The Work Ahead

Attorney Tamara Packard highlights the legal clean-up process that remains post-marriage equality, and the other important work that remains to be done for wider equality.

YES. Yes! Y-e-s. Yes, your marriage to your same-sex spouse must now be recognized by all 50 states, the Federal government, and, yes, everyone else. Yes, if you are not yet married, you can get married to your same-sex partner anywhere in this country (yes, even in Alabama). Yes, that means you and your spouse and the children of your marriage will be afforded
all 1,100+ federal law and hundreds of state law rights, responsibilities and protections. Yes, this is final and for
real. There is no going back. It will not be taken away.

The United States Supreme Court ruled on June 26, 2015 in the case titled Obergefell v. Hodges that the United States Constitution guarantees same-sex couples equal access to civil marriage. I hope you have been celebrating heartily.

What next? Regarding marriage itself, we have some backlash to deal with. There are a handful of local governmental officials in places like Alabama, Kentucky and Tennessee who are refusing to issue marriage licenses to same-sex couples, or declining to officiate our marriages. Those officials cannot stop us from marrying, but an encounter with one of these folks might cause a slight detour.

Regarding full access to the rights, responsibilities and protections of marriage, we have some clean-up to do, too. For instance, here in Wisconsin, as of the writing of this column, the State is still not issuing birth certificates to the children of married same-sex couples with both spouses listed as the parent—not without an expensive lawsuit, anyway. So now there are several lawsuits pending in state and federal court aimed at fixing that: both for kids yet to be born, and for kids already born to married same-sex parents, regardless of when the marriage occurred. Birth certificates document a child’s legal relationship to his or her parents, and leaving one parent off that document places that child at risk of significant harm. All families are entitled to this important legal protection, and they shouldn’t each have to hire a lawyer and sue [Gov. Scott] Walker appointees to get it. Stay tuned, especially for developments in the Torres v. Rhoades case pending before Judge Crabb in Federal court in Madison.

Then there are the fights that will be caused by people who object to our marriages and therefore might refuse to honor them. Small businesses that refuse to deliver pizzas to our wedding receptions are not going to be the big problem. Instead, in these days of government delegation of key social support functions to private—especially religious—entities, the real problem will come when a religious charity operating a homeless shelter, soup kitchen or other safety net function refuses to equally serve a family headed by a same-sex married couple. Or when a religious charity paid by the government to provide adoption services refuses to approve a gay married couple for an adoption, simply because they are gay. In many states, it is still perfectly legal to refuse service to people in a restaurant or other business offering goods or services to the general public due to their sexual orientation. Even in Wisconsin, where this is generally illegal, there are some exemptions for religious organizations. The next big battle surrounding sexual orientation will pit the constitutional rights of LGBT people to equal treatment under the law against a claimed constitutional right to discriminate against us based on religious belief.

And of course, while marriage has been, quite literally, the “golden ring” that we have been reaching for in recent years, it is not the be-all, end-all. There is more work to do for the LGBT community: most of Wisconsin still allows employment, housing and public accommodation discrimination against trans* people. Suicide, alcohol and drug abuse, and other harmful behaviors including HIV transmission are alarmingly high among LGBT youth. This must change. Moreover, we fought long and hard for marriage, and many non-LGBT allies supported and helped us. Now that we are more secure in our families and are beginning to feel the effect of full citizenship, we cannot just put our skills and contacts and knowledge on the shelf and ignore our allies. We need to lend our energy in the wider social justice struggles: racial justice, income inequality, access to quality education and an end to human trafficking and abuse wherever it exists.

Finally, marriage equality means the equal right to marry—or not. Marriage is about love and commitment. It is also a complex and wide-ranging set of legal rights and responsibilities. Before saying “I do,” be sure that you and your intended are not only emotionally ready for marriage, but also that you both understand what you are getting into, legally. The major LGBT rights organizations have put together a set of fact sheets to help you: go to marriageequaityfacts.org to read them.

Thank you for your contributions that have brought us to this day!


Tamara Packard is a Madison civil rights lawyer, activist, and partner in the law firm of Cullen Weston Pines & Bach LLP, cwpb.com.