Unanswered Questions: Same-Sex Marriage Rights in Alabama Post-Obergefell


There is little argument against the claim that the Supreme Court’s decision in Obergefell v. Hodges[1]was both long-awaited and greatly appreciated by the LGBTQ community and their advocates. However, as time progresses the feelings of ecstasy associated with this victory will increasingly become mixed with feelings of frustration and confusion. Such frustration and confusion will be the result of same-sex couples and LGBTQ advocates recognizing and beginning to confront many of the questions and problems left unanswered by the Obergefell decision.

Up until last week, a large portion of the questions left unanswered pertained to the tax obligations of now legally recognized same-sex spouses. In fact, for years, homosexual couples have experienced inequitable tax burdens, benefits, and filing complications in comparison to their heterosexual counterparts.[2] This inequitable treatment had even been the case in states which legally recognized same-sex marriage pre-Obergefell.[3] Thus, although some questions might remain, the IRS’ recent clarification and guidance regarding the effects of the Supreme Court’s decision in Obergefell on tax obligations[4] will be much appreciated by same-sex spouses as the upcoming tax season rolls around.

Beyond tax-related questions, increased controversy and litigation are likely to ensue over the upcoming months and years regarding several other effects of and questions stemming from the Obergefelldecision regarding same-sex marriage rights. Particularly, two areas that Alabama and its courts foreseeably may be required to deal with are (1) questions regarding the retroactive effects of Obergefell, and (2) the applicability of Obergefell to common-law marriage. This blog post is intended to briefly analyze the complications and questions left unanswered by the Supreme Court in Obergefellregarding how Alabama is to treat same-sex marriage rights in these two areas. Additionally, this blog post seeks to challenge same-sex couple and LGBTQ advocates to begin thinking about and preparing for the legal challenges and controversy that may ensue in the plight to obtain answers to these questions.

The Retroactive Effects of Obergefell

The full retroactive extent of the Supreme Court’s decision in Obergefell remains unclear.[5]  In the immediate aftermath of the Supreme Court’s decision it was clear that “same-sex couples validly married in states that allowed same-sex marriage prior to 26 June 2015 but who live[d] in states that did not previously recognize same-sex marriage [would] now enjoy the benefits of marriage in their state of domicile.”[6] What is less clear however is the question of whether “the advantages of marriage (e.g. the existence of marital or community property) exist from the time [a same-sex couple’s] marriage was confected or from 26 June 2015?”[7] The answer to this question will have major implications on the legal rights and benefits enjoyed by same-sex spouses. Until states determine and clarify a clear rule of law concerning such, the concept of ‘marriage equality’ will remain murky and the source of additional legal contentions.

Here in Alabama, courts have already begun to be confronted with this legal issue. For example, at the time of the Supreme Court’s Obergefell ruling, the case of Hard v. Bentley[8] had been pending within an Alabama federal court since February 2014.[9] The plaintiff in this case, Mr. Hard, was married prior to 2011 in the state of Massachusetts to Dan Fancher.[10] In 2011, while the couple was living in Alabama, Mr. Fancher was killed in a car accident involving a UPS truck.[11] As a result a wrongful death suit was brought against UPS.[12] In the subsequent case of Hard v. Bentley, the question was whether under Alabama law Mr. Hard was entitled to any of the wrongful death case’s proceeds or whether the late Mr. Fancher’s mother was the only legally recognized beneficiary of Mr. Fancher.[13]This question had yet to be answered at the time of the Supreme Court’s ruling in Obergefell.

Whereas prior to the Supreme Court’s decision the issue in Hard v. Bentley, was likely a question of whether Alabama was required to give full faith and credit to same-sex marriages legally recognized in other states. After the Supreme Court ruled in Obergefell however, the question in Hard v. Bentley became that of whether the Supreme Court’s new ruling ought to be applied to the unresolved Hard case.[14] After the Supreme Court’s decision, the defendants in Hard v. Bentley argued that the Supreme Court’s decision should not be applied retroactively in favor of the plaintiff.[15] The plaintiff however argued that “There is a general rule of retrospective effect for the constitutional decisions of the Supreme Court. Only exceptional circumstances warrant departing from the normal rule….the argument that the Obergefell decision should not be applied retroactively really amounts to desperate grasping at straws.”[16] The U.S. District Court of Middle Alabama agreed with Mr. Hard’s argument and consequently ruled in his favor. Thus, Alabama effectively determined that the Supreme Court’s decision was retroactive because “[t]he Supreme Court decision found it unconstitutional both for states to ban same-sex marriage and for states to refuse to recognize as valid a marriage from another state. It doesn’t matter when Alabama refused to recognize a Massachusetts marriage; it was unconstitutional to do so.”[17]

Despite this ruling Alabama’s stance on the retroactive effects of Obergefell is still somewhat unclear. It is arguable that Mr. Hard’s case was unique in several ways. Particularly the fact that his case was already pending within a court at the time of the Supreme Court’s decision and had not previously been negatively disposed of likely worked in his favor. Questions remain however regarding what would have happened however if his case had already been negatively decided in the months or years prior to Obergefell? Would Mr. Hard have the opportunity to have his case reheard or re-decided based on the Obergefell decision? Although seemingly just a hypothetical, there is not telling me how many LGBTQ persons are in precisely that or a similar predicament on today. What legal relief and rights do they now have? And what about the courts and other past defendants? Will courts re-deciding such cases cause too much difficulty? These are only some of the questions that same-sex couples and LGBTQ advocates will have to fight for answers to in the upcoming years.

Obergefell, Alabama, and Common-Law Marriage

Alabama is one of only a very small number of states which legally recognizes common-law marriage.[18]Accordingly, a unique question that same-sex couples and LGBTQ advocates in Alabama will need to seek clarity concerning is how Obergefell affects the vast-number of same-sex couples who during the years preceding Obergefell may have engaged in a celebratory ceremony or elsewise engaged in the requisite behavior to constitute a common-law marriage. Without now obtaining an official marriage certificate, will these couples be able to enjoy all the legal rights, recognitions, and benefits of common-law marriage? Additionally, will they have to comply with the same legal responsibilities? For example, typically, common-law spouses within Alabama that decide to dissolve their relationship are required to complete the same legal processes to divorce as they would have had they originally obtained a marriage certificate.[19] They also are governed by certain rules and laws pertaining to the splitting of property.[20] Thus what obligations and rights now affect same-sex common-law couples? And who is even considered a same-sex common-law spouse in Alabama? These are questions that LGBTQ advocates and courts can expect to try to answer in the months and years ahead.


After the celebratory high following Obergefell begins to wear off, lawyers, legislators, and legislators are encouraged to begin thinking now about the gaps and questions left unanswered by the Supreme Court’s decision regarding same-sex marriage. Although in theory marriage-equality is a concept now enjoyed by all, in actuality same-sex couples and LGBTQ advocates are aware that in actuality marriage rights are not and will not be ‘equal’ until the questions proposed in this blog post as well as others receive answers. The LGBTQ community and advocates should be vigilant in this present period to ensure that many of the remaining barriers to marriage equality are removed.

[1] 135 S. Ct. 2584 (2015).

[2] See Theodore P. Seto, The Unintended Tax Advantages of Gay Marriage, 65 Wash. & Lee L. Rev. 1529, 1530–92  (2008)

[3] Id.

[4] Paul Caron, Treasury Department Issues Proposed Regs Implementing Obergefell and Windsor On Same-Sex Marriage, Oct. 22, 2015, http://taxprof.typepad.com/taxprof_blog/2015/10/treasury-department-issues-proposed-regs-implementing-obergefell-and-windsor-on-same-sex-marriage.html

[5] Ronald J. Scalise, Jr., Comparative Succession Law: Volume II: intestate Succession 421 n. 128 (Kenneth G. C. Reid et al. eds.,  1st ed. 2015) available at https://books.google.com/books?id=tsZQCgAAQBAJ&pg=PA420&lpg=PA420&dq=obergefell+constitutional+decisions+are+usually+retroactive&source=bl&ots=7eFs5s1LIq&sig=TYfWyPaxZtnBv3Q7-pOy-F05LrA&hl=en&sa=X&ved=0CFgQ6AEwCWoVChMIwdHn4ezcyAIVhCUeCh3j8QTs#v=onepage&q=retroactive&f=false

[6] Id.

[7] Id.

[8] 2015 U.S. Dist. LEXIS 28894 (M.D. Ala. 2015).

[9] SPLC Client Receives Monetary Award After US Supreme Court Rules in Favor of Marriage Equality, August 3, 2015, https://www.splcenter.org/news/2015/08/04/splc-client-receives-monetary-award-after-us-supreme-court-rules-favor-marriage-equality [hereinafter: “SPLC Client Receives Monetary Award”]

[10] See Litigation in Alabama, Freedom to Marry, http://www.freedomtomarry.org/litigation/entry/alabama

[11] Complaint at 1, Hard v. Bentley, (No. 2:13-CV-922-WKW-SRW) available at http://www.freedomtomarry.org/page/-/files/pdfs/HardvBentleyComplaint.pdf

[12] See Lohr v. Zehner, 2014 U.S. DIst. Lexis 75216 (M.D. Ala. 2014).

[13] See SPLC Challenges Alabama’s Unconstitutional Marriage Protection Act and Sanctity of Marriage Amendment, The Southern Poverty Law Center, Feb. 12, 2014, https://www.splcenter.org/news/2014/02/13/splc-challenges-alabama%E2%80%99s-unconstitutional-marriage-protection-act-and-sanctity-marriage  

[14] See SPLC Client Receives Monetary Award (“The [defendants] argued that the Supreme Court’s marriage ruling should not be applied retroactively to the case.”).

[15] Id.

[16] Zack Ford, Same-Sex Couples Are Securing Retroactive Recognition of their Marriage, Think Progress, Jul. 30, 2014, http://thinkprogress.org/lgbt/2015/07/30/3686006/retroactive-marriage-equality/

[17] Id.

[18] See Jennifer McDonald, Common Law Marriage in Alabama, Examiner.com, July 1, 2013, http://www.examiner.com/article/common-law-marriage-alabama

[19] Legal Services Alabama, Common Law Marriage in Alabama, Alabama Legal Help, http://www.alabamalegalhelp.org/resource/common-law-marriage-in-alabama (stating that in Alabama “[C]ommon law marriage…can only be ended by a divorce or by the death of [a spouse].”)

[20] Jennifer McDonald (“couples wishing to dissolve a common-law marriage are subject to…equitable division of property and debt.”)