Where do we go from Here?

June 29, 2015 § 1 Comment

SCOTUS has spoken in Obergefell v. Hodges, handed down last Friday, making it unlawful for any state to refuse to issue licenses for same-sex marriage (SSM) to persons applying within the state, and making it unlawful for any state to refuse to recognize SSM that was performed legally in another jurisdiction. That pretty well wipes out Mississippi’s position on the issue.

There is a hiccup in Mississippi, however, in that the AG takes the position that, until the 5th Circuit lifts the stay imposed by US Dist. Judge Carlton Reeves in the litigation challenging Mississippi’s law that is on appeal in New Orleans, Mississippi may not issue marriage licenses for SSM.

After that is resolved, however, what impact will Obergefell have on family law in Mississippi? Here are a few of my own opinions:

  • Ferguson will still govern equitable distribution, Albright will still govern child custody, the statutes and Huseth will still govern child support, and so on and so on. For the life of me, I do not see any substantive issues that will not be resolved by the familiar substantive rules that are already in place.
  • Likewise, our procedures remain the same. Only the gender of the parties is different.
  • I heard some lawyers Friday opining that chancery courts need to brace for a flood of divorces from SSM. I don’t get that logic. Oh, I am sure there will be some, but there have to be the marriages first, and my impression is that most gays in Mississippi have been awaiting this development rather than going to other states for SSM, since that other-state marriage would not be recognized under our law anyway.

I think this decision will have the same kind of aftermath as Roe v. Wade. That 1973 case (that’s 42 years ago, for the math-challenged) spawned legislation and litigation that continue to this day as opponents try to probe for a way around it or to ascertain its limits, and proponents try to enforce it. Both Obergefell and Roe v. Wade are substantive due process cases, and those just take longer people to accept, if they ever do.

As with Roe v. Wade, this latest case involves issues that sound in morality and religious teaching, rendering compromise and accommodation much less likely. the role of SCOTUS is to interpret the Constitution, not the Bible. We all know that, and I, for one, prefer for SCOTUS and the other two branches of government to stay out of the Bible-interpretation business. Still, when cases like this fall in that overlap area, they spawn a lot of consternation among the citizenry.

Oh, and as a chancellor, it is my role to apply the law as I am presented with it. That I will do. I have read the majority opinion and the dissents, so I know what is required of me.

As lawyers, you will represent your clients. Those who benefit from the decision whom you take on as clients, as well as those who challenge it.

I have to confess that I was a little surprised at the scope of the decision. I thought the court would say that states must recognize the legal marriages of other states, but that the rules of marriage would be left to the states. That proves, among other things, that I am no constitutional-law scholar.

So, these are my preliminary thoughts. It will be interesting to look back at this 42 years hence — in the unlikely event that I’m still around.

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§ One Response to Where do we go from Here?

  • Erik Lowrey says:

    Thank you Chancellor…well written and concise. I agreed that it will take time for some to recognize the change and some never will, just like Roe.

    Sent from my iPad

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