Same Sex Marriage: What’s on the legal horizon

June 30, 2009

Leaving aside the make up of the current Supreme Court for the next generation, the courts are going to have to address the same sex marriage issue on a national basis in the foreseeable future.  As there are more and more state sanctioned same sex marriages, eventually some will need to have divorce, alimony and child support issues addressed by a state of in which same sex marriage is not recognized but in which one of the same sex spouses is a resident.  The full faith and credit issue will have to be addressed foursquare.  

While the issue is complex, the court of a state like Kansas may want to avoid granting alimony to one its residents because in its view, under its constitution, that resident is not legally married and absent some kind of “palimony” theory, is not entitled to alimony.  When that happens, the whole federalist house of cards will be up for grabs.  At one end of the possible spectrum of results, the courts may conclude that a state has the right to refuse recognition of the marriage, refuse to grant a divorce, alimony or child support, and wash its hands of the matter.   The concept of “forum shopping” would therefor permit a spouse in a same sex marriage to chose his obligations by picking the state in which the litigation occurs. At the other extreme is a decision that a marriage in any state must be treated as a marriage in all states.

While you would then you have a marriage in 50 states for purposes of enforcing rights in state court actions but under the Defense of Marriage Act, you still would not have marriage before the U.S. government.  Or worse, you might have a marriage in a state court proceeding but not in a federal court proceeding?  How would a state court enforce pension rights or handle spousal bankruptcy matters if parties are married under state law but not federal law?

Let the games begin.

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