The LGBT rights movement’s D-Day seems to be on the horizon, as the U.S. Supreme Court is expected to issue a definitive opinion on same-sex marriage this June. Not surprisingly, many legal questions will remain, no matter which way the court rules.
The justices are considering two specific issues: whether states are required to recognize same-sex marriages performed in other states, and whether states are required to issue marriage licenses to same-sex couples.
There are, generally, three possible outcomes. The best-case scenario would be for the court to rule that all states must both issue marriage licenses and recognize marriages from other states, as all states currently do for different-sex couples.
Alternatively, the court could rule that all states are required to recognize marriages performed in other states, but are not otherwise required to issue licenses to their own state’s same-sex couples.
A third possibility is that the Court could rule there is no constitutional right for same-sex couples to marry. I don’t know of any serious court observer who believes option three is likely, and such a ruling would create genuine chaos in our legal system.
However, all of these options will leave a degree of uncertainty in states like Georgia, where a lawsuit filed by Lambda Legal seeking to nullify the state’s constitutional ban on issuing and recognizing same-sex marriage licenses has been put on hold by the federal judge hearing the case. Ideally, a favorable Supreme Court opinion would guide the federal judge in Lambda’s Georgia case to quickly issue a similar, consistent ruling.
Georgia Probate Court judges (who are the legal authority responsible for marriage licenses) would then begin issuing marriage licenses to same-sex couples, and also performing marriages. However, Probate judges in some states (such as Alabama) have found creative ways to avoid issuing marriage licenses to same-sex couples: arguing that Probate judges are not bound by federal judicial rulings; refusing to issue marriage licenses to anyone, gay or straight; or issuing marriage licenses on paper, but refusing to perform ceremonies for same-sex couples. These discriminatory judges could also be empowered by so-called “religious liberty” bills, which may allow them to refuse their duties due to their “sincerely held religious beliefs.”
Another issue of huge consequence to all married couples is the “marital presumption of parentage” when a child is born during a marriage. Under existing Georgia law, married parents are presumed to be the legal parents of the baby. Will the Georgia’s Vital Records department automatically issue birth certificates with both dads or both moms listed as a parent?
The Georgia legislature would also need to change some statutory language of existing laws to ensure the definition of “spouse” uses gender-neutral language. Georgia’s Department of Driver Services should then begin allowing name changes on driver’s licenses for all married couples who chose to change their name during their marriage. In the private sector, Georgia employers should then allow dependent health insurance coverage for spouses of their LGBT employees.
Atlanta-area judges have been progressive enough to grant second-parent adoptions to same-sex couples for many years. Will marriage equality give LGBT Georgians access to the state’s step-parent adoption statute? If so, will Atlanta-area judges continue to grant second-parent adoptions, or will those judges require same-sex couples to adopt only after marriage? Should married LGBT Georgia couples who previously adopted via the “second parent” approach, then also do a step-parent adoption just to be safe?
There are no simple answers. The question is not only whether we win at the U.S. Supreme Court, but how we win. Although there is every good reason to be hopeful and optimistic, the reality is that we will just have to wait and see.
Jeff Cleghorn practices family law with Kitchens New Cleghorn LLC. For more information, visit www.knclawfirm.com