The NY Times had a story this spring about the Vermont civil union law, noting that the Vermont law requires that only persons who have resided in the state for at least year can dissolve civil unions; 85 percent of 5,400 gay and lesbian couples granted civil unions in Vermont are from out of state and Vermont had, at that point, dissolved 15. (This 4/6/03 NY Times story is accessible only via the Times archive.) The Times story reported on a same sex Texas couple who entered into a civil union in Vermont, then within a year sought a divorce in Beaumont, Texas, where they lived.
[T]hey were granted one on March 3 by a state District Court judge. But the attorney general of Texas, Greg Abbott, asked the judge to withdraw it. "A divorce cannot be granted where a marriage never existed," Mr. Abbott declared. The judge agreed to rehear the case, but Mr. Smith, who said he couldn't afford to fight the attorney general, withdrew his divorce petition. * * *Nearly 10 months later, this issue is in the news again. An AP story in the 12/12/03 NY Times reports on a divorce decree to a same sex couple granted by an Iowa judge. The story begins:When Vermont created its civil union law, legislators modeled it after the state's marriage statute, which has a one-year residency requirement for divorce. The restriction dates from an era when the state offered no-fault divorces and some neighboring states did not, and Vermont lawmakers didn't want the state to become a divorce mill.
"It's part of the divorce culture for us to say, `You thought enough of each other to get married; now we want to make sure you've thought enough before you get divorced,' " said William Dalton, deputy secretary of state for Vermont. "It might be nice if you could face the east and say three times, `I'm divorced, I'm divorced, I'm divorced,' but that's not how we do it."
Today, divorce is readily available to married couples in almost every state, and so Vermont's residency rule has few consequences for heterosexual couples. But no state legislature or court has extended the benefits and burdens of a civil union beyond Vermont. Gay and lesbian partners — and former partners — who have registered for civil unions exist in a legal gray area outside Vermont, experts say. Some observers foresee legal complications over joint property, child custody and health care benefits.
An Iowa judge's divorce decree for two women has sparked a legal challenge that could help decide whether some states can bar same-sex unions while others permit it. Gay rights activists say the divorce between Kimberly J. Brown, 31, and Jennifer S. Perez, 26, does not open the door to recognition of same-sex relationships, but a conservative group said Friday it will ask the Iowa Supreme Court to overturn the decree. "We believe the judge exceeded his authority,'' said Chuck Hurley, president of the Iowa Family Policy Center, a family advocacy group. Hurley and other conservatives fear the judge's decree, which refers to the union as a marriage, could be a step toward legitimizing same-sex unions, which are not permitted under an Iowa law passed in 1997.The Boston Globe, in a story yesterday headlined reports that:
In Massachusetts, where the state's highest court ruled last month that homosexual couples have the legal right to wed, analysts predict that married same-sex couples could face the same legal obstacles if they move away and wish to divorce. * * *Charles Lane, legal reporter for the Washington Post, had an excellent article last month (Nov. 19) touching on many legal aspects of civil union and same sex marriage laws. Some quotes:
"Iowa judge causes stir in granting gay divorce,"
Neary's [the Iowa judge's] order was not the first time a judge has granted a dissolution of a civil union from Vermont. In Texas earlier this year, a judge agreed to grant a divorce to a couple who wanted to end a Vermont civil union. But when the state attorney general intervened, the judge reversed his decision. In Connecticut, courts faced a similar problem, and a case filed by a Connecticut man to legally end his civil union was thrown out. After the state's highest court agreed to hear the case, the man died, and the issue became moot.Lawyers see similar problems ahead if Massachusetts allows same-sex couples to wed. Last month, the Supreme Judicial Court ruled that banning gay and lesbian couples from marrying violates the equal protection and due process provisions of the Massachusetts Constitution. Courts will eventually sort out whether gay marriages must be recognized in other states -- and if same-sex couples who marry in Massachusetts but move away can divorce in their new home states.
Alarmed by a 1996 Hawaii court case that raised the prospect of legalized same-sex marriage, Congress and 37 states enacted laws designed to keep the phenomenon from spreading across the country. It was a kind of legal flood-control system, built from statutes that defined marriage as the union of one man and one woman, designed so that no state would have to recognize a same-sex marriage from another state. * * *Indiana's prohibition against same sex marriage is found at IC 31-11-1-1. A report on the appeal of the Indiana same sex union case may be found in this earlier entry. Many of the documents from this case, Morrison v. Sadler, may be found here. The recent Massassachutts Supreme Court decision is reported in this entry. Access more on the DOMA here.The post-1996 legislation, known in its federal version as the Defense of Marriage Act (DOMA) [access the text of the DOMA here], reinforced Supreme Court doctrine, which interprets the U.S. Constitution to require states to give "full faith and credit" to one another's court judgments -- but not necessarily to their legislative or administrative acts. If Kansas started issuing driver's licenses to 14-year-olds, for example, police in next-door Missouri still could order drivers younger than 16 off the roads.
"It is settled that states are not required to recognize every marriage performed in every other state," Carpenter said. "And they're not required to do so when they have a public policy contrary to recognizing that marriage." This is why most of the state versions of DOMA include explicit language declaring that same-sex marriage is contrary to their public policy. * * *
Another line of attack against the federal and state DOMA legislation would be to argue that, by denying those who wish to form same-sex couples a right that is enjoyed by opposite-sex couples, they violate the constitutional guarantee of equal treatment under the law. The ACLU is currently pressing such a claim in a Nebraska federal court, arguing against the state's constitutional amendment on marriage, adopted by referendum in 2000, which prohibits the legislature from adopting any measure that would recognize same-sex marriage, civil unions or domestic partnerships.
The ACLU believes it has a strong case based on a 1996 Supreme Court ruling that invalidated a Colorado constitutional amendment. The amendment would have abolished state anti-discrimination laws benefiting gay men and lesbians, Coles said. * * *
Mathew D. Staver, president and general counsel of Liberty Counsel, which opposes same-sex marriage in courts and legislatures nationwide, noted that trial and appeals courts in Arizona, New Jersey and Indiana have recently dismissed equal-protection claims in same-sex marriage cases. But those cases will be appealed.
[Update] A review of the Court Docket shows that the Indiana Court of Appeals has scheduled oral argument in the Morrison v. Sadler appeal for Monday, January 12, 2004 at 11 a.m.
Posted by Marcia Oddi at December 14, 2003 07:30 PM