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“‘Till Death (or a Change in the Law) Do Us Part”

Gay couples, consider this before marrying: You might not be able to get out of it, if your marriage doesn’t result in the eternal bliss (or at least the workable series of compromises) you were hoping for.

Tara Ranzy and Larissa Chism recently made news when an Indiana court quite properly refused to grant them a divorce. The result was proper, from a legal, procedural point of view because a court doesn’t have jurisdiction to grant a divorce to a couple whose marriage, under state law, doesn’t exist. Indiana is one of many states with legislation restricting marriage to the union of a man and a woman, and barring recognition of same-sex marriages performed anywhere else.

An appeal is likely, but is unlikely to be successful. I don’t see how a state court could get around the jurisdictional problem without declaring the state law unconstitutional. This result is possible; Indiana has a statute, not a constitutional amendment against same-sex marriages, so the constitution would trump. But I don’t think this is likely; if the Indiana Supreme Court were progressive (like the Iowa Supreme Court, for example), advocacy group litigation challenging the law would likely have been brought by now.

The couple was married in Canada, so why not divorce there? That wouldn’t be a bad idea, except that — unlike marriage — divorce requires that one member of the couple be resident there for at least a year. Now what?

There are some options, but they’re not great. Courts in most states will divide assets between couples — gay or straight — in long-term relationships, even without the legal sanction of marriage. There are attorneys who specialize in just such cases. Results are unpredictable, and generally less equitable than what’s available under divorce law.

Or the couple could just “pretend” they’re no longer married. But they are married, absent a recognized divorce, at least in those states that recognize their union. So what happens when either woman finds someone else to marry? Is she a bigamist if she does marry? In some states? Were I advising her, I’d say: No future marriage until you find a court willing to divorce you — property division isn’t enough.

I’m not even getting into child custody or visitation issues, which will also vary as now-disintegrated couples cross state lines. (This couple had no children, but the problem is real.)

It does seem as though we’re doomed to this situation for some time to come. Even if Congress repeals DOMA, that action won’t force any state to recognize a same-sex marriage from another. The patchwork will continue until one of two things happen: (1) all states recognize marriage equality (this will take forever); or (2) the U.S. Supreme Court declares that excluding same-sex couples from marriage violates the Constitution (this won’t happen any time soon, probably, but will likely come before all of the states will fall into line).

This is what federalism has wrought. Jonathan Rauch, among others, likes the “50 state laboratory” idea (here’s a link to his excellent book arguing that point), but he’s not a lawyer considering the legal complications. And I’d guess he’s not been unlucky enough to find himself stuck in a situation where only death can do him (and his spouse) part.

Family Law has always been for the states to decide, but  that’s precisely why “full faith and credit” is so important. To simplify, that doctrine requires that states respect the judgments and acts of other states. It’s long been used to get around unfriendly state laws: Full faith and credit explains why, for example, people went to Nevada for no-fault divorces before other states allowed such dissolutions. Laws, like state mini-DOMAs, that override full faith and credit (under a public policy exception to the general requirement), lead to the kind of messes that have bogged down Ranzy and Chism.

Just one more reason why gay couples might choose not to marry — but a reason that won’t be captured by surveys. So when commentators say that gays won’t marry even if permitted to, keep in mind that, unlike opposite-sex marriages, our unions are fluidly defined, unsettled, and legally chancy. That’s got to scare many thoughtful people away. Not me, though.

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