After Obergefell: How the Supreme Court ruling on same-sex marriage has affected other areas of law

Jaffe and Clemens Partner Robert Stanley was featured in the June issue of the ABA Journal about his personal and professional experience relating to the issues involved in the 2015 decision by the U.S. Supreme Court in the case Obergefell v. Hodges.

When Stanley moved to California about 10 years ago from Georgia, he went from a state with no legal status for same-sex couples to one with domestic partnership status. Shortly after the California Supreme Court’s ruling that recognized same-sex marriage went into effect—in mid-June 2008—Stanley and his partner got married. Then the state’s voters approved Proposition 8, the constitutional ban on same-sex marriage. That left Stanley’s marriage legal but prevented additional same-sex couples from marrying. Challenges to Prop 8 sprouted, and same-sex marriages again became permissible under state law in 2013.

However, Obergefell didn’t foreclose debate on the multitude of legal issues that arise from marriage.

“I felt that once there was some U.S. Supreme Court case or national recognition of marriage that didn’t have any loopholes, everything would be fixed,” Stanley recalls. “But Obergefell didn’t change the fact that existing relationships have been through a roller coaster of legal possibilities, and all those things are playing into cases at dissolution time.”

Lawyers who were interviewed by the ABA Journal raised a few other questions that have not been answered. States will have to determine what to do with pre-marriage-equality laws intended to provide same-sex couples benefits similar to those within marriage. “If your state offers some status other than marriage to same-sex couples,” Stanley notes, “the question is whether it now should offer that other status to opposite-sex couples.”

For example, Stanley notes, in Californidomestic partnerships are still available but only to same-sex couples and opposite-sex couples in which one of the parties is 62 or older. Stanley believes the state could opt to eliminate domestic partnerships altogether because it’s consistent with the reasoning of Obergefell. Unless that happens, parties who can’t take advantage of the status may challenge its inconsistent application.

“I feel like at this point that [the inconsistency is] unconstitutional,” Stanley says. “It’s a status not being offered to younger, opposite-sex couples. I haven’t seen that challenged yet. One way or the other, it’s going to have to be corrected.”

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