The State of Same-Sex Marriage – and Divorce – in the U.S.

 Posted on February 09, 2015 in Divorce

A Florida judge recently allowed a gay couple to divorce, even though the state did not officially recognize the couple’s right to marry in the first place. However, that might change soon. In August 2014, a federal district judge overturned Florida’s gay marriage ban. Both the Eleventh Circuit Court of Appeals and the U.S. Supreme Court refused to extend a stay on the ruling, which means that gay couples were able to marry beginning in January.

Florida’s first same-sex divorce is a harbinger for gay couples in Illinois, where gay marriage became legal in June 2014. Illinois gay couples now have the same rights as straight couples, which includes the right to divorce. Not every state permits same-sex marriage, though, so a gay couple that marries in Illinois could move somewhere that does not recognize their marriage – or their divorce.

Same-Sex Marriage and the U.S. Supreme Court

In October, the Supreme Court declined to hear several challenges to various same-sex marriage bans. While that decision surprised many court-watchers, others predicted the court would not wade into the thicket without a circuit split. In other words, there needed to be a difference of opinion among the federal circuit courts of appeals regarding the constitutionality of same-sex marriage bans before the Supreme Court would consider the issue.

The Sixth Circuit’s decision upholding same-sex marriage bans in Kentucky, Michigan, Ohio and Tennessee produced the necessary circuit split. The Supreme Court will decide whether or not to grant certiorari (i.e., whether or not to hear the case) as soon as January 9.

Even though same-sex marriage (and same-sex divorce) is legal in Illinois, a Supreme Court decision in the Sixth Circuit case could have significant ramifications across the country. If the court upheld the Sixth Circuit, then the marriage and divorce rights currently enjoyed by gay couples would be dissolved. If the court overturned the Sixth Circuit, gay marriage would become legal everywhere in the United States, meaning that a gay couple’s marriage (and divorce) in Illinois would be recognized in all 50 states.

A grant of certiorari would not immediately affect Illinoisans. First, the Supreme Court would ask all affected parties to submit legal briefs presenting their arguments. Then the court would schedule oral arguments, which gives the parties an opportunity to present their case before the nine justices. The oral argument is more like a question-and-answer session than a lecture. The justices ask questions about the opposing legal arguments, and the parties must provide answers.

After the court hears oral arguments, the justices will discuss the constitutional question and vote on the case. It takes a majority to either overturn or confirm a lower court’s ruling.

Our experienced Kane County family law attorneys stay abreast of all relevant issues pending in the U.S. Supreme Court. If you have a question about how a Supreme Court family law decision – or another federal court decision – affects your legal rights, contact us today for a consultation. We can assist those in the St. Charles area.