Supreme Court same-sex marriage compromise could prove costly to couples and kids

When Mickey and Oren finalized the adoption of their son in New York in 2006 they were ecstatic. The two dads would now be eligible to receive an amended birth certificate that listed both of them as their son’s legal parents, allowing them to fulfill a broad range of parental obligations.

A clerk in Louisiana (their son’s birth state) thought otherwise and refused their request. The two dads took the clerk and the state of Louisiana to court.

To their dismay, the 5th Circuit Court of Appeals sided with the state. Although the Constitution requires judicial actors in one state to recognize the opinions of judicial actors in other states, that requirement, argued the court, does not extend to non-judicial actors who are asked to enforce these decisions.

Put simply, although Louisiana could not invalidate the adoption, the clerk did not have to give the two dads their new certificate. The couple asked the Supreme Court to intervene, but the Court declined, leaving the dads with very little documented proof that they are their son’s legal parents.

That same high court is now considering the constitutionality of state marriage bans against same-sex couples.

The justices have three options: overturn all remaining bans; let the bans remain in place; or compromise and require states with bans to recognize the marital status of lesbian and gay couples married in other states. That final, compromise, option could prove to be costly for gay and lesbian couples and for the courts.

Will the Supreme Court seek a compromise decision?

At first blush, this third option seems like the best bet for justices who are sympathetic to gay couples but concerned about the ramifications of overhauling an institution that, as Justice Kennedy explained, “has been with us for millennia.” Gay couples would be provided with the legal status of marriage while anti-marriage equality states are permitted to slowly digest the reality of same-sex marriages without having to perform them in house.

It is not unheard of for the Court to incrementally attack social inequalities. School desegregation and housing rights are just a couple examples of a generally cautious judicial approach to social change.

A closer look, however, reveals the costly consequences of this kind of compromise for gay and lesbian couples.

First, as Mickey and Oren’s story demonstrates, in the eyes of at least some courts, there is a difference between recognition and enforcement. While the Supreme Court may rule that states are constitutionally required to recognize (but not license) same sex marriages, gay and lesbian couples may still be denied the privileges of that status–health care coverage, parental recognition to name just a couple.

Mickey and Oren’s story (and there are others) suggests that courts have considerable latitude in determining both whether states must accommodate the administrative requests of legally married same-sex couples and how these requests will be handled.

While some states may elect to treat same-sex married couples as they would heterosexual couples, others may decide to avoid or delay administrative compliance.

If the Court chooses the compromise option outlined above, states can still deny lesbian and gay couples the substantive benefits of marriage.

Same-sex couples may have to carry proof-of-marriage documents

If a state is required only to recognize, rather than perform, same-sex marriages, what will they require as proof of a same-sex couple’s marriage? Will same-sex couples need to carry a copy of their wedding certificate in order to access the benefits of marriage? What will happen if they forget their documents?

Pam Yorksmith forgot to bring her son’s birth certificate, which listed she and her wife as co-parents, when her son became sick and was rushed to a hospital in Ohio. Understandably, the last thing on Pam’s mind was collecting the documents proving her parentage. However, although she was her son’s legal parent, without the document proving her parenthood, the hospital refused to recognize her as such. The hospital left Pam and her wheezing baby without assistance for an hour while the staff attempted to reach Pam’s wife, the biological mother.

If the Supreme Court chooses to compromise, the legal status of same-sex couples may depend on the availability and legitimacy of their documents.

Michigan couple April DeBoer and Jayne Rowse are petitioners in a same-sex marriage case before the US Supreme Court.REUTERS/Rebecca Cook

The only recourse that gays and lesbians have to combat state and bureaucratic end-runs around their marital and parental rights is to (once again) seek judicial intervention.

After winning the legal right to marry (through the courts) couples in Alabama, Pennsylvania, Indiana and Iowa (and others) have been forced back to court because their states still refused to grant them co-parenting rights or issue birth or death certificates recognizing their marital or parenting status.

As one registrar explained, “Basically, the same-sex ruling doesn’t really change the way a birth record is done, because birth certificates all have to do with biological parents.”

If the Court chooses to compromise, the rights of same-sex couples may hinge on laborious and expensive case-by-case interventions.

Even in states that permit same-sex couples to marry, opposition still creates obstacles that require judicial redress.

A recognition-only ruling, which upholds anti-gay sentiments, will legitimize opponents’ passions for dissent. And though gay couples may be able to rest on the laurels of their legal status, forcing states back to court hardly provides immediate help to same-sex couples who are denied essential resources or benefits.

For one, litigation is lengthy. Running to court will not help a gay parent or spouse, in the moment, when he or she is being denied access to their sick child at a hospital or to their spousal health care benefits while battling a life-threatening illness.

What about custody battles?

What’s more litigation is unpredictable.

Years after marriage equality arrived in New York, divorcing gay and lesbian couples were still left wondering about the relevance of New York’s new law in resolving custody disputes.

One family court judge argued in a recent two-mom custody battle that the non-biological mother, despite having been married to her son’s biological mother, did not have standing to seek visitation or custody of her son. Why? Because their son was born before their marriage became legal. The judge admitted that the decision may have produced a different outcome had the non-biological parent been male.

State and judicial skittishness towards acknowledging same-sex couples and their rights will persist if the Supreme Court compromises.

Any decision that permits these bans to continue, in any form, will, in my view, encourage opponents of marriage equality to seek out loopholes that would disrupt the lives of gay and lesbian couples and delay the full spectrum of marital privilege.

If you are interested in reading more on the subject, please see “The role of public opinion in the Supreme Court"

Alison Gash does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.