A Nation Divided

Some may point to Kansas having passed a constitutional amendment banning same-sex marriages and civil unions as a sign that the country is moving in one direction.  Others may point to a poll in New York or actions in the Connecticut General Assembly as a sign that the country is moving in another direction.  I take all that I have seen as a sign that the country is moving apart.  In the foreseeable future we will have some states which allow same-sex couples to marry, some states which allow them "full" civil unions, some states which allow them some limited domestic partnership, and some states which reject any formal recognition of same-sex couples.  I think that is a fact that we must all face.  To those who would reply that the Federal Marriage Amendment--excuse me, the newly entitled Marriage Protection Amendment--will change this state of affairs I would reply (1) it will not pass the Senate,  (2) even if it did we would still face many of the same issues with civil unions, and (3) even if it did we would still face many of the same issues with marriages performed in other nations.  So we can't avoid the question, we must decide how to best address it.  Let us consider some possibilities a state may take.

Option I -- Blanket Nonrecognition.  A state, say Kansas, could instruct its court and agencies to refuse to recognize same-sex marriages and any consequences thereof.  For example, if a Massachusetts or Vermont court issues some judgment based upon the existence of a same-sex marriage or civil union--say in a wrongful death suit or a divorce settlement--that judgment would be completely unenforceable in Kansas.  This extreme approach might be comparable to a state refusing to enforce an order based upon recognition of slavery.  The idea is that slavery is so morally repugnant that to give even indirect effect to its existence is taking part in the crime.  I don't doubt that a few may view same-sex marriage as such an evil, and DOMA would seem to permit this (although this permission to ignore sister state judgments seems like the most likely aspect of DOMA to be declared unconstitutional), but I must wonder if states really want to hold themselves out as a harbor for those fleeing justice.

Option II -- Respect Foreign Judgments But Never Recognize The Marriage Or Civil Union Directly.  The state could decide that it is willing to recognize judgments but not the marriage or civil union itself.  This is hardly any better with regards to providing a harbor for those fleeing justice.  Yes divorce judgments would need to be enforced, but who needs a divorce.  A person could take all the family assets and flee to Kansas and remarry without divorce.  Is this what people want?  Or a couple from Vermont is driving through Kansas when they get into an auto accident.  The hospitals in Kansas do not, by law, allow one spouse to make medical decisions for the other.  I hate to think about all the consequences if one spouse died, especially if they had a child.

Option III -- Recognize Foreign Marriage and Civil Unions For Some Purposes But Not Others.  Perhaps Kansas may refuse to recognize the marriage or civil union for its own tax purposes, and refuse to recognize it for governmental programs, but allow it for determining next of kin.  They might require that anyone entering into marriage in the state have obtained a divorce from any previous marriages including same-sex marriages and civil unions.  The more situations the legislature deals with, the more guidance the courts and agencies of the state have.  A state may even pass a marriage evasion law (which some states already have) that would declare invalid a marriage of its own residents who marry elsewhere to avoid the states restrictions and then return to the state.  This option requires the legislature to give some serious thought to why it is prohibiting same-sex marriage and weigh that against the interests of other states and thier residents who decide that same-sex couples may marry or obtain civil unions. 

Option IV -- Recognize Foreign Marriages as a Civil Union.  For states with civil unions or domestic partnerships, it seems reasonable to treat foreign same-sex marriages the same way they would treat domestic civil unions or partnerships.  A couple would be "married" in Massachusetts and "civilly united" in Vermont.   Similarly it would make sense for states with same-sex marriages to recognize "full" civil unions from other states as marriages.  (There would need to be some test, though, for determining whether a foreign civil union was "full"). 

Option V -- Recognize Foreign Marriages.  Some states refuse to perform marriages within a certain degree of consanguinity or affinity, and yet are willing to recognize them if performed elsewhere.  It could likewise make sense for a state to refuse to prohibit same-sex marriages but recognize them if performed elsewhere.  This would allow the state to put forth its view that only men and women should marry, and yet still recognize that other states may reach different views and recognize that reality. 

These are just a few options, and which a state pursues may depend on the purpose in prohibiting same-sex marriage in the first place.  If the issue is keeping uniformity with other state laws, then liberal recognition policies make a great deal of sense.  If the issue is maintaining the traditional definition of marriage, then it may make sense to establish full civil unions and recognize foreign marriages as such.  If the issue is a fear that allowing same-sex marriage would "send a message" that marriage has nothing to do with procreation, then one may ask whether the same message be sent merely by acknowledging that other states and nations do allow it.  It is hard for me to offer any advice on this matter because I don't see that message being sent in the first place, nor do I see any other harm in allowing same-sex marriages in the state itself.  Still, whatever one's views, this is a discussion states should have.  States which have civil unions should consider how to treat foreign marriages (and foreign civil unions).  Even states opposed to same-sex marriage and civil union should consider the issue carefully.  If they choose blanket nonrecognition it should be with full awareness of the implications of that choice, and not just as a visceral reaction to same-sex marriage. 

 

Comments

[Fitz]

I have to say that I refute your very contention. At this point in history we have only a single state court (Mass.) that has forced gay “marriage” on its citizens through the most spurious and offensive legal reasoning. If this decision is allowed to stand it will be because of subterfuge in Massachusetts legislature and not a vote of the people.
Other than that you have a few states (in the north east) considering various civil union provisions but no final legislation.
As far as the Federal Marriage Amendment goes – this seems the most precient recent Poll.

http://washingtontimes.com/national/20050401-114205-2153r.htm

Your want to reconsider what a trend really is.
57-43 = Oregon.
59-41 = Michigan.
62-38 = California.
62-38 = Ohio.
66-34 = Utah.
67-33 = Montana.
71-29 = Kansas.
71-29 = Missouri.
73-27 = North Dakota.
75-25 = Arkansas.
75-25 = Kentucky.
76-24 = Georgia.
76-24 = Oklahoma.
78-22 = Louisiana.
86-14 = Mississippi.

Your title- A Nation Divided seems to be a matter of projection.
Rather than divided, I would say you have a nation united- in protecting traditional marriage.
Both the Federal district courts and the Supreme Court have yet to weigh in.
But the people have. (and continue to)

[D. Glenn Arthur Jr.]

Fitz, I wasn't aware that MA was forcing anyone to marry a same-sex partner against their will. I was under the impression that MA was allowing same-sex marriages, not forcing them on anyone.

(Yes, I know what you meant -- and basically disagree with that too -- but the point of this comment is to take issue with the rhetoric you used to present that idea.)

[John Howard]

When Congress passes the egg and sperm law, outlawing same-sex couples from having children together, then no states will be able to give all the rights of marriage to same-sex couples. The Supreme Court has already affirmed that marriage rights and procreation rights are synonymous, but Congress may want to also pass a law putting that in writing, so that no state can do away with marriage's procreation rights by calling a couple that is barred from attempting to procreate married.

[trey]

I find it interesting that you minimize the states that have passed or soon to pass civil union laws, laws that most opponents (including you i assume) of SSM marriage also oppose. The Maine legislature has passed a CU law, as soon will or already have Connecticut, New Jersey, New York. California has a legislatively passed DP law that is really a CU in all but name. In combination, this would mean that by population legislatively passed (without court order, so I'm leaving out MA, HI and Vermont) civil unions coming close to equal the population with those that have passed anti-marriage equality amendments.

Your few 'north east' states have quite a population compared to most of the states you list.

but of course, this all assumes that your premise of this comment

'might (or majority) makes right'

which it doesn't. So not only do I reject your premise, your numbers are extremely skewed.

Of course the religious right can start calling these legislative votes 'legislative tyranny' since they disagree with their view.

[Marty]

As a proud member of the "religious right" and whatever other stereotypes you'd like to lump me into, let me be the first to say that if the voters of california and massachusetts and vermont ect want gay marriages or their like, then so be it. I can tolerate the will of the people. It's tyrants who think they know better than and don't have to listen to everyone else that get my panties in a wad.

Funny though, how The People of california voted that marriage should be between one man and one woman. The Legislature then approved civil unions which are so much like Marriage that The Judiciary then struck down Proposition 22 (the man woman part), finding the hypocrisy of it all too much to bear. The people spoke, but not everyone has gotten the message just yet.

We WILL speak louder, if we must.

[Galois]

As I noted in the post even if one believed this country was moving toward prohibiting SSM nationwide, there is still the issue of recognition of civil unions and same-sex marriages from other countries. So either way, this issue must be addressed.

Perhaps some concrete questions could help. Should a foreign (either from antoher country or state) same-sex civil union be treated differently from a foreign same-sex marriage? Should the answer to that question depend on how closely the civil union approximates marriage? If a foreign civil union or domestic partnership is open to opposite-sex couples as well, should a foreign opposite-sex union be treated the same as a foreign same-sex union?

[Fitz]

In the end, these questions will be answered in one place – the Supreme Court.
As an attorney I can appreciate your question.
I’m afraid however that it begs the point.
If the question is “are we as a country going to recognize same-sex unions”
We as a country already recognize the validity of foreign marriages (opposite sex)
We as a country do not choose to recognize same-sex unions.
In order for consistency of law (and I believe DOMA already addresses this)
Foreign same-sex unions would not/should not be recognized at all.
Even in say Vermont, or on Massachusetts- weather they are called marriage or not, the issue of foreign recognition is a matter of U.S. Federal Law.

[Galois]

I know of no federal law says that a state cannot recognize a foreign marriage or civil union.

I agree that we must also answer this question on a federal level. To what extent do we want to recognize foreign marriages or civil unions in federal courts and agencies. I was focusing, though, on some of the more critical state aspects. You argue that they should not be recognized at all. I take that to mean that you believe a person married to someone of the same sex in say Canada should be able to remarry someone of opposite sex in Michigan without obtaining a divorce. If someone was ordered custody of a child in the dissolution of a same-sex union and the noncustodial parent kidnapped the child and fled to another state, that state should do nothing. If someone was similarly ordered to pay child support in a same-sex divorce/dissolution that person should be able to evade their obligations by moving to another state.

I certainly do not think that is wise public policy or good for children. I also don't think it's a good idea to just let courts deal with these issues as they see fit without any guidance from the legislature.

[John Howard]

I think we would just totally not recognize marriage between people of the same sex if they came from another country. Unless the two people are allowed to procreate here, then there is no reason to give them any respect or benefits due couples that may procreate (married couples). That's an easy one. The harder question is how will we prevent people in other countries from attempting to join two eggs or two sperm? The UN ban on cloning will help, surely they will also support a ban on SSP, so they will support sanctions and possibly even force to keep countries from allowing SSM, once it has been recognized as a license for SSP.

[Fitz]

Galois
This is exactly the tactic of the left in this debate - and right on schedule too!
First you use the court to force something through that the people don’t want (SSM- Mass)
or civil unions in Vermont.
Then you threaten the entire country with the specter of gay "marriage" and offer up a alternative of Civil Unions as some kind of a compromise. (California, Connecticut)

Now once these issues arise (the examples you paint above) you seek to get them treated legally like marriage.
My answer is that those "marriages' or "unions" should be given the legal weight of a simple contract- settled under contract law, and not given the legal sanction and weight that a true, state sponsored traditional marriage statue does.

As far as…..
“”I know of no federal law says that a state cannot recognize a foreign marriage or civil union””

I will allow you to find out how the following DOMA statute can easily be read to prohibit recognition of foreign same-sex unions.

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

Pub. L. 104-199, sec 1, 100 Stat. 2419 (Sep. 21, 1996), codified at 1 U.S.C. § 7 (1997). The second section reaffirmed the power of the states to make their own decisions about marriage:

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.

[Fitz]

State & Federal courts do not recognize polygamist marriages performed in other countries.
They are under no obligation to recognize gay marriages either.

[Galois]

First of all, I'm afraid I am unable to find out how to read DOMA as forbidding recognition of foreign marriages or civil unions. One section deals with how the words marriage and spouse are used in Acts of Congress and administravite bureaus and agencies of the United States. That section says nothing about what state legislatures, agencies and courts may do. It is simply a rule of construction, a guidance in how to interpret federal laws and policies, hence its codification in the US Codes under "Rules of Construction". It does not presume to instruct states how to interpret their own laws.

In fact, the other section, entitled "Powers Reserved to the States" clearly states that they are not required to give recogntion to same-sex marriages or unions. It does not say that states are not permitted to do so. If this were not clear enough from the text itself, it is even more obvious from the legislative history. DOMA was passed when it looked like Hawaii would soon be allowing same-sex marriage. Nobody talked about the law as preventing Hawaii from doing so. They merely wanted to be sure that other states and the federal government would not have to recognize Hawaii same-sex marriages. In fact, Bob Barr, the lead sponsor of DOMA has campaigned strongly against the FMA/MPA as interfering with the rights of states to set their own policies in this matter. Vermont has had civil unions for about 6 years now, Massachusetts is approaching one year of same-sex marriage and you are the first person I've seen suggest that DOMA does not permit them to do so.

As for polygamous marriages, states actually do in some circumstances recognize such foreign marriages for some purposes. For example California did so in In re Estate of Bir, 83 Cal. App. 2d 256 (1948). So the question is under what circumstances and how. I don't think you could settle things under contract law. For example a contract saying that one could not marry or a contract that required one to become a parent of a child is generally unenforcable. So such a policy would seemingly allow a person to remarry without divorce or escape child support payments. There is also a question of how one would determine the "terms of the contract". Note I am not talking here about obligating states to recognize same-sex marriages in all manners and circumstances, I am just asking that we put some thought into what circumstances and manners the state would like to recognize them. The idea that we should treat them merely as contracts between the two individuals seems, at the least, that it would need to be refined to be workable.

[Fitz]

Galois
My point was that DOMA made foreign marriages impermissible by operation of law. Just as it protects the various States from being required in recognizing Massachusetts marriages - it also allows foreign marriages to be barred.
(Unless, of coarse its deemed unconstitutional)

You can only imagine the frustration of the political and religious right if suddenly same sex marriage is introduced under the rubric of “states rights”

[Galois]

I think I see, Fitz. You were just pointing out that a state need not recognize a foreign marriage, not that it was not permitted to so if it wishes. My question is solely about what should a state wish. Now I would say that a state should wish to license its own same-sex marriages and recognize foreign same-sex marriages and those foreign same-sex unions which seem to be legal substitutes for marriage. I am trying to get a sense from those that are opposed to same-sex marriage, to what extent they would allow even indirect recognition of foreign same-sex marriages/unions. For example, would they want the state to allow someone in a same-sex marriage to remarry without divorce? Would they want the state to ignore child support orders? Would they want the state to ignore judgments in wrongful death cases? Would they want the state to distinguish in any way between foreign civil unions and marriages? If so, which would they be more likely to recognize? Would they want the state to recognize opposite-sex domestic partnerships? These are the sort of issues I think states need to be disussing in depth.

[trey]

As Galois says, there is not law that _proscribes_ the recognition of same-sex marriages. Any reading of the federal DOMA, as Galois points out, shows that it prohibits federal entities from recognizing SSM and prohibits requiring states and local jurisdictions from doing so, but does not proscribe them from such recognition.

And we have an example of such. New York City has decided to recognize SSM from other jurisdictions (Mass.) and countries (Canada, etc) for city purposes.

[Pete]

State & Federal courts do not recognize polygamist marriages performed in other countries.

Sorry to nitpick, but I think you meant to say that State & Federal courts do not honor polygamist marriages performed in other countries. If you think that Polygamous marriages in other countries aren't recognized by the Fed or by the states, then try telling that to Tom Green, whose polygamous marriage in Mexico was recognized, and prosecuted. Polygamous marriage is recognized and prohibited. Same-sex marriage, on the other hand, does not exist. Marriage as we know it no longer exists in Massachussetts; it's been replaced by something else with the same name.

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