First Glance: Same-Sex Marriage Equality Decision Raises Myriad Legal Questions

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The lawsuits on these and other profound questions will be many and varied, and will last long into the future...

We asked attorneys writing on JD Supra for their initial thoughts around the historic same-sex marriage equality decision issued by the U.S. Supreme Court in Obergefell. Here is what we heard back from Brian Paul, business litigation partner in law firm Faegre Baker Daniels' Indianapolis office. At first glance:

  • The Court decided that same-sex couples have a fundamental right to marry and to have their marriages recognized in other states.
  • The states that have already recognized a right to same-sex marriage are unaffected in the sense that they can (and indeed must) continue to recognize same-sex marriages. Those states that have adopted same-sex marriage by legislative enactment, however, are affected in the sense that they no longer have the ability to revert to the traditional definition of marriage under their respective laws.
  • The states that do not currently recognize a right of same-sex couples to marry must now do so; they are constitutionally required to recognize same-sex marriages, both those that occur in their own state and those that occur in other states.

Religious institutions are typically entitled to receive certain tax exemptions under the law. Can the government now withhold these exemptions for churches that refuse to solemnize same-same marriages?

  • The Court’s decision leaves many open questions. Perhaps the most fundamental questions have to do the rights of people who belong to faiths and religions that do not condone same-sex marriage. The majority opinion emphasizes that people who share this religious view may continue to “advocate” their views, but as the lead dissent (penned by Chief Justice Roberts) notes, the majority opinion does not emphasize the right of religious believers to exercise these religious views—a right enshrined in the First Amendment to the U.S. Constitution side by side with the right of free speech. It is inevitable that over time these two rights—the right of same-sex couples to marry and the right of religious believers to exercise their religion—will clash. Ministers and priests currently solemnize marriages and those marriages are recognized by state law. Can states now make it illegal for religious leaders who perform marriage ceremonies to refuse to solemnize same-sex marriages? Religious institutions are typically entitled to receive certain tax exemptions under the law. Can the government now withhold these exemptions for churches that refuse to solemnize same-same marriages?

Can states now make it illegal for religious leaders who perform marriage ceremonies to refuse to solemnize same-sex marriages?

  • There are also questions about the rights of same-sex couple to receive the incidents of marriage. For example, will churches and other religious employers now be required to provide the same benefits to same-sex couples that they provide to opposite-sex couples? Are states required to allow same-sex couples to adopt children? To live in married-student housing at colleges and universities? To pursue compensation in tort suits when their spouses are injured by the negligence of others (otherwise known as loss-of-consortium suits)? The lawsuits on these and other profound questions will be many and varied, and will last long into the future.

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