It has happened in four states so far, and may well happen in others – a kind of marital limbo where licenses have been granted and vows exchanged, but the marriages themselves have not been officially recognized.
The most recent instance occurred June 25 in Indiana, where hundreds of same-sex couples married during a brief two-day window created after a federal district court struck down the Hoosier State’s gay marriage ban, and before an appeals court put that ruling on hold. The Indiana newlyweds now join thousands of other similarly situated same-sex couples from Michigan, Utah and Wisconsin.
Supporters argue that marriages conducted while same-sex marriage was legal – even if only for a few days – are valid and should be recognized. But so far, most state officials have refused to recognize the marriages, citing ongoing court proceedings. In Indiana, for instance, the attorney general’s office stated that the status of same-sex marriage licenses issued during the two-day window is currently “undetermined.”
This limbo could last a year or even longer. Gay marriage supporters are challenging bans in all of the 31 states where same-sex marriage currently is not legal and it’s expected that one or more of these cases will make their way to the U.S. Supreme Court. But the earliest that could happen is next spring. Until then, court rulings in Indiana and elsewhere will likely remain on hold.
In the wake of the Supreme Court’s 2013 decision striking down part of the Defense of Marriage Act, lawsuits have been filed against gay marriage bans in all states where it is still prohibited. So far, in the first half of 2014, courts have struck down 11 state laws banning gay marriage.
If the Supreme Court rules that gay marriage is a constitutional right, then the marriages currently in limbo will automatically be valid and enforceable. If, however, the court rules that same-sex marriage is not protected by the Constitution, and upholds state laws and constitutional amendments banning gay marriage, these limbo marriages could very well be ruled invalid.
The justices could take a different road and uphold state bans on same-sex marriage and, at the same time, direct the states with limbo marriages to recognize them. That’s what happened in California.
In 2008, the California’s highest court ruled that the right of gays and lesbians to wed was protected by the state’s constitution. Six months later, in November 2008, California voters approved Proposition 8, which amended the state’s constitution to ban same-sex marriage and effectively overturned the state court’s decision.
Early in 2009, the state Supreme Court upheld Proposition 8, but ruled that the roughly 18,000 same-sex marriages that had occurred between their earlier ruling legalizing gay marriage and enactment of Proposition 8 were still valid. The court determined that marriages should stand, in part, because those 18,000 gay and lesbian couples had married and made other big life decisions in reliance upon the law as it was at the time. The judges ruled that to retroactively invalidate their marriages in the wake of Proposition 8 would be disruptive and unfair.
It’s possible that the U.S. Supreme Court could follow California’s lead and allow state gay marriage bans to remain in place, while at the same time granting waivers to those couples who married during brief periods when it was legal to do so.