Gay Marriage: Legalization Implications in the Aftermath

The recent United States Supreme Court decision regarding gay marriage resolved one question, that is, whether it is legal for states to deny same sex couples the right to get married. And now opportunities will be presented to start answering all of the hypothetical questions which were posed before the national legalization of gay marriage. Issues such as whether gay marriage will lead to polygamy, whether gay marriage will lead to increased divorce rates, and how will gay marriage affect the practice of family law.

Many states will likely need to revise their statutes concerning marriage to be inclusive of same sex couples. Many of the marriage statutes in the various states refer to the participates in a marriage as “husband” and “wife”. In a marriage with two husbands, or two wives, a statute discussing the rights of either THE husband or THE wife could lead to problems in interpretation. Alternatively, the marriage license application forms could be amended so that the parties are required to select which spouse will be considered the husband, and which spouse will be considered the wife, regardless of the sex of the couple involved.

Gay marriage certainly can be used as an argument for those in favor of polygamy. Prior to the legalization of gay marriage in a few states, marriage was, in the eyes of the law, largely a choice made by a man and a woman to subject themselves to certain rules regarding the distribution of property and debts upon death or divorce, and an option to elect a filing status other than “individual” on one’s taxes. If two straight people could be allowed to make the choice to be subject to those laws, why could two gay people not be allowed to subject themselves to the same rules?

The polygamist may argue if two people are allowed to subject themselves to those laws, it is discriminatory to not allow persons who wish to subject themselves to such rules with more than one person, to do so. I do not believe that argument has much weight. The reason is, with marriage being limited to straight people, a certain class (gay people) was excluded from marrying the person they wanted to marry, even though another class (straight people) had that right. With nationwide legalization of gay marriage, no one is being denied a right that other people have. That is, no one (of legal age, and sound mind) is being denied access to the current rules and laws concerning marriage. That is, there is not one group of people who is allowed to be polygamists, while another group is being denied the right to be a polygamist.

The state does not have to give anyone the opportunity to marry. I believe a state, if it wished, could abolish the institution of marriage within its borders, and refuse to give anyone a marriage license. But if a state is going to give one class of people the right to marry, the United States Supreme Court now requires that state to allow equal access to the laws on the books to all classes of people. And right now, no state allows any one person to be married to more than one other person at a time.

I do not believe gay marriage will lead to higher divorce rates. Even if it were to be determined that gay marriages fail at a higher rate than straight marriages, it is unlikely that the overall divorce rate would be appreciably changed. Of all of the marriages taking place, the percent which are gay marriage is quite small.

I do not see a lot of change to the practice of family law as a result of the legalization of gay marriage. The biggest issues the family law attorney will need to wrestle with, at least initially, I believe, will be that which was discussed earlier – statutes designating one person the husband, and one person the wife. Whether gay couples can adopt children is more of a constitutional issue than it is family law issue, so I do not believe adoption is going to come into play in the family law lawyer’s office, unless and until two gay parents, at least one of whom is adoptive, are arguing over custody of a child. At that point, I do not believe the general practice of litigating a custody case is going to be much different than in the divorce of a straight couple.

Overall, I do not believe the legalization of gay marriage is going to lead to polygamy, increased divorce rates, or major changes in the practice of family law.