On Thursday, November 6, the Sixth Circuit Court of Appeals created a split in the circuits when it released its much awaited opinion and upheld the ban on same-sex marriages in Kentucky, Michigan, Ohio, and Tennessee. In a 2-1 ruling, the Sixth Circuit became the first federal circuit court to uphold a ruling banning same-sex marriage since the Windsor decision. The justices in the Sixth Circuit stated the issue was best left to the citizens to determine. Currently, same-sex marriage is legal in 32 of the 50 states.
There are 11 circuit courts of appeal that make up the federal circuit (the federal court directly below the Supreme Court), seven of which have either struck down bans on same-sex marriage or not heard an appeal because the states making up those circuits already recognize same-sex marriage. Now that the Sixth Circuit has ruled, there are still cases pending in two of the circuits, with arguments scheduled in January 2015 at the Fifth Circuit and a stay expiring in the 11th Circuit at that time.
The plaintiffs in the Sixth Circuit cases (there were six cases consolidated into one appeal) have already stated they will appeal to the Supreme Court. Since there is now a split in the circuits, the Supreme Court will almost surely grant certiorari and hear the appeal.
But, what happens to couples in Kentucky, Michigan, Ohio, and Tennessee? Their rights and lack of rights are the same that they were on Thursday morning, and similar to the rights of couples in Florida and the other non-recognition states.
If a same-sex couple from a non-recognition state like Florida, Michigan, or Ohio is married in a recognition state like Indiana, Illinois, or any of the 30 other states, for many federal purposes their marriage is deemed legal. The U.S. Attorney General has determined that those couples married in Michigan on March 22, 2014 have valid marriages for federal purposes.
A same-sex couple married in a recognition state, but living in a non-recognition state will be able to file joint federal taxes, receive military spouse benefits, receive FMLA if working for a federal employer, allowed the federal estate tax marital deduction, and recognized as a spouse for retirement plan purposes.
These same couples will be unable to file joint state income tax returns, have their spouse inherit their assets through probate (unless there is a will in place), allow their spouses to make medical decisions without valid health care directives, and will not be treated as married for purposes of determining social security, though they won’t be denied such social security benefit.
Couples married in recognition states, but living in non-recognition states will be unable to get a divorce in their state of residence. Further, two parent same-sex adoption is not generally available, which means that only one spouse is entitled to be treated as a parent.
We will need to watch the Supreme Court for the next step. Until then, same-sex couples living in non-recognition states will continue to live in limbo.