appeals are pending in most U.S. Circuit Courts. No one knows how the Circuits will rule on those appeals. Everyone expects the U.S. Supreme Court to accept at least one case in the 2015 or 2016 term. Until then, with the exception of the Pennsylvania decision, all the lower court decisions are on hold.
Utah has been ordered to recognize the marriages that occurred before the Supreme Court issued a stay in that state's challenge case. The 10th Circuit in Denver, which will decide the appeals in the Oklahoma and Utah cases, is expected to be the first to issue a ruling on the matter.
Rulings in the other appeals may not be issued until 2015.
Still, the tide seems to have turned and marriage equality for lesbian and gay couples...and their children...is becoming a reality.
Stay tuned; more to come.
Many lesbian and gay couples are taking advantage of the opportunity to get married. For couples living in non-recognition states it is important to consider where you'll get married as well as whether you should get married.
Not all same-sex marriages will last. When they don't the parties involved will need to get a divorce. Where the couple married and where they now live will determine how difficult getting a divorce will be. All states have residency requirements that a couple must meet before filing for a divorce or dissolution.
There are 18 jurisdictions that permit same-sex marriages.
California, Vermont and DC allow non-resident same-sex couples that married in those jurisdictions to obtain a divorce if they live in a state that does not recognize their marriage. Illinois law states that same-sex couples marrying in the state consent to the state's jurisdiction for matters concerning the marriage, including dissolution, even if neither is a resident.
The other marriage equality jurisdictions have residency requirements that must be met in order to end a marriage.
If you were married in New York and live in Ohio, you cannot get a divorce in New York unless you or your spouse becomes a resident.
Some Ohio Domestic Relations judges are granting dissolutions and uncontested divorces. However, since Ohio does not recognize same-sex marriages, and no one has appealed any of these divorces, the state Supreme Court has not ruled on whether the divorce courts have the right to grant a divorce.
It is important to consider what happens if the marriage does not work out. Talk with a lawyer before taking the plunge. That may save you time, trouble and money later on.
Most same-sex couples that marry in one of the 18 marriage equality jurisdictions believe their marriage is valid. That may not be the case.
New Hampshire and Illinois, for example, have "reverse evasion" statutes. These laws prevent non-residents from getting married if their home state would not recognize the marriage. They are not designed to specifically affect same-sex couples. These are laws that have been on the books for years.
The Illinois statute states: (750 ILCS 5/217) (from Ch. 40, par. 217)
Sec. 217. Marriage by Non-residents - When Void.) No marriage shall be contracted in this state by a party residing and intending to continue to reside in another state or jurisdiction if such marriage would be void if contracted in such other state or jurisdiction and every marriage celebrated in this state in violation of this provision shall be null and void. (Source: P.A. 80-923.)
Same-sex couples living in a non-recognition jurisdiction cannot enter into marriage in their home state. Since the marriage would be void in their home state, Illinois law prohibits the couple from marrying in that state.
The New Hampshire legislature is considering legislation that will repeal their reverse evasion statute but there is no similar action pending in Illinois.
There have been recent news reports from Illinois that many of the licenses being issued in the state are for lesbian and gay couples from Ohio and Indiana. It is important to find out how these statutes affect the validity of the marriage. If the marriage is not valid where celebrated, the federal government will not recognize it.
It may be necessary for the couple to marry in another marriage equality jurisdiction. In time, these statutes will not be as important because same-sex marriages will be recognized throughout the country.
Judge Timothy Black has issued a stay of the decision he issued on Monday, April 14, 2014. The case, Henry, et.al v. Himes, deals with birth certificates and recognition of out-of-state same-sex marriages. The judge did not put a hold on the decision as it affects the lesbian couples who filed the case. Those couples are expecting the birth of children in the next few months. For them, Judge Black's decision means Ohio must place the names of both women on their child's birth certificate.
Gov. Kasich has ordered the Ohio Dept. of Health to not put the names of same-sex parents on birth certificates. This is a change in policy and was done without notice to anyone. Judge Black's decision countermands that policy.
This is a very good decision for children. Birth certificates are an essential part of everyone's life.
The Judge's decision puts everything on hold for other Ohio married same-sex couples until the 6th Circuit Court of Appeals rules on Ohio's appeal. The 6th Circuit is also considering other appeals on the issue of same-sex marriage and LGBT rights. Ohio has two appeals pending, the first involves Judge Black's decision last summer requiring the state to recognize same-sex marriages on death certificates. Other appeals are pending from Michigan, Kentucky and Tennessee. That means every state in the circuit is appealing a same-sex marriage related decision from a trial court.
In addition to the 6th Circuit, appeals on same-sex marriage recognition are pending in the 4th, 5th, 9th and 10th Circuits. Appeals are expected in the 3rd and 11th Circuits within the next year. The only Circuits that will not see appeals are the 1st and 2nd Circuits because the marriage issue has been decided.
Stay tuned. It's an exciting time for LGBT rights in the United States.
The National Center for Lesbian Rights (NCLR) has a series of publications addressing what the post-DOMA world will mean to you. You can access everything on the NCLR website at http://www.nclrights.org/site/PageServer?pagename=DOMA_FAQ_2013
You will find information on issues like marriage, benefits for military families, immigration and FMLA. These pdf documents will give you a heads-up on recent developments.
Joan M. Burda is a lawyer with a solo practice in Lakewood, Ohio. She limits her practice to estate planning & probate. She writes on a variety of topics. Joan is nationally recognized for her work in addressing legal issues affecting the LGBT community.
No information submitted to this site is protected by any attorney-client privilege.