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.