July 15, 2013 —
By Justin O’Dell
Last month, we left Dick and Jane with Dick contemplating a career change and the effects of a covenant not to compete. This month, the Supreme Court of the United States (SCOTUS) sent a ripple through the nation and has caused Dick to put his plans on hold for another month. We will come back in August and look at the covenant not to compete issue. For this month, a discussion of the landmark decision by SCOTUS presents a litany of issues.
In order to give the effects of the ruling practical understanding, let’s create a brother for Jane named Jack. Jack is in a committed relationship with Bill. Jack and Bill lived in Vermont and were lawfully married after Vermont began to allow for same-sex marriage. However, Jack and Bill now live here in Georgia. The Attorney General of Georgia has stated that the Georgia Constitutional ban on same-sex marriage, passed in 2004, remains valid and in effect. That amendment states:
(a) This state shall recognize as marriage only the union of man and woman. Marriages between persons of the same sex are prohibited in this state.
(b) No union between persons of the same sex shall be recognized by this state as entitled to the benefits of marriage. This state shall not give effect to any public act, record, or judicial proceeding of any other state or jurisdiction respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state or jurisdiction. The courts of this state shall have no jurisdiction to grant a divorce or separate maintenance with respect to any such relationship or otherwise to consider or rule on any of the parties’ respective rights arising as a result of or in connection with such relationship.
Last month, SCOTUS held that the Federal Defense of Marriage Act (DOMA) was unconstitutional and found a lack of standing on the part of the Appellants related to California Proposition 8. Pages could be spent explaining and analyzing each ruling, but rather than reinvent the wheel, please read and consider this link for an excellent plain English explanation: http://www.scotusblog.com/?p=166124.
So after the ruling in US v. Windsor, the following questions are immediately concerning to Jack and Bill.
(1) Can Jack now carry Bill on his health insurance?
(2) Can Jack and Bill file a joint tax return?
(3) Can Jack and Bill get divorced in Georgia?
(4) Are Jack and Bill treated as married if one of them dies?
(5) Can Jack and Bill make spousal decisions associated with health care, banking, etc…?
Should SCOTUS eventually hold that individuals have a fundamental right to marriage and equal protection of marriages, that ruling would immediately apply to all States and render invalid any ban on same-sex marriage. With that issue still up in the air, the overriding issue at the moment is the interplay between the rights of each State to enact its own laws and the Full Faith and Credit Clause of the U.S. Constitution.
The Full Faith and Credit Clause of the Constitution, found in Article IV, Section 1 provides that “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”
The Clause is not unlimited and has been held that it does not require a state to uphold or enforce the laws of other states which are in direct contravention to the laws and policies of that state. Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U.S. 493, 502 (1939). This exception would seem to apply in the instance of marriage. In fact, the Clause was never held to require states wherein interracial marriage was banned to recognize interracial marriages of other states.
But not so fast…. marriages wherein the parties are first cousins (legal in some states, illegal in others) are not deemed invalid simply by moving across state lines based on the Full Faith and Credit Clause. Similarly, common-law marriages which are no longer recognized in Georgia (after January 1, 1997) are valid and recognized in Georgia if properly created in a sister state. Precedent would seem to be shifting in favor of mandating the recognition of lawful marriages of another state.
The Federal Circuit Courts have already split on this issue. In Finstuen v. Crutcher, the 10th Circuit Court found that Oklahoma must recognize a same-sex marriage in the context of an adoption birth certificate. In Adar v. Smith, the 5th Circuit ruled just the opposite.
So what to do with Jack and Bill? In the short term, Jack and Bill would be well advised to act as if their union will not be recognized in Georgia. They should utilize powers of attorney and other estate planning techniques to make sure that their estates and legal matters receive the maximum possible recognition currently available under Georgia law.