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Law Professor: ‘The Supreme Court Will Grant Same-Sex Marriage In All 50 States’

By Candice Leigh Helfand
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Two men hold hands during their wedding. (Photo by LUIS ACOSTA/AFP/Getty Images)

Two men hold hands during their wedding. (Photo by LUIS ACOSTA/AFP/Getty Images)

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WASHINGTON (CBSDC) – Last May, wives Philippa and Inger Knudson-Judd spoke publicly of their struggles with their long-distance marriage. The exclusionary  nature of the Defense of Marriage Act rendered Inger unable to sponsor Philippa for citizenship as her spouse, despite the legality of their marriage.

The couple was instead forced to live and love with an ocean between them.

“The longest we have been in the same place is 89 days in over four years,” Inger told CBS Las Vegas at the time. “That’s less than three months.”

Theirs is one of many stories that highlights a broad range of issues facing partners in same-sex marriages – complications surrounding immigration, medical coverage, hospital visitation rights and child adoption are merely some of the prevalent issues LGBT couples must attempt to circumvent or overcome.

In June, however, history made a move in their favor when the Supreme Court ruled that DOMA – which had been signed into law in 1996 by then-President Bill Clinton and defined marriage as exclusively heterosexual – was unconstitutional.

A 5-4 vote ultimately took down the controversial piece of legislation, opening the door to the possibility of nationwide legalization and recognition for same-sex marriage.

“What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage[s],” Justice Anthony Kennedy wrote in the ruling on United States v. Windsor. “This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person.”

He added, “Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.”

The case of Hollingsworth v. Perry also dealt with the subject of same-sex marriage, specifically in regards to Proposition 8, which amended California’s Constitution to define marriage as “a union between a man and a woman.” On the same day they announced the decision to amend DOMA, the Supreme Court also ruled in favor of marriage equality when they vacated and remanded that measure.

Thousands of couples such as the Knudson-Judds saw hope for the first time in a long while after the landmark decisions were handed down by the court.

However, despite widely maintained belief to the contrary, the rulings did not eradicate all issues facing same-sex couples. Not only is pervasive bigotry still found in all corners of the country against homosexuals, but those residing in states which don’t officially recognize same-sex marriages or domestic partnerships are still fighting for basic rights as well.

“[B]ecause of the fact that there are certain states that have marriage equality and certain states that don’t … there’s a huge disparity between someone … living in New York and someone across the river in New Jersey. That’s one of the biggest hurdles facing gay and lesbian couples [today],” Ross Murray, Director of News for the Gay & Lesbian Alliance Against Defamation, told CBSDC.

Alfred Chiplin, a senior policy attorney at the Center for Medicare Advocacy, Inc., also mentioned the matter of marriage as it is defined on a state-by-state basis, but did highlight some benefits now available to all couples of all sexual orientations.

He told CBSDC, “When you talk about Medicare … it’s a federal program. They will be able to get whatever spousal benefits might be available to them [through it] because it’s federal.”

University of Utah law professor Clifford Rosky further focused on how the decision could now benefit all same-sex couples, regardless of where they live in the United States.

“Federal law grants more than 1,100 laws and benefits to married couples if the federal government recognizes the marriage. Now, 1,100 laws is a lot, and what you’ll see is requests for recognition for a broad range of purposes – the ability to file joint tax returns with the federal government and the IRS as well as the state, social security benefits in the event of the … death of a spouse or parent, immigration purposes for a partner who is not a citizen … and many others,” he said, but noted that the battle isn’t over yet.

Rosky additionally remarked to CBSDC, “It’s not as if the federal government now automatically grants marriage to same-sex couples. We’ve basically been reset back to before DOMA, and Congress refers to each state’s definition of marriage.”

As the fight for marriage equality finds itself relocating to more localized stages throughout the nation, proponents of it are encouraged by their chances and by the galvanizing nature of the Supreme Court’s rulings on the LGBT community.

“One thing the ruling has done is it’s kicked up momentum for a marriage equality push. What we’ve seen in the past two months are renewed efforts to try and get it passed,” Murray said, mentioning lawsuits and other efforts made around the nation. “There’s a renewed momentum, but in some states it’s going to be a longer process just because … even though they may want to undo [the laws currently that are in place], it’s going to take a bigger process in order to do it.”

Battles for equality for homosexual, bisexual and transgender persons are also spreading into other arenas – as seen, for example, in a California mayor’s efforts to end the ban on accepting blood donations specifically from gay men.

“This is blanket discrimination,” Campbell Mayor Evan Low was quoted as saying on the matter by CBS San Francisco. “Just because you are gay you have a lifetime ban.”

In the meantime, some are advising same-sex couples to take advantage of what they can, when they can.

Said Chiplin, “From an advocacy perspective, we try to argue that … domestic partnerships and other partnerships and arrangements should be honored as marriages. There’s a lot of sorting out that needs to occur … but people should go ahead and apply for benefits to preserve their rights and their timing in the review process.”

Though there is still a significant amount of road ahead to travel down, many see hope for true marriage equality and acceptance of same-sex unions throughout the nation, including those most familiar with the law.

“As a lawyer, and as a professor of law, I can say … that it’s perfectly clear what’s going to happen eventually. The Supreme Court will grant same-sex marriage in all 50 states. It’s just a question of which states, when,” Rosky said, highlighting the words of the Justices themselves to make his point. “”States’ rights were not why [the justices] said DOMA was unconstitutional. They said that DOMA violates equality and freedom of gay couples.”

He also mentioned concern on the part of the Supreme Court for children who are negatively affected by the wedge forced between heterosexual and homosexual partners.

Rosky noted, “For decades, opponents of gay rights and same-sex marriage called gay people child molesters, and accused them of indoctrinating children. When the Supreme Court says it’s actually the people who are opposed who are harming children, it’s a sign that you’re [losing].”

Those who are most affected by the rulings and their implications are also hopeful – and somewhat fearful.

“Honestly, it’s hard to believe that our government is going to stand on the right side [of this issue]. I know that sounds bad, but when it comes down to a ruling like this, there have been so many disappointments in the past, and we were trying not to hope,” Knudson-Judd told CBSDC during a follow-up interview. “But we are very excited and absolutely shell-shocked.”

The path to reuniting her family has not been smooth, either. Concerns regarding legal fees for processing Phillipa’s application plagued the family, until friends, family and an online community of supporters rallied to help them raise the funds needed to get the necessary paperwork completed and processed.

Now, the family is one of many playing the waiting game – waiting for answers, waiting for the next step, and ultimately, waiting for a resolution that allows them to quietly live their lives together as a family. In the meantime, all they can do is try to be patient as they prepare their home for the final arrival of its third resident.

“I’m so desperately afraid that, for some reason, something is going to screw things up,” Inger confessed. “It’s not in our hands – we’ve done everything we can. Now we have to trust that everything is going to work out in the fashion that we’re hoping.”

She added, “It’s kind of stressful, but very exciting. We can see the end of it.”

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