Same Sex Marriage in New York after Obergefell v. Hodges: What Now?

By: Jillian DiLaura McGuire

There has been a tremendous sea change across the United States as it relates to same sex marriage, the majority of which has taken place almost entirely within the last decade. In the past three years alone, nearly two dozen states offered their residents some form of same sex union for the first time. On July 24, 2011, New York joined the ranks and passed the Marriage Equality Act, legalizing same sex marriage. It was the seventh state to do so.

In 2013, the Supreme Court struck down the federal Defense of Marriage Act (often referred to as “DOMA”) in the case United States v. Windsor. Now, exactly two years later, the Supreme Court has issued another landmark decision, Obergefell v. Hodges, 576 U.S. _____ (2015), which holds that marriage is a fundamental right guaranteed to same sex couples. In other words, gay marriage is now the law in all fifty states.

Marriage conveys certain rights to its participants, at both a state and federal level. For example, there are certain estate laws that govern inheritance rights and tax liabilities as between spouses, tax incentives that are available to married couples only, and the right to refuse to testify against a spouse in a criminal matter. In family and matrimonial matters, whether or not a couple is married can have a tremendous impact on how property is divided incident to divorce, whether or not support is ordered, and the issuance of Orders of Protection in cases involving domestic violence. In custodial actions in particular, there is enormous importance placed on whether the parents are biologically related to the child or have legally adopted the child. Where certain laws forbade this, custody decisions could be extremely complicated and often harrowing for the child.

Obergefell does not materially change the lives of married same sex couples in New York – for the most part. However, prior to this decision, certain states refused to recognize same sex marriage, even those performed legally in other states. Now, gay couples who have been married in New York can move to other states and have their union recognized and given the same protection and respect under the law. For same sex parents, this is especially important, both in terms of establishing the validity of their respective family unit and also in the event the couple faces divorce and a custody determination.

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