What are your Rights, Same Sex Marriage, and Couples?
By Candace M. Williams and Natalie V. Teston
Family Law Department
Coleman, Chambers, Rogers, & Williams, LLP
As everyone is increasingly aware, lesbian, gay, bisexual and transgender (hereinafter LGBT) rights and the laws that go with those rights are in a constant state of evolution. This is due to new case law being handed down in both state and federal courts, new legislation on the state and federal level, and advocacy for change due to ever increasing pressure from the general population. Higher and higher percentages of the population are found to be in favor of increasing LGBT rights, including the now fundamental right to marry, with this issue being a hotly contested one in the upcoming 2016 presidential election.
Georgia is no exception to this continuous shift. Georgia was affected, just as any other state, by the most recent United States Supreme Court decision in this arena, Obergefell v. Hodges (135 S.Ct 2584). Hodges was decided on June 26, 2016 and ruled all state level same sex marriage bans unconstitutional, stating that all States are now required to issue marriage licenses to same sex couples in the same manner they are issued to heterosexual couples and are required to recognize as legitimate any same sex marriage legally performed in another State. This decision affected Georgia on both fronts as Georgia has both a ban on issuing marriage licenses to same sex couples, and a ban refusing to recognize same sex marriages performed out of state.
GEORGIA LAW BACKGROUND
The bans on same sex marriage in Georgia come from a voted-on amendment (76% passage rate) to the Georgia Constitution in 2004 and a Georgia’s DOMA codified at O.C.G.A. § 19-3-3.1 and written into law in 1996. The constitution amendment is written in Article 1, Section 4, Paragraph 1 and states "This state shall recognize as marriage only the union of man and woman. Marriages between persons of the same sex are prohibited in this state." It goes on to state that no same sex marriage performed outside Georgia will be recognized in Georgia and no Georgia court will have jurisdiction to grant divorce or separate maintenance for such marriages. Georgia’s DOMA reiterates the same views stating: "Marriages between persons of the same sex prohibited; marriages not recognized." This code section bases its reasoning on public policy.
Up until June of 2015, this amendment and code section governed same sex marriage policy in Georgia. No licenses were granted to same sex couples for marriage and any benefits afforded same sex couples by either other States or federal law were not recognized for same sex couples in Georgia. For example, federal taxes through the IRS used the place of celebration rule, meaning as long as the couple was legally married, they had the option to file a joint tax return. In Georgia, this was impossible and a same sex couple would have to file five different returns (the federal joint return, two single returns for Georgia state taxes, and two single ‘dummy’ federal returns to accompany the state returns) just to comply with federal and Georgia law. Another hardship placed on same sex couples in Georgia was the DMV’s refusal to change a name on a Georgia driver’s license for a same sex partner who got married in another state. The partner would be forced to utilize the name change petition process through the court system just to be able to get a new name on their driver’s license.
Further, the only way to get a divorce as a same sex couple in Georgia before the June 2015 ruling was if the couple had been married in one of the five jurisdictions that allow non-resident divorces. These jurisdictions are District of Colombia, California, Delaware, Minnesota, and Vermont (if no children). However, all of these jurisdictions have residency requirements before one can file for divorce that range from ninety days to six months. Without the ability to obtain a divorce, many same sex couples were forced to remain married, both in Georgia and many other states they may have traveled to. They were also prohibited from ever remarrying under criminal bigamy statutes.
OBERGEFELL V. HODGES AND IMPLICATIONS
The landmark decision of Obergefell v. Hodges (135 S.Ct 2584) was argued on April 28, 2015 and decided on June 26, 2015. The majority decision was written by Justice Kennedy and joined by Justices Ginsburg, Kagan, Sotomayor, and Breyer. Dissenting opinions were filed by Justices Thomas, Scalia and Alito and Chief Justice Roberts. The basic holding states the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. The Court further explained that "Since same sex couples may now exercise the fundamental right to marry in all States, there is no lawful basis for a State to refuse to recognize a lawful same sex marriage performed in another State on the ground of its same sex character."
This decision clearly impacts both the Georgia constitutional amendment and Georgia’s DOMA that place a ban on same sex marriages and recognition of same sex marriages performed in other states. As of now, both of these provisions still exist in Georgia. However, both Attorney General Sam Olens and Governor Nathan Deal have stated that Georgia will follow the Supreme Court’s Ruling. Sam Olens petitioned the Supreme Court to allow Georgia’s ban to stand, but after this petition was denied, he issued a public statement: "In our system of government, the Supreme Court bears the ultimate responsibility for determining the constitutionality of our laws. Once the Supreme Court has ruled, its Order is the law of the land. As such, Georgia will follow the law and adhere to the ruling of the Court." Governor Nathan Deal also disagrees with the Court’s ruling, but agrees with Olens that Georgia will follow the ruling: "While I believe that this issue should be decided by the states and by legislatures, not the federal judiciary, I also believe in the rule of law...The state of Georgia is subject to the laws of the United States, and we will follow them." To date, no new legislation or constitutional amendment has been proposed to replace these provisions.
Immediately following the announcement of the Supreme Court, couples in Georgia began flocking to courthouses to make long-term relationships ‘official’ for state and federal benefits recognition. The first marriage in the State after the ruling was performed in Fulton county to Petrina Bloodworth and Emma Foulkes. Fulton county also held a mass ceremony for couples wishing to be married at 1:00pm on the day of the historic decision.
GEORGIA CASE LAW
There is not a large amount of past case law in this area, especially since the decision overturning state bans just recently came out last summer. However, there is one Georgia case currently up for appeal before the Eleventh Circuit which will be considered alongside a Florida case (Brenner v. Scott 999 F.Supp.2d 1278). The Georgia case is Inniss v. Aderhold (80 Supp.3d 1335) and was decided by the United States District for the Northern District of Georgia on January 8, 2015. This case consisted of a group of plaintiffs who were all in same sex relationships suing for rights that are already afforded to heterosexual couples. The Defendants filed a motion to dismiss which was the issue before the Court. The motion to dismiss was denied, but the issue of whether Georgia’s laws (the constitutional amendment and Georgia’s DOMA) were valid under rational basis review could not be resolved due to a factual dispute. The court did hold that same sex marriage is not a fundamental right, which Georgia’s laws do not constitute an unusual deviation from tradition, and that sexual orientation is not a suspect class. All of these holdings will now have to be reevaluated in light of the Hodges decision.
The Brenner v. Scott (999 F.Supp.2d 1278) case was decided in Florida on August 21, 2014 and held that the current Florida bans on same sex marriage and recognition of same sex marriage bans performed in other states violated the Due Process Clause and Equal Protection Clause of the United States Constitution. This case is also up for appeal before the Eleventh Circuit and will be considered alongside the Georgia Inniss v. Aderhold (80 Supp.3d 1335) case.
While the Hodges decision is monumental and will have a lasting impact on the ability of same sex couples to get married in the United States, it does not solidify all rights to LGBT couples. Georgia has no laws providing same sex couples with protection against workplace discrimination. This is colloquially known as the "Married on Sunday, fired on Monday" status. Thus, while it is true a same sex couple can now get married here and legally be recognized as married here, they will not be protected from being fired for coming out as in a same sex marriage to their employer. Georgia does not protect against discrimination based on sexual orientation or gender identity. This landscape does seem to be moving in the right direction, however. There is precedent that establishes employment discrimination protection for transgender and gender non-conforming persons (Glenn v. Brumby 663 F.3d 1312).
Not all Georgia representatives and senators are content to just accept this decision, either. Republican Senator Greg Kirk confirmed as of December 31, 2015 that he plans to propose new legislation that will fight the gay marriage ruling. His legislation is aimed "to protect businesses and public employees who object to gay marriage on religious grounds." This legislation is modeled after the First Amendment Defense Act which was introduced federally by Republicans Mike Lee of Utah and Paul Labrador of Idaho.
Georgia still has a long way to go in fight for LGBT rights and marriage equality. Steps are being taken in the right direction in Governor Deal and Attorney General Olens stating that Georgia will follow the ruling of the United States Supreme Court, and counties immediately beginning to grant marriage licenses to same sex couples after the ruling. There are individuals fighting these steps, however, by introducing new legislation that would essentially go against this ruling in denying same sex couples equal protection of the laws.
What will happen now in family law arena with divorce, child custody, property division, child support and alimony remains to be seen as new case law is needed to address these issues for same sex couples. Theoretically, there will be no difference between a heterosexual couple and a same sex couple and it will simply be the same laws across the family law spectrum. However, as divorces were denied to same sex couples in Georgia up until very recently, there is no precedent for how these issues will be dealt with. As they say, only time will tell.
At Coleman, Chambers, Rogers, & Williams, LLP, we are available to take on new precedent such as this. We are available to answer your questions, and offer services addresses LGBT options pre-marriage, and post marriage. Please contact our office at 770-534-3770 for a consultation.