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Same-sex marriage: Married but unequal

Op-Ed

It's time to fix the tangled legal mess of same-sex marriage in America.

July 22, 2011|By Douglas NeJaime

On Sunday, New York will begin issuing marriage licenses to gay and lesbian couples, further complicating the tangled legal mess of same-sex marriage in America.

Why does this complicate things? Consider what happens when legally married couples from New York move to, say, California. They'll see their marriages evaporate, based only on their sexual orientation.

Ultimately, this treatment will be exposed for what it is: unfair and unconstitutional. But until there is national recognition that same-sex couples are entitled to marry, under both state and federal law, the strangeness will continue.

Take the case of a same-sex couple that moves to California after getting married in New York. Here, the marriage will not be fully recognized, pursuant to Proposition 8, which in November 2008 amended the California Constitution to define marriage as only between a man and a woman. On the other hand, a same-sex couple that married in Massachusetts before November 2008 will be recognized as legally married under California law. Those married in another state after that date will be recognized in California as something akin to domestic partners, which entitles them to the rights and benefits of marriage under California law but not the label.

And here's another complication. Even if a same-sex couple is considered legally married under state law, the marriage won't be recognized under federal law. Thanks to the Defense of Marriage Act, same-sex couples get none of the federal benefits of marriage, such as spousal Social Security benefits after a death or the ability to bring a noncitizen spouse into the country. But, under a recent IRS ruling, the couple's income will be treated as community property for federal tax purposes if the married couple lives in California. This would not be true of married couples living in New York, which is not a community-property state.

California law recognizes four different classes of same-sex couples with official relationship status: First are those couples who married in California during the brief window after the state's Supreme Court declared same-sex marriage legal but before Proposition 8 was passed. They remain legally married in the state's eyes. Then there are the couples living in California who married outside the state before Proposition 8. They too are considered married in California. Then there are couples who have entered into domestic partnerships in California or in other places where they are legal. Finally, there are those who married in states where marriage is legal, but they did so after Proposition 8. They are considered de facto domestic partners in California. Of course, despite their differences, all of these couples share a striking commonality: They are considered single under federal law.

Things are even worse in some states. Imagine a married couple that moves to a state without even a domestic partnership law: The couple suddenly goes from being legally married to being legal strangers.

And don't even start on the issue of divorce. Married same-sex couples who relocate to states that refuse to recognize same-sex marriage may find that they have no access to divorce.

If this all seems absurdly confusing, it is. The messy situation puts into stark relief the complexities that arise when only some states offer full equality to lesbians and gay men, and it highlights the shakiness of a discriminatory system that will continue to yield countless stories of hardship.

In the modern age, it's not reasonable to expect that couples will stay in the states in which they marry. This presents huge complexities that need ironing out. Though marriage has always been regulated by individual states and is likely to remain a matter of state law, the Supreme Court has consistently recognized a federal constitutional right to marry.

Marriage is one of the oldest fundamental liberties the court acknowledges. In the not-too-distant future, the courts will rule on whether that liberty can be denied to same-sex couples.

In the case of Perry vs. Schwarzenegger, the federal challenge to Proposition 8, lawyer Ted Olson consistently refers to his clients' fundamental right to marry under the federal Constitution. Denying someone the right to marry the person of their choosing, he asserts, is unconstitutional.

The experiences of legally married couples moving to other states puts the issue in sharp relief. People are entering into marriage only to find themselves in legal limbo when a new job or family circumstances necessitate a move. Constitutional principles of due process and equal protection cannot tolerate such discriminatory treatment based solely on sexual orientation.

Douglas NeJaime is an associate professor of law at Loyola Law School.

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