Thursday, April 29, 2010

Via 365gay: Culhane: The paradox of legal gay unions

, Professor of Law, Widener University

In late 2000, David and I traveled to Vermont to enter into a civil union. At the time, this “marriage in all but name” alternative was the only legal option available for same-sex couples who wanted state recognition of their unions.

As we crossed the state line from Vermont back into New York at the end of an unforgettable weekend, David looked at the wedding rings newly at home on our hands and said: “Well, they didn’t disappear.”

Over the years, I’ve thought about that statement from time to time. On the level that matters most, the comment is dead-on: Our marriage crosses and transgresses many lines, both spatial and transcendent, and in that sense isn’t dependent on any state’s laws.

But we could have made such a commitment without the state’s (secular) blessing, so we obviously cared about the legal recognition.

And when it comes to the legal effect of our union, we and other same-sex couples find ourselves living on Bizarro Earth, where logic is shelved and results are backward. Let me explain how David’s statement is both right and wrong from the legal perspective.

Gay and lesbian couples married (or civilly united) in a given state may find that their unions, paradoxically, have little or no legal weight but may also be impossible to exit.

The first part of this problem is well-known. A gay couple married in, say, Massachusetts does have the state-conferred benefits of marriage, but only as long as they remain in that state. If they move to a state that doesn’t recognize their union – in other words, most states – their marriage doesn’t exist. So they can’t file state joint income tax returns, gain any exemption from estate taxes that might be available to opposite-sex couples, visit each other in the hospital, and on and on.

Even if they don’t move, the rings they wear might figuratively vanish on an out-of-state vacation – in addition to the hospital visit problem, a surviving spouse might not be able to sue a negligent motorist for the wrongful death of her partner.

And even if the couple remains in the state until they day they die, the evil Defense of Marriage Act – the repeal of which appears to have disappeared from sight – means that their marriage is a nullity for federal purposes.

But recent developments in Texas and Pennsylvania remind us that same-sex marriages are even harder to get out of than they are sometimes legally useless to be in.

As a lawyer, one of the unpleasant thoughts that has intruded on me is that my civil union wouldn’t enable a “civil divorce” (now there’s an oxymoron) in our home state of Pennsylvania, even if the day ever came that we wanted to take that sad step. Vermont, like virtually all states, has this strange dichotomy: Out-of-staters can travel there to marry, but can only dissolve their unions by becoming residents for a period of time (usually six months or one year).

That’s not a problem in most cases, because a divorce entered into in one state will be recognized in another. A straight couple married in Vermont can divorce in any state, and Vermont will give that divorce decree full faith and credit.

Not so for our unions. A few years ago, a friend who’d also gotten civilly united in Vermont called me, almost in tears, because her partner had met someone else and now her union needed to be dissolved.

But the pain of her personal loss was being compounded by the fact that she didn’t see a way out of her situation. Unable to move to Vermont, she found herself trapped in a nightmare that not even The Marriage Ref could solve.

Luckily for her, she was wrong. The two women live in New Jersey, and because of that state’s more progressive legislation and courts, a judge was willing to dissolve the union and allow the parties to get on with their lives. That wouldn’t have happened in most states, including the one just across the Delaware River.

Down in Texas, the trial judge’s decision to allow a gay couple to divorce was challenged by the Attorney General, and the appellate court heard arguments on the messy matter last week. The easiest thing would be for the court to hold that granting the divorce would simply be recognizing that the marriage was valid in the state where it was celebrated (Massachusetts, in this case). The court might take that approach, just to avoid getting swamped by the constitutional wave that would otherwise crash down on it.

What if the divorce isn’t recognized? There’s a procedure called a “voidance,” but the remedies and division of property aren’t as reliable in those cases. So the two men won’t be able to close the circuit cleanly, and may find themselves in a confusing and stressful tangle for years to come.

When will this change?


John Culhane is Professor of Law and Director of the Health Law Institute at Widener University School of Law in Wilmington, Delaware. He blogs about the role of law in everyday life, and about a bunch of other things (LGBT rights, public health, biology, sports, pop culture, philosophy and lots of personal stuff) at A fuller bio is here. This week, he is blogging the week-long Equality Forum from Philadelphia. Each day features a new post on the panels from the night before.

Soldiers in Afghanistan interpret Lady Gaga in between missions. DADT must be working, clearly this was done without any gay help. Cute enough, though.

(Tipped by JMG reader Ted)

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reposted from JMG