In a matter of a few hours, we’ve gone from putting our house on the market and leaving our home state back to square one. When I woke up, this is not how I anticipated spending my day.
This morning, the Supreme Court effectively struck down the marriage bans in 11 states, five of which were involved in appellate decisions and the rest of which are now bound by the precedent of their respective circuit and must fall in line in short order:
- North Carolina
- South Carolina
- West Virginia
This brings the total states to 30 plus the District of Columbia. It means that almost all of the country, when measured by population, currently, or shortly, will live in states where marriage equality is a reality once you factor in other states, like Texas, where the decision is pending appeal that now stands little hope of succeeding.
The result of this unexpected windfall – and unexpected it was as I don’t think there was a single high-profile legal analyst who predicted the Supreme Court passing on all seven cases, upholding the overturns across the board – was me accelerating our exit plan from the State of Missouri, where my family and I have spent almost our entire lives. Even if it meant temporarily moving over the border into Illinois, Iowa, or Kansas, or maybe even renting a house in California for awhile (Laguna Beach is tempting), both Aaron and I were jumping ship. The tipping point had been reached and patience exhausted. Missouri was now completely surrounded by eight states that either had marriage equality in practice or had it on paper, pending a stay order until higher courts could hear the appeal of the losing side.
In the midst of real estate listings, calculations, and discussions about what we wanted to do – figuring out how to get the house on the market, where we wanted to live (Aaron thought maybe we should just go see Europe or Asia for six months or a year while we worked out the details, which sounds really, really interesting) – the Attorney General of the State of Missouri, Chris Koster, issued a surprise announcement nobody saw coming. I’m having a hard time believing it because it was so sudden, with no warning, but it’s right there on this website:
Three days ago, state Circuit Judge J. Dale Youngs ruled in Barrier v. Vasterling that Missouri must recognize out of state marriages, striking down part of the constitutional amendment passed in 2004. (The case didn’t deal with new marriages, only ones performed in other states; e.g., you get married in Iowa and return to Missouri.)
Aaron and I are 2 of the 10,800 Missouri citizens affected by this ruling. Everyone anticipated the Attorney General would appeal it. However, citing the Supreme Court’s actions this morning, and the need for business competition and attracting human capital (again, this would mean Missouri was surrounded on all sides by eight other states where marriage equality was, or would soon be, a reality), he has decided Missouri will accept the court’s decision. There will be no appeal. The ruling now stands. The ban on out of state recognition for lawfully married couples has fallen.
This changes everything. Had it not happened, I doubt we would have remained Missouri citizens by the end of the year. The opportunity cost had become too high, and often reared itself in constant reminders (e.g., setting up a new limited liability company, the membership agreement could only be drafted as membership units held jointly with right of survivorship rather than as marital property). I’m still not sure what we’re going to do but at the very least, it removes the time pressure to get out before a new fiscal tax period starts. It also means a trip to the notary is in order as we now need to reorganize the capital structure of our businesses as there can be no state gift tax on transfers between us.
I feel like this is an excellent justification for having celebration cake three times a year; our real anniversary, the date when we were legally married, and the date when our home state recognized our marriage. I’m not sure if that makes up for the tens of thousands of dollars in accounting and legal fees we’ve had to endure because of other people’s stupidity and bigotry but, let’s be honest, cake is cake.
All of this aside, what interests me about the Supreme Court’s decision on the seven cases today is that it only takes 4 out of 9 justices to grant a writ of certiorari. It’s no surprise the liberal justices didn’t vote to pick up the cases because Ginsberg indicated awhile ago she and her cohorts wanted to let the lower courts and state legislatures do all of the work so there was no Roe v. Wade moment that could be reversed or cause political polarization. That leaves the conservative wing, which couldn’t muster four votes among themselves. In all probability, that indicates Chief Justice John Roberts didn’t want the court to rule on the merits. At least not yet. Either he knows Kennedy was going to strike down the bans in all 50 states and wanted to kick the can down the road to lessen the political impact on the court’s long-term reputation, which matters a great deal to him, or the whispers are true and the ultimate victory may be 6-3 with Roberts writing his Loving v. Virginia or Brown v. Board of Education; certainly the most important legacy of his career and what would get him into the history books.
I’d have loved to have been a fly on the wall during conference. We won’t know what happened for many years, though, when the autobiographies are published.