Here & Now

Janine Geske Outlines Implications Of SCOTUS Decisions

Frederica Freyberg:

Wisconsin has a constitutional amendment prohibiting same-sex marriage. It also has a domestic partner registry. How does this week’s US Supreme Court ruling granting benefits to same-sex couples and its decision that California’s gay marriage ban is unconstitutional affect either one of those provisions in Wisconsin? We turn to Marquette University law school professor and former Wisconsin Supreme Court justice, Janine Geske, who joins us from the campus of Marquette University in Milwaukee. And thank you very much for doing so.

Janine Geske:

You’re welcome.

Frederica Freyberg:

Well, first off, on our constitution, how does the high court ruling affect that?

Janine Geske:

There’s no direct impact of the decisions that were reached today– this week, on our constitutional amendment. The court has not commented on states who prohibit same-sex marriages as we do. And so directly there is no impact. Indirectly, there may be, down the road.

Frederica Freyberg:

And secondly, on our domestic partner registry, which allows limited benefits, like inheritance, medical leave and hospital visitation. Does the supreme court ruling affect that?

Janine Geske:

It does not. The Supreme Court ruling on the Doma case, that particular case addresses the issue of if you have a valid marriage from some state, that you will be able to get federal benefits. But without the marriage, there’s nothing in either decision that will impact Wisconsin and our laws and our constitutional provision.

Frederica Freyberg:

And so if a same-sex couple that lived in Wisconsin, was legally married in Minnesota or Vermont or elsewhere, what about even Canada? This ruling would then give them additional benefits?

Janine Geske:

Well, this is where it gets fairly complicated, because the court did not have to directly address that issue. The individuals involved in the Doma case involved a couple that had been together for about 40 years, they’d been married in Canada, they were living in New York and New York recognized their same-sex marriage. One of the members of the couple died, and the question was whether the remaining woman would have to pay the kind of estate taxes that a non-married individual would pay versus a spouse. And so that was the issue. The problem with the case is that it doesn’t answer the question of if you have a valid marriage in some other state but are currently living in a state that does not recognize the marriage, whether or not you can get federal benefits. The case seems to indicate that you’re entitled to federal benefits, but it’s going to depend a little bit on the language of the particular agency. And my understanding is the agencies, whether it’s Social Security or veterans or other kinds of rights, they vary on whether they look at the place of residency or the place of celebration of the wedding.

Frederica Freyberg:

And so what are same-sex, legally-married couples in a state like Wisconsin then to do? Just try to apply for those kinds of benefits and see what happens?

Janine Geske:

Well, that may be one option. I know that in Washington the administration is looking to see whether it can do something administratively. For example, as I understand it, the IRS takes place of residency versus place of marriage. But the question is whether the president, through his executive powers, can enact regulations that would make it place of celebration of the marriage so that everybody who was married in a valid ceremony would be able to recover those benefits, regardless of where they’re living in the country. But until that’s clarified, I suspect it may in fact cause some further litigation, which is too bad. But I think that that issue is not clear at this point, and it wasn’t made clear in the opinion.

Frederica Freyberg:

Speaking of further litigation and very briefly, do you think that this week’s ruling from the high court opens the door to kind of legalizing same-sex unions in all 50 states?

Janine Geske:

Well, certainly the language of Justice Kennedy in the Doma case is going to encourage those who are advocates for same-sex marriage. He had very strong language about the importance of recognizing same-sex marriage. On the other hand, he also talked about that it’s a state's issue to determine the validity of marriage. So he did give a little contradictory sort of hints of where he might be. I think that eventually some parties are going to try to get the court to take the case, to say is there a constitution at right of same-sex couples to marry in the United States. And they certainly could be encouraged by the decision that happened this week, but there are no guarantees. And I think the court is trying to take it slowly rather than go quickly to cause too much division in the country.

Frederica Freyberg:

All right. Janine Geske, thank you very much for your insight.

Janine Geske:

You’re welcome.