Marriage and the courts

The same sex marriage battle is essentially over. A mere 20 years after the Defense of Marriage Act was passed by Congress to make traditional marriage the law of the land, same sex marriage now has constitutional protection thanks to the United States Supreme Court.

There are still some simmering skirmishes. Some claim a religious reason for not recognizing the civil rights of other citizens to be married. This is not a legally convincing argument, as painful as it might be for some to accept. Certainly, governmental officials have no discretion to stamp a religious test on the right to marry.

Marriage is a unique civil relationship joining just two people together into a “married couple.” Other legal entities can be formed in commerce, such as partnerships, limited liability corporations, closely held and public corporations, and joint ventures, but none of them have quite the intrinsic power of a marriage.

The consequences are profound. A marriage is taxed differently than individuals, as heads of households.

The fact of a marriage grants special inheritance rights. A married couple has rights to make medical decisions (and learn about conditions) single people do not have. Health insurance can be extended to a spouse, but it’s not available to just a domestic partner.

Yet, there is almost always at least a religious texture to marriage. A marriage license, issued by a civil authority, is certainly needed for the law to recognize the joining of two souls in marriage. However, most marriages are also consummated in a temple, synagogue or church.

The religious quality of a marriage can be quite powerful. Examples are legion. If a couple is married in the conservative Jewish tradition, a woman may have to secure a “Get” from her husband for the divorce to be granted by a rabbinical tribunal.

Or, in the Catholic tradition, where divorce is considered a sin, the marriage has to be “annulled,” with a dispensation from the Pope granting the annulment.

In either case, failure to follow the religious traditions may prevent remarriage within the faith or, even worse, can involve religious exile, stripping a person of their status within the community.

For many of us, then, marriage is not just a civil relationship, it is also one blessed by a religious authority.

Legally, though, this just has no relevance. As the United States Supreme Court has stated, two people have the constitutional right to be married, regardless of the sex of these lovers. Marriage is just too fundamental to the rights of citizenship.

Without uniform rules governing the consummation of marriage, and the ability to divorce, there would literally be hundreds of traditions impacting the fundamental family core that our country has depended on to make us such a great and strong country.

When marriage is denied a couple, the consequences can be devastating. While there are probably millions of similar stories, I’d like to share one I know some of personally (changing the names for privacy reasons).

Allison and Greta lived together as a loving couple for almost 20 years. Greta depended on Allison, who was the main breadwinner and a business owner. Along they way, Allison adopted two of her family members as her daughters; because same-sex marriage was illegal, Greta was barred from becoming a parent of these two children. Allison’s family was furious and hated Greta.

Several years after the children were adopted, Allison became very sick and died after a year of fighting off her inevitable death. When Allison passed, her family took out their revenge on Greta. They could not kick her out of the house because it was co-owned; they could not keep her from receiving the life insurance proceeds (although they tried); but, they barred her from the business and took the children away from her. Greta was powerless against them.

Sadly, if this had happened today, the result would be different. Allison and Greta could have adopted the children together and been considered a married couple, insulating themselves from the searing hatred of Allison’s family. This is why marriage cannot be considered a religious sacrament and it must be a legal right, because of the millions of Allisons and Gretas out there who just want the same legal rights, responsibilities and protections the rest of us have if we decide to get married. As you can see, the Supreme Court clearly got this one right.

Local attorney Jim Rockefeller owns the Rockefeller Law Center and is a former Houston Co. Chief Assistant District Attorney, and a former Miami Prosecutor. Visit www.rockefellerlawcenter.com to submit confidential legal questions, and to review former articles and Frequently Asked Questions.

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