June 27, 2015 at 4:56 pm EDT | by Chris Johnson
Hurdles remain for gay couples after marriage ruling

Obergefell v. Hodges, gay marriage, same-sex marriage, marriage equality, gay news, Washington Blade, Vin Testa, David Baker, Samuel Knode, John Becker

What’s next for gay couples after the Supreme Court ruling? (Washington Blade photo by Michael Key)

The U.S. Supreme Court has struck down state laws against gay nuptials, but logistical hurdles remain in place before the marriages of same-sex couples will be treated equally under the law and afforded benefits equal to opposite-sex unions.

The first, obviously, is they must get married, which is already taking place in the 13 states where prior to the ruling same-sex nuptials weren’t legal.

In Mississippi, at least three same-sex couples were married at the Forrest County Courthouse, although the office for the time being isn’t issuing any more licenses. Among those who wed — and likely the first same-sex couple to wed in Mississippi — is Amber Hamilton and Annice Smith of Laurel, who have been together for six years.

According to a brief report in the Associated Press, a county in South Dakota has also issued a same-sex marriage license in the aftermath of the court ruling.

A number of same-sex couples married in Georgia, including Lauren and Paige Hightower, who became the first same-sex couple to wed in Bibb County.

“It’s been a plan a long time,” Lauren is quoted as saying in the Telegraph. “As soon as we knew the Supreme Court would rule during this term, I said, ‘As soon as the decision comes down, we’re going. It was never our goal to be first.'”

But formally a process remains in which appeals courts that were considering marriage litigation need to dispense with cases before them to comply with the Supreme Court’s decision in favor of nationwide same-sex marriage. There’s no deadline by which they to act, but courts are expected to do so quickly and attorneys are seeking to speed things up.

For that reason, attorneys general in Mississippi and Louisiana say same-sex marriage remains prohibited in their states until an order is issued by the U.S. Fifth Circuit Court of Appeals.

Mississippi Attorney General Jim Hood, a Republican, said the Supreme Court decision is “the law of the land,” but the Fifth Circuit needs to act as a matter of procedure.

“When the 5th Circuit lifts the stay of Judge Reeves’ order, it will become effective in Mississippi and circuit clerks will be required to issue same-sex marriage licenses,” Hood said.

Adam Romero, senior counsel and Arnold D. Kassoy Scholar of Law at the Williams Institute at UCLA said the Supreme Court’s ruling immediately only applies to the Sixth Circuit, the decision without a doubt has judgment on other states.

“There may be some delay before those remaining states fall into line, as lower courts still need to apply the Supreme Court’s decision to strike down the remaining states’ bans,” Romero said.

But Romero warned that by waiting for lower courts to decision, states could be subjecting themselves to additional litigation costs if they don’t allow same-sex couples to wed immediately.

“State officials in places such as Georgia, Mississippi and elsewhere with bans still in effect would do well to stop enforcing marriage bans as soon as practicable, because the writing is on the wall,” Romero said.

In Texas, U.S. District Judge Orlando L. Garcia has lifted his stay on his injunction issued in February 2014 against the state’s ban on same-sex marriage. According to the Texas Observer, at least 18 counties were issuing marriage licenses to same-sex couple as of 5 p.m. MDT.

Roberta Kaplan, the lesbian attorney who successfully argued against the Defense of Marriage Act and is representing same-sex couples in the Mississippi marriage case, submitted a filing on Friday calling on the Fifth Circuit to act immediately.

“[T]he Supreme Court’s ruling in Obergefell v. Hodges has rendered moot the questions pending before this court,” Kaplan writes. “The gay marriage bans at issue in Obergefell are identical in all relevant respects to those at issue here. Since Obergefell held that such bans are unconstitutional, delaying issuance of the mandate here would serve no purpose.”

In the Puerto Rico marriage case before the U.S. First Circuit Court of Appeals in Boston, plaintiff same-sex couples, represented by Lambda Legal, and the commonwealth, which has discontinued defense of its marriage ban in court, issued a joint filing calling a decision affirming the jurisdiction’s marriage ban in unconstitutional.

Another issue that remains in the aftermath of the Supreme Court is the flow of federal benefits to married same-sex couples. Although the Obama administration has extended many federal benefits to gay couples in the aftermath of the decision against the Defense of Marriage Act, certain spousal Social Security and veterans benefits were still being withheld to couples in states without marriage equality.

Now that the Supreme Court has issued its decision, those benefits should be flowing nationwide. After all, there are no more states without marriage equality where those benefits can be withheld.

But the neither nor White House, the Justice Department didn’t respond to a request to comment on Friday to affirm these benefits would now be available nationwide. The Department of Veteran Affairs didn’t respond to a request to comment specifically on veterans.

LaVenia LaVelle, a Social Security spokesperson, was vague when asked by the Washington Blade about whether all Social Security benefits would flow to married same-sex couples across the country.

“The Supreme Court has issued its decision in the Obergefell case,” LaVelle said. “The Social Security Administration continues to take claims, and we are working with the Department of Justice to analyze the decision and provide instructions specific to the decision for Americans who rely on our programs and services. We will keep you posted as we update our policy.”

Nonetheless, LGBT advocates who advocate for benefits for same-sex couples declared victory in the aftermath of the Supreme Court ruling.

Ashley Broadway-Mack, president of the American Military Partner Association, said the decision means LGBT people in the military finally have access to full benefits.

“From burial rights to veteran home loans to burial rights, today’s historic Supreme Court decision bringing marriage equality to every state in our great nation means that LGBT military families will finally have access to the full federal veterans benefits they’ve earned,” Broadway-Mack said. “Nationwide marriage equality is not just a huge victory for LGBT people, but for America.”

Eric Kingson, founding co-director of Social Security Works, had a similar victory cry with regard to Social Security benefits.

“The Supreme Court’s decision to make marriage equality the law of the land is a huge victory for justice and fairness for all American families, now and in the future,” Kingson said. “Now, married same sex-couples in every state and their families will be able to claim their earned Social Security protections — the same spouse, survivor, and young dependent benefits as adults and children in every other marriage.”

The ruling has also given attention to the lack of LGBT non-discrimination protections in federal law. Same-sex couples may be able to wed throughout the country, but in 29 states, they could be fired from the jobs immediately afterward for participating in the wedding. No state law prohibits employment discrimination against transgender people in 32 states.

Jerame Davis, executive director of Pride at Work, cautioned that the “we are not done” in a statement praising the Supreme Court’s marriage ruling.

“The very real possibility that a worker could marry the person they love on Saturday and then get fired from their job Monday morning when they show pictures around the water cooler is a looming threat to many workers who do not enjoy the protections of a union collective bargaining agreement,” Davis said. “While a union contract will protect workers in the workplace, not every workplace is a union shop, which is why we need a comprehensive national non-discrimination law to protect these workers on the job, at home, and in the public square.”

In a joint statement, Rep. David Cicilline (D-R.I) and Sens. Tammy Baldwin (D-Wis.), Cory Booker (D-N.J.) and Jeff Merkley (D-Ore.) forecast their introduction of a comprehensive non-discrimination bill in a response to the ruling. The bill was set for introduction this spring, but hasn’t yet been introduced.

“Just as we needed Congress to pass legislation to fully realize the promise of previous Supreme Court decisions recognizing fundamental civil rights, Congress must act to fully realize the promise of today’s ruling by introducing and passing legislation to finally provide comprehensive federal non-discrimination protections to LGBT Americans,” the lawmaker said. “Discrimination has no place in employment, housing, public accommodations, education, credit, federal funding, or jury service, just as it has no place in marriage. We are committed to adding protections for LGBT Americans to federal anti-discrimination laws.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

  • Nothing. Her highness Andy Sullivan says we are done now.

  • Just because the SCOTUS has made marriage equality the law of the land doesn’t mean you can count on the current US Congress to do the right thing and pass nationwide anti-discrimination laws to protect GLBT in America. We couldn’t get a fair up and down vote in the House on ENDA because John Boehner wouldn’t let the bill get a vote saying it wasn’t necessary. That reality hasn’t changed.

    Our enemies will bottle up our legislation every chance they get to prevent it from getting votes out of fear that it may pass and with Obama as President will get signed into law. They don’t care about being on the wrong side of history so just stop with that childish rant. They care about winning at our expense.

    I’m also sure we can expect social conservatives to try and undermine if not reverse the marriage equality decision. They will keep pushing for a Constitutional convention to amend the US constitution to defy marriage as between a man and a woman. Thirty-four states are required to call for a convention. I think we had at least that many with bans against marriage equality. Don’t become complacent. You still have a lot of work to do to convince people that amending the constitution is wrong and the decision made by the court was the right one!

    Just like the right to abortion wasn’t settled by Roe V. Wade in 1973 for social conservatives, this marriage decision will be under threat continuously. It’s the reality so keep fighting for your rights and never take them for granted! They were taken away from gays in Nazi German when social conservatives took over the country there. Don’t assume it can’t ever happen here.

  • The states need to ditch marriage.

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