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Sunday, July 17, 2011

Jumping the Broom: How "Married" are Married Gay Couples?


When gay friends flew out to California to get married (in the brief period where it was legal in that state), but then returned to their home in Florida where gay marriage is forbidden by state statute, they asked me were they really "married" in the eyes of the law? I'm a law professor, but my area of expertise is commercial matters and not family law, but I've done some reading and research on this issue, and the answer is, well, complicated.

Article IV, Section 1 of the United States Constitution:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.


Legally Married?
You'd think this language would require legal marriages in one state to be recognized in another, but that hasn't been its history. Clearly a legal judgment (in which a court rules that one litigant prevails at the end of a lawsuit) must be enforced in a different state, but a marriage license is not a judgment or judicial proceeding; at best it qualifies as a "record," an undefined constitutional term. When it comes to marriage the court cases have almost always ruled that one state need not recognize a marriage entered into in another state if it would violate the "public policy" of the new state. These cases primarily arose from two types of controversial marriages: polygamous unions and those between interracial couples. The courts, including the United States Supreme Court, have not used the Full Faith and Credit Clause to invalidate statutes invalidating such marriages, though the Court did use the 14th Amendment's Equal Protection Clause to strike down a Virginia law prohibiting interracial marriage in 1967's Loving v. Virginia. Whether the Supreme Court would use the 14th Amendment to similarly protect gay marriages is unknown (see speculations below).


(Click to enlarge)
As of June 2011, 12 states prohibit same-sex marriage via statute and 29 via the state's constitution (including, alas, Ohio, where I live), thus indicating strong public policy would keep the Full Faith and Credit Clause from requiring recognition of gay marriages legally performed elsewhere (it's an interesting question whether a gay divorce—a legal "judgment"—recognized in a gay marriage state would have to also be recognized in other states).  The chart at the left is accurate, except that recently New York (the largest state to do so) has legalized gay marriage by statute, and Iowa's Supreme Court has held that the state constitution requires recognition of gay marriages, invalidating the Iowa statute to the contrary.

It would seem then that a gay couple married in jurisdictions like Massachusetts, which recognizes gay marriages as equal to straight ones, would only be really married in that state and in states recognizing gay marriages legally performed elsewhere, but that's not quite right either. Why not? Because federal law prohibits gay marriages from being given legal recognition at the federal level or by any state not wanting to grant such legal recognition.

In 1996 Congress passed the Defense of Marriage Act in 1996, 28 U.S.C. § 1738C (DOMA), and President Clinton signed it into law. It provides, in pertinent part:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

So a gay couple married in Massachusetts is not legally wed for purposes of federal law: taxes, benefits, ability to visit spouses in hospitals, and hundreds of other legal rights. That's big. Congress has, in theory repealed the military's "Don't Ask, Don't Tell" rule, and shortly gay military personnel will not be booted from the service simply because their sexual orientation. But even if they legally wed their gay spouse, that spouse will not receive military rights routinely granted to straight military spouses: life insurance, dental and health benefits, ability to shop on base facilities (which have cheaper prices), housing assistance, etc.

What about gays who wed in other countries where gay marriages are legal? Another thorny legal area that one. In theory, international treaties recognize marriages legally contracted by signatories to such treaties, which includes the United States, but again exceptions have been made, and the issues need resolution at the highest levels.

In the meantime we have a legal mess, with perfectly good people having "quasi-marriages" only, and in limbo as to their rights and those of their children (the littlest victims of all this homophobia). Even contractual agreements between gay couples (or straight couples living together without being married) are suspect and often subject to valid legal challenges (undue influence, for example).


The United States Supreme Court will someday settle it all, but there's a problem that keeps many a gay litigant from wanting immediate action in that venue. It has to do with the makeup of the current Court. There are four liberals (the three women and Stephen Breyer) and four conservatives (Chief Justice Roberts, plus Justices Scalia, Thomas, and Alito). In the middle, and therefore the most powerful judge in the world, is Anthony Kennedy (a Reagan appointee), the crucial swing vote. When close cases are argued to the Court, eight other Justices are ignored while the lawyers pitch everything to Anthony Kennedy. I've seen the man speak on more than one occasion. He's an intelligent, gentle, humorous, thoughtful, and impressive person. Kennedy's a Catholic (as are six of the Court's current members, the other three are Jewish), but he's been fairly good on gay issues. Recently he's sided with the conservatives on most matters, however, including the Walmart case throwing out class actions by women claiming discrimination, and another 2011 decision baring consumer class actions in all future cases (tragedies both). The slightest change in the personnel of the Court could alter all of this dramatically, but currently no one is making bets on how the issue of gay marriage will strike Anthony Kennedy in whatever case the Court decides to consider.
 

Anthony Kennedy

Gay couples who get married deserve to celebrate their unions, but what they've legally achieved is only slightly better than jumping over the broom, the symbolic tradition of slaves wanting to marry. These happy couples are "married" in their own eyes, and in the opinion of those friends and family who love them, as well those Americans who mostly don't give a damn about the issue, but to much of the country gay "married" spouses are pretenders, to be condemned or, at best, pitied.

I've been a gay activist for over three decades, and I've seen dramatic changes occur in a breathtakingly short period of time, so I'm sure there's a happy ending to this problem. Until then I urge the current activists and their allies to keep working for change until "gay marriage" loses its adjective and keeps only the definitive noun.

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Related Posts:
"The Aging Gay Rights Activist," March 24, 2010
"Frightening the Horses," April 4, 2010
“Homosexuality: The Iceberg Theory,” April 25, 2010
“How I Lost a Gay Marriage Debate,” April 29, 2010
“Straight Talk,” May 10, 2010
“Marijuana and Me,” July 11, 2010
“How To Tell if You’re Gay,” August 31, 2010
“The Thunderbolt,”September 3, 2010
“How To Change Gay People Into Straight People,” September 20, 2010
"How Many Homosexuals Are There in the World?" November 8, 2010
"Choose To Be Gay, Choose To Be Straight," January 25, 2011
"The Homosexual Agenda To Conquer the World," February 8, 2011
"Seducing Straight Men," March 3, 2011
"Coming Out: How To Tell People You're Gay," March 27, 2011
"The Legacy of Homophobia," August 2, 2011
"Going Undercover at an Ex-Gay Meeting," September 19, 2011
"The Presumption of Heterosexuality and the Invisible Homosexual," October 2, 2011
"Gay Bashers, Homophobes, and Me," January 27, 2012
"On Being a Gay Sports Fan," March 9, 2012
"Sexual Labels: Straight, Gay, Bi," April 15, 2012
"The History of Gay Rights in Columbus, Ohio," June 4, 2012
“I Support the Right of the Boy Scouts To Ban Gays,” July 24, 2012
Straight People: Thanks From the LGBT Community,” November 20, 2012
“Gay Marriage, DOMA, Proposition 8 and the Mysterious Supreme Court,” January 15, 2013
"Gay Marriage, the Supreme Court, and the Future," June 26, 2013
“A Gay Hoosier Lawyer Looks at Indiana’s RFRA: The Religious Bigot Protection Act,” March 30, 2015; http://douglaswhaley.blogspot.com/2015/03/a-gay-hoosier-lawyer-looks-at-indianas.html
“Oral Arguments on Gay Marriage in the Supreme Court: What Was and What Wasn’t Said,” April 28, 2015; http://douglaswhaley.blogspot.com/2015/04/oral-arguments-on-gay-marriage-in.html 
“A Guide to the Best of My Blog,” April 29, 2013; http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html

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