Wednesday, January 8, 2014

January 2014 Status of Same-sex Marriage in the US

The status of same-sex marriages and their legal recognition is rapidly changing in the United States.  Let's do a quick recap:

Federal:  In 2013 the US Supreme Court overturned the 1996 Defense of Marriage Act (DOMA) which barred federal benefits to same-sex couples legally married in the United States or abroad.  As a result, same-sex marriage is basically legal in all 50 states terms of Federal benefits.  So, if you get married in a state allowing same-sex marriages, various Federal agencies will recognize your marriage regardless of whether you live in a state with legal same-sex marriage or live in a state without same-sex marriages.  Thus, a couple in Kentucky can marry in Illinois and file their Federal taxes jointly, sign up their spouse for military benefits, be treated as a married couple for the purposes of immigration, etc.  In other words, these couples will be treated in theory no differently than any other legally married couple.

At least this is the case in theory.  Several states which ban same-sex marriages are requiring these married couples to file separately on their state taxes -even though the state forms require referencing their joint Federal tax return.  What a headache!

17 States With Legal Marriage:  In 17 states, DC, and in six tribal nations, a same-sex couple can walk into the property local office, apply for, and get a marriage license.  (See the dark blue states on the map above.

Utah:  In December 2013 a Federal judge threw out Utah's constitutional ban on same-sex marriage and opened the doors for hundreds of Utah couples to marry.  Utah requested a stay on the decision until the state government could appeal the decision.  The original judge and the 10th Circuit of Appeal both turned down a stay.  Utah then appealed to the US Supreme Court which in January 2014 granted a stay until the appeal could be heard.  So now the lower court's decision is being appealed, and the status of the hundreds of newly married couples is unknown.  In the only similar situation when CA legalized and then banned same-sex marriages, the courts recognized those couples who had married when marriage was legal there. (It is legal again since 2013 in California by the way).

Ohio:  Another Federal judge in Ohio ruled in 2013 that Ohio must recognize same-sex couples who have legally married in another state on death certificates.  So, this ruling is narrow and only involves death certificates.  In this case and in Utah, both judges relied on the recent US Supreme Court's ruling on DOMA.

Oregon:  Oregon has offered same-sex couples civil unions since 2007.  It also has a constitutional ban on same-sex marriage.  Now there are efforts to remove this constitutional amendment in Oregon and legalize marriage.  In the meantime the state has announced it will recognize same-sex marriages performed in other states and abroad.  A lawsuit is also challenging the state ban on marriage.

North Dakota:  In a truly bizarre legal twist, North Dakota's attorney general ruled in 2013 that a North Dakota man who had married another man in another state could marry a woman in North Dakota ...without getting a divorce!  The potential bigamist could not get a divorce from his husband in ND because neither he nor his husband lived in states recognizing same-sex marriage.  Since ND doesn't recognize his marriage, the ND Attorney General ruled he could legally marry a woman in ND.

Lawsuits in 20 States:  As of January 8, 2014, there are legal cases pending in 20 states (including UT and Oregon) seeking to have these states recognize same-sex marriages.

Other 12 States:  In 12 states same-sex marriages are banned, and I could find no current pending lawsuits challenging these bans.  In Ohio the death certificate case opens the door for a wider challenge.  Wyoming's legislature considered a civil unions bill but shot it down.  In Florida the leading LGBT organization is reportedly seeking plaintiffs to challenge that state's ban.  Missouri's governor has said the state will recognize legally married same-sex couples for tax purposes but some members of the legislature are vowing to fight this regulatory policy change.

Navajo Nation:  The Navajo Nation's reservation lands include areas of New Mexico where same-sex marriage became legal in 2013, but a 2005 law bans same-sex marriage recognition by the tribal government.  There is now a push to legalize same-sex marriages in the Navajo Nation.  If successful, the Navajos would join 8 other tribes where same-sex marriages are now legal and recognized.

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