Accessing those 1,200 federal benefits (III)

Comments

1. Strict Scrutiny on Apr 22, 2008 2:04:39 AM:

   This is an interesting thought, but I wonder if it would really be this easy -- that is for a gay couple in say, Georgia, to take a quick trip to Vermont to get civil-unioned, and then return back to Georgia and have the union recognized by the feds but not the state authorities.

   At least one state, Massachusetts, will not perform a same-sex marriage unless the individuals are MA residents or plan to become MA residents. Might not some other states have similar laws that prevent same-sex couples from doing "stop-over" visits to get civil-unioned?

   Also, I wonder if the federal government is at all required to defer to a couple's state of residency for purposes of recognizing marital or civil union-type rights. Would the federal goverment be required to recognize a union if the couple's state of residence did not? I cannot think of any reason the feds would do this, but I don't know. It's an interesting question.

1. Chris on Apr 22, 2008 2:50:52 PM:

   SS makes a good point. Residence requirements in marriage laws vary by state and the same will undoubtedly be true for civil union/DP laws. But so long as some states don't have residency requirements, then the option to travel is there for everyone.

   Remember also that there are residence requirements for dissolution as well. Vermont, for example, allows anyone to travel their to get "civil union'd," but you must live there for one year before the state's courts can be used to dissolve the union.

   Add to that nightmare the uncertainty of whether other states will recognize the civil unions from other states. DOMA is limited to gay marriages and purports to allow each state to decide whether to recognize gay marriages from other states. In fact, even without DOMA each state would have that right, as it does for civil unions -- subject to the U.S. Constitution's "full faith and credit" clause.

   That clause requires every state to give "full faith and credit" to the legal documents and decisions of other states, unless there is an important public policy reason not to -- a pretty big "unless." Ultimately, the U.S. Supreme Court will have to decide whether antipathy toward gay relationships justifies refusal to recognize gay marriages and/or civil unions.

   All that uncertainty makes the law that Matt suggests only a very preliminary step. The legal nightmares that inevitably follow will increase pressure for a more equitable solution.

1. Andoni on Apr 22, 2008 4:22:02 PM:

   Two points:

   Matt Coles told me last year, if I were choosing a state to unite in, it should be CA. The reason is you can both unite and divorce without having to live there.

   Second, knowing our community, I sure hope this doesn't end up being an ENDA-like battle. What if the above language is proposed before DOMA can be repealed? Then people with civil unions will get federal benefits before married couples in MA. I can just hear the ENDA-like fight now, with those in marriages saying we can't pass the above law until they too are included for the federal benefits ---by repealing DOMA.

   Am I underestimating our community's team spirit?

1. acoolerclimate on Apr 22, 2008 8:53:21 PM:

   I have a question. (Hopefully there is a lawyer reading who can answer). Say you are bisexual, live in MA and marry someone of your same sex. You end up breaking up, but do not get a divorce. But you do move out of State to one that has no recognition of same sex couples. So now this new state is not recognizing the marriage that was performed in MA. You now meet someone of the opposite sex. Since to this new state you are not married, you freely get married to this new person. (by the way, this would be correct, right? You could now legally get married cause this new state does not recognize your MA marriage?). I'm sure you're all seeing where I'm going with this.

   Your old married partner is still living in MA and is still considered married. But you moved out of State and got remarried to someone of the opposite sex. Now what? And what happens if you with your new opposite sex marriage, moves back to MA?

   I can see a whole bunch of scenarios all along these same lines. Anyone have any idea about the legality of all this?

1. Strict Scrutiny on Apr 23, 2008 2:24:10 AM:

   Acoolerclimate:

   I think I can predict the outcome of one of the scenarios you describe:

   And what happens if you with your new opposite sex marriage, moves back to MA?

   You get prosecuted for bigamy.

   It is difficult to predict the outcome of the other situations you describe because the laws of the 50 states vary considerably on marriage and civil union issues.

1. Andoni on Apr 23, 2008 9:01:35 AM:

   I agree with strict scrutiny on the bigamy charges if you back to MA. Whether you are a bigamist in that new state that didn't recognize your original marriage, that would make an interesting court case--- especially if the original spouse wanted to make an issue out of it.

   Acoolerclimate brings up legitimate points. And that is part of the strategy of the legal experts at our national organizations. As more states allow gay marriage and more gays get married, hopefully they will move around and cause a lot of problems when they move to a new state. They will create ridiculous situations such as..... opps, you crossed a state line...you're not married any more...you don't get medical insurance, your children are bastards now, you can't talk to the teacher about your child any more. That last will and testament you made in MA when you guys were spouses....opps we can't carry out the provision in this state.

   Hopefully we will create thousands of problems that will have to be addressed by the Supreme Court to determine whether this is one country or confederation of smaller country-like states, such as Europe was prior to WWII or prior to the EU.

   If enough publicity is given to these day to day ridiculous situations, I believe more and more of the public will see things our way.

   When the issue finally comes to a head, it may boil down to a variation of the question that was asked in 1860, are we a Union or are we a Confederacy? There is no guarantee that the Supreme Court would do the right thing, but if it did the wrong thing, it would severely impair the smooth functioning of our legal system.

1. acoolerclimate on Apr 24, 2008 8:00:40 PM:

   "And what happens if you with your new opposite sex marriage, moves back to MA?

   You get prosecuted for bigamy."

   I don't know, I'll bet a good lawyer could argue that when you moved across State Lines you were given a forced divorce, so your re-marriage is legal. That would be a fun case to watch.

   I can think of all kinds of scenarios that will be a nightmare to litigate. I've been surprised that these issues have been given little press.