Same-Sex Couples Lose Rights When They Cross State Lines
Stay up to date with the latest headlines via email.
November's passage of California's Proposition 8, which amends the state's constitution to outlaw same-sex marriage, is the latest flashpoint in the culture war over gay civil rights, the subject of fierce commentary and multiple lawsuits.
Indiana University School of Law professor Jennifer Drobac is concerned about an issue that's getting scant attention in the debate: How do states treat gay couples that are already married? And what happens when they move to a state where their marriage is outlawed? Miller-McCune.com spoke with Drobac about these legal issues, and her ideas for a domestic partnership system that might address them.
Miller-McCune.com: You've said lawsuits over Prop 8's constitutionality aren't vital to the legal rights of same-sex couples. Which issues are worthy of attention?
Jennifer Drobac: The real question is: What does Prop 8 do to these marriages? They are valid in California and will remain so, unless there is a pronouncement or significant ruling otherwise. The problem, though, is going to be the same problem faced by same-sex couples who were married in Massachusetts, and now Connecticut. What happens when these people cross state borders?
MM: So what does happen?
JD: Most states have either a DOMA (similar to the federal Defense of Marriage Act that defines marriage as between a man and a woman), a DOMA-like statute or a state constitutional DOMA amendment. What happens in those states is that the traditional rule of comity doesn't apply. Comity is a doctrine of courtesy: If you got married in state A, even though state B wouldn't have allowed you to get married because, say, you're first cousins, state B will recognize the marriage as valid.
Whether or not courts would require states to recognize their sister states' validly performed same-sex marriages, the answer has been: yes and no. But the issue has never gone to the U.S. Supreme Court. There are indications that the Supreme Court wouldn't require states to recognize same-sex marriages. And yet there are precedents (suggesting that states would be forced to respect such unions).
Back in the 19th century, Indiana became this liberal divorce mill. It was very difficult to get divorces in New York, so people would travel by train to Indiana or Nevada, get a divorce, and go back home. States like New York challenged sister states that were undoing marriages.
The Supreme Court ultimately said: No, these were validly performed divorces and they have to be respected in New York. Will that happen with same-sex marriage? Nobody knows for sure. It hasn't gotten that far yet, but it will as people start traveling from California and Massachusetts and Connecticut, having their marriage evaporate at the state border and having children turn into legal strangers. Ultimately, federal courts are going to have to decide these legal questions.
This is particularly true now that Connecticut has same-sex marriage. Connecticut has no residency requirement, so you can travel from Indiana and get married in Connecticut, then go back to Indiana. But as soon as you go back, your marriage will evaporate.
MM: Does that matter in a couple's day-to-day life?
JD: There are a lot of absurd scenarios. Say you get married in Massachusetts, have a child with artificial reproduction, travel to Indiana. Your children aren't your children anymore, because you didn't adopt them. Who has custody of these children? It's these issues of what's going to happen when established familiar legal bonds evaporate.
MM: For now, though, these cases are still theoretical?
JD: There may already be cases, but I don't know of any. I have heard, anecdotally, stories of people who've gone to Canada and gotten married. They come back and they know their marriage won't be recognized, but they don't challenge it -- lawsuits take time and money and heartache.