The U.S. Supreme Court held today that same sex couples have a constitutional right to marry, and that state bans against same sex marriages are unconstitutional. Today is an historic day. Period. Today will be remembered. To say it is unlikely that another Supreme Court decision in my lifetime will have as big an impact on American culture as today’s decision, is an understatement. Today’s decision in Obergefell will impact the whole world, and it will impact the world in more ways than most people can comprehend.
Pronouncements of such significance propagate ripples that turn into waves of questions. Most of us know and love a number of gay and lesbian couples. Some of them have been together for decades. Some longer than our “married” friends. As a family law attorney, one of the questions that come to my mind is, will informal marriages between men or between women that took place decades ago now be recognized by courts as having existed for those decades? Let’s face it, lots of people have stood before their friends and declared themselves “married.” Were there pictures? Who has them? Marriage may have been a great fantasy or a dream, but that fairytale just got real.
The effect of the recognition of hundreds of thousands of previously unrecognized marriages is difficult to comprehend. The same is true for current and future relationships. Where yesterday you could proudly declare your gender preference by introducing someone as your wife or your husband, you may now be evidencing an informal marriage. In hind sight, your introduction of your life-partner last year or a decade ago may have established your informal marriage here in Texas. The test for an informal marriage in Texas only has three prongs: the couple (1) agreed to be married, and (2) after that agreement lived together in this state as husband and wife and (3) represented to others that they were married. See Texas Family Code § 2.401(a)(2). It has long been recognized in Texas that the third prong is evidence of the existence of the first prong. In other words, if you live together and represented in each other’s presence that you are married, then that is evidence that you have indeed agreed to be married. That effectively reduces it to a two prong test.
If you read the statute, you can ignore the fact that it refers to husband and wife or a man and a woman. By implication and extension, the Supreme Court changed that today as well.
Getting real for a moment, there is no question that many partners have been living under the cover of the illegality of same sex marriages. Now that same sex marriage is “legal”, I feel compassion for the couples that will split up because one or the other is unwilling to take that walk down the aisle. There are also those who will finally file for divorce, because now they can get half.
For same sex couples, the world was a lot simpler yesterday. Yes, it had it’s challenges, and the positive changes may well outweigh those challenges, but in some ways that world just got a lot more complicated.
What effect will this have on the world? Only fifty years will tell. What effect will it have on same sex relationships that exist today? Six weeks or six months may tell.
A familiar sun may rise in the east tomorrow – but it’s a new world.