gay marriage, U.S. Supreme Court, Obergefell

Better Safe? Why Obergefell Matters Before Court Rules

What some are describing as a rush to the altar by some same-sex couples puts a new twist on the saying, “Get a Ring by Spring!” These couples want to be married before the U.S. Supreme Court decides the constitutionality of state marriage bans in Obergefell v. Hodges and with good reason. The possibility of what the Court will decide has prompted some couples to push up their nuptials, reasoning that it’s better to be safe than sorry.

Many court watchers expect the Court to rule state marriage bans unconstitutional. However the possibility of a decision that leaves existing same-sex marriages intact while banning future marriages is not without precedent.

In Hollingsworth v. Perry, the California Supreme Court invalidated the state’s ban on gay marriages in May 2008. By November, about 18,000 same-sex couples were married when Proposition 8, a ballot initiative banning gay marriage, went into effect. In its decision in consolidated cases challenging the legitimacy and the retroactive applicability of Proposition 8, the California Supreme Court upheld Proposition 8 and the legality of those 18,000 same-sex marriages. The ruling created a constitutional conundrum and two classes of same-sex couples – those who were legally married in California and those who were prohibited from marrying.

Fast forward to 2015, when the U.S. Supreme Court is poised to decide the question it avoided in both Perry and United States v. Windsor — whether states may constitutionally prohibit same-sex marriage. The Court’s decision in Obergefell will determine the legality of an estimated 250,000 existing gay marriages and decide whether tens of thousands of unmarried same-sex couples may marry. In light of the confusion produced by the California court decisions, it would be prudent for the U.S. Supreme Court to issue a ruling that does not distinguish between existing and prospective same-sex marriages.

If the Court throws California’s cautionary tale to the wind and allows some same-sex marriages to remain valid while prohibiting future same-sex marital unions, pandemonium could ensue. It would provide refuge for state officials in Alabama and Texas who have expressed an intention to ignore a Court ruling invalidating state marriage bans. It would impose an additional administrative burden on states to determine whether out-of-state marriages are pre-Obergefell or post-Obergefell and on same-sex couples to make such a showing. It would also destabilize same-sex families and deliver a devastating blow to the marriage equality movement.

Love, children and even tax advantages may inspire couples to advance their wedding date. A pending Supreme Court determination is not what most couples contemplate when making this important decision and it is not likely to prompt same-sex couples who aren’t considering marriage to do so before the ruling. But, unlike most couples, same-sex couples don’t have the luxury of knowing that whenever they decide to marry their marriage will be legal and enforceable.

The questions from the justices during oral arguments on April 28 might provide insight into whether the Court will rule the way the California Supreme Court did. It is not likely that the Court would do so, but it is possible. And the possibility, however remote, is enough for some same-sex couples to conclude that a marriage in the hand is better before the ruling by the Court.

Tanya Washington, professor of law, earned her J.D. from the University of Maryland School of Law and her LL.M. from Harvard Law School. Her research focuses on issues arising at the intersection of family law and children’s constitutional rights. Her scholarship has been published in journals at law schools across the United States. Washington co-wrote an amicus brief in U.S. v. Windsor, which was cited by one of the parties in the case and she and her co-authors filed an amicus brief in Obergefell v. Hodges.

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