The Supreme Court’s Marriage Decisions Sets the Stage; As Disputes Arise, so Does Opportunity for ADR

Judge Patrick Mahoney joined JAMS after more than 40 years of experience as a judge and civil litigator. He is based in San Francisco and can be reached at pmahoney@jamsadr.com.

Recently the United States Supreme Court issued long anticipated rulings in the first marriage cases to reach the high court – United States v. Windsor and Hollingsworth v. Perry.  Taken together, the decisions represent a significant step in the central civil rights issue of this era – the rights and responsibilities of same-sex couples to marry. The cases do not hold that there is a federal constitutional right guaranteeing same-sex couples the right to marry.  The Justices of the Supreme Court sidestepped that issue on procedural grounds and the Justices’ dueling opinions foretell the arguments that will continue in states that do not recognize such unions.

It is important to understand that there will be a myriad of implementation issues, particularly for validly married same-sex couples who reside in a state that does not recognize such marriages.  It is estimated that there are more than 1,000 federal statutes and related regulations that consider the parties’ marital status.  Some benefits turn on the place where the marriage occurs (immigration), while others focus on the law of the state of the parties’ residence (Social Security).  Without question, state and federal courts will be at the center of the debate as a consequence of challenges in pending cases, to newly adopted regulations and interpretation of state law to a myriad of factual settings.

As a consequence, there remain numerous issues for couples to navigate in the family law arena when considering whether to marry, while married and in the course of dissolution.  If parties reside and were married in a state that recognizes same-sex marriages, legal issues will be governed by the well-developed body of law applicable to married couples. For parties who do not reside in such a state, the analysis will more complicated because many state law decisions turn on where the parties live. Thus, state laws that oppose same-sex marriages may result in findings contrary to the parties’ intentions.  A further layer of analysis may turn on whether the parties are domestic partners or in civil unions and how the state addresses the rights of parties in such unions.

When considering the many unresolved questions, the parties should seek skilled professionals to identify the issues and fashion a plan to address the uncertainties of this evolving area of the law.  This is particularly the case when children are involved. A mediator can understand the personal and family dynamics and how the parties’ values and beliefs impact the resolution of their issues. Additionally, a neutral can be effectively utilized to enable the parties to control the outcome of any pending dispute rather than the parties take the risk of an adverse result in this rapidly changing area of the law.

Given the many questions that remain, same-sex couples need guidance from knowledgeable practitioners and where the parties disagree, the assistance of effective and knowledgeable neutrals.  The marriage cases set the stage for an in depth examination of the rights and responsibilities of married same sex couples; the cases did not resolve the issues.