Late last month, the Supreme Court of the United States (SCOTUS) ruled that the Constitution guarantees the right for same-sex couples to marry in all 50 states. As the state municipalities gear up for the changes underway, many Americans are still left wondering–now what?
According to Jessica Kastner, Esq., a managing attorney at Dorf & Nelson LLP, a leading law firm based in New York and Los Angeles, there are many legal implications of SCOTUS’ decision. This will be especially true in family law practices, where the historic ruling will inevitably shape a host of issues including same-sex divorce; child support and visitation/custody; foster care; and national and international adoption cases.
In her first years as an attorney, Kastner, who is openly gay, worked on a pro-bono child support case in which she helped secure child support payments for a gay woman who had separated from her partner.
“The couple selected a donor together, they picked a name together, shared the medical costs and eventually, my client, the biological mother, conceived a child via artificial insemination. The non-biological mother was at the delivery, cut the umbilical cord and was very involved,” Kastner explained. “But, less than a year later, the relationship ended.”
At the time that Kastner was working on the case, same-sex marriage was only legal in one state, Massachusetts, and non-biological parents in same-sex relationships had no legal obligation to fork over child support. However, in 2008, the judge ruled in favor of her client on equitable grounds, setting a precedent for years to come.
“It changed the law in New York,” she said. “Like any other mom, she believed that her partner was going to be there to help raise the child they brought into the world together. However, when her partner abandoned her, my client did not have a lot of legal remedies. She was struggling financially and traditional child support laws could not help her.”
As a legal authority, Kastner noted that because SCOTUS’ historic ruling will play a heavy role in deciding how same-sex family court cases are handled, the states that had not legally recognized same-sex marriage will likely have to amend their laws or, at the very least, reevaluate existing ones.
Kastner said that the SCOTUS ruling will likely lead to an expansion of family law practices as new marriages will inherently lead to new issues, including divorce, child custody, support and visitation.
“The states are going to have a lot of work to do. Family law, as it is written in most states, applies only to ‘fathers and mothers’ or ‘husbands and wives’. With regard to issues of child support and child custody, in particular, as same-sex couples marry and start families, state legislatures are going to have to revise their laws to address these issues and provide legal remedies for these families.”
[Jessica Kastner, an openly gay attorney, speaks about the legal ramifications of last month’s historic Supreme Court ruling, which legalized same-sex marriage in all 50 states.]
Kastner also opines on how the increase of same-sex marriage might impact divorce rates.
“Only time will tell what the divorce rates will be in same-sex marriages as opposed to heterosexual marriages,” she said. “One can only hope that when you have to fight for something, you will value it more.”
According to Kastner, the SCOTUS ruling may also have some impact on the adoption process for same-sex couples, as the decision legalizes gay marriage as a matter of Constitutional law.
“In international adoption, many countries require couples to be married in order to approve an adoption. In many of these societies, marriage serves to legitimize the permanency of the family,” she said. “Now that the U.S. is recognizing same-sex marriage, it may help to open more doors for gay couples to adopt internationally.”
Kastner also surmises that the decision may have similar effects on adoption by gay families within the U.S. as well.
“Right now, it is difficult for gay couples to adopt through private domestic adoption here in the U.S.,” she said. “This is largely because in private domestic adoptions, the biological parents select the adoptive couples, and many of them will choose ‘traditional’ heterosexual couples. By legitimizing gay marriage, the SCOTUS decision will likely help shape society’s values in years to come and will hopefully send the message that gay families are the same as any other family.”
Kastner analogized the recent SCOTUS ruling to Loving v. Virginia, a similar landmark decision decided nearly 50 years ago.
“In Loving v. Virginia, decided in 1967, the Supreme Court invalidated the Racial Integrity Act of 1924, and all laws which prohibited interracial marriage. That decision really set the stage for Obergefell v. Hodges. Based on subjective and misinformed values, states were attempting to abridge the rights of citizens to choose their marriage partner,” she said. “For me, this present case is very similar to that.”
As for what the ruling means to her personally, Kastner said she is just glad that the Supreme Court gave same-sex couples legitimacy and is hopeful that other nations continue to follow suit.