What does it mean for a couple when their legal relationship status is in limbo?
It’s a question people are facing all over the US, after thousands of same-sex couples over multiple states have taken advantage of brief windows, ranging from less than a day to weeks, in which their states allowed them to legally marry—and then saw those windows slammed shut because some officials wanted their unions invalidated.
When superior courts have weighed in, judges have ordered states such as Utah to legally recognize the same-sex couples who married within their borders.
Additionally, Attorney General Eric Holder has extended eligibility for federal benefits to such couples before, meaning that even couples stuck in legal limbo at the state level are able to file federal taxes jointly and sponsor partners for immigration, among other benefits.
However, for couples in states that have yet to receive such a recognition order, such as in Wisconsin, their eligibility for state benefits is on hold along with their relationship status. As only one of thirteen states with marriage equality cases pending, in seven different appeals courts, a ruling on Wisconsin specifically is likely to take months.
This leaves couples like Amber Sowards and Mel Freitag, who married in Wisconsin as soon as it was possible on June 6, with a marriage license effectively not worth the paper it’s written on. Sowards is seven months pregnant with a child that legally has no relationship to Freitag, and until they married, they had been investigating a complicated, expensive second-parent adoption process. They had hoped their marriage would provide a much simpler solution—when a wife gives birth, regardless of the method of conception, her spouse is automatically the child’s legal parent (at least within heterosexual couples).
Because births are recorded by the state, if baby Sowards-Freitag is born before the legal situation sees a change, access to federal benefits won’t help them. They told the Wisconsin State Journal that after speaking with a lawyer, they discovered a solution that was considerably cheaper than second-parent adoption, if less than ideal—Freitag will temporarily become their child’s guardian while the appeals process runs its course.
Still, the disadvantages of such an arrangement are many. Guardianship provides some security if the biological parent dies, but it’s not the same as being a legal parent. If the non-biological parent dies, as a legal stranger to their family, they will not qualify for benefits such as Social Security.
There are even fewer protections for a non-biological parent should the romantic relationship come to an end. Divorce court looks at issues such as what a stay-at-home spouse did in the relationship rather than solely considering numbers on paychecks, providing a more equitable outcome than civil court is likely to.
Additionally, same-sex couples living in states that don’t recognize their marriages are still denied some federal spousal benefits—the Veterans Administration and the Social Security Administration follow state law.
Attorney Tamara Packard, who has worked on court cases regarding same-sex couples’ rights, told the Journal that some of the rights of marriage and even civil unions, such as hospital visitation and the right to access a late partner’s autopsy report, are not available any other way.
She explained, “Some are obscure, but they really impact people in times of crisis. In the rough moments, they make things a little less awful, but they don’t rise anywhere to what you get in marriage.”