A Defense of Marriage Divorced From Reality

Only Human

By Kathleen Peratis

Published March 27, 2008, issue of April 04, 2008.
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Same-sex couples that establish a legal relationship in a state that allows it and then move to a state that does not might be stuck in the relationship with no access to divorce.

At least 10 states and the District of Columbia allow some form of “relationship recognition,” including marriage (Massachusetts), civil union (four states), domestic partnership (five states), and reciprocal benefits (Hawaii), this according to the Human Rights Campaign, a Washington-based advocacy organization. In those states, the couple accrues a complex mix of rights and responsibilities during the course of their legal relationship.

But 45 states (and counting) have passed what are often called Defense of Marriage Acts, or DOMAs, prohibiting same-sex marriage. There is also a federal DOMA, passed by Congress in 1996 and signed into law by President Clinton, which allows all states to pretend that same-sex legal relationships never existed. Section 2 provides:

“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.” (Scholars agree that DOMA covers same-sex civil unions and domestic partnerships as well as marriage.)

DOMA upsets the normal operation of matrimonial law, in which courts adjudicate domestic relations disputes under their own laws and, where appropriate, may also apply the laws of another state that has an “interest” in the relationship. Those judgments are ordinarily entitled to enforcement in any court in the United States “whether they agree with the original basis for the marriage or not,” according to Stanley Cox, a professor at the New England School of Law.

But that is not how it happens under DOMA. Let’s say a same-sex couple has entered into a civil union in Connecticut, lives there for many years, accruing matrimonial rights under Connecticut law, then moves to Oklahoma and later wants to dissolve their union. Where does DOMA leave them? Connecticut courts would no longer exercise jurisdiction over the relationship since the couple no longer resides there, but under DOMA (and the state’s own mini-DOMA) Oklahoma might well refuse legally to terminate the relationship, because, as far as it is concerned, no legal relationship exists.

Or say you have a decree from a state court in Vermont directing your same-sex former domestic partner to pay spousal support, or pay you half of the value of the home you shared. Then you move to Idaho and try to enforce that judgment. Does DOMA give your former partner the defense that you cannot enforce the Vermont judgment because your civil union was void in Idaho? And then there are the gay people who have gotten married, civil unioned and domestic partnered in different states as those options became available, just to accumulate as many rights as possible, giving no thought — who does? —to the day they might want to undo it all.

“If there is one thing that the people are entitled to expect from their lawmakers, it is rules of law that will enable individuals to tell whether they are married and, if so, to whom,” Justice Robert Jackson said in a dissenting opinion in a 1948 Supreme Court case involving jurisdiction in the context of a divorce proceeding.

“If it is not intolerable for a couple to be married and not married at the same time, it is at least supremely frustrating,” agrees Cox. Yet thanks to DOMA, that is exactly what we have. What did its supporters expect?

Hillary Clinton says DOMA was insurance against a federal constitutional amendment banning same-sex marriages. Bill Clinton said as recently as a week ago that the point was to insure that “the people of Idaho did not have to recognize a marriage sanctified in Massachusetts.” (Actually, the impetus for DOMA was not Massachusetts in 2003 but Hawaii’s brief flirtation with same-sex marriage in 1996.) The former president also said it was for the good of gay people: “The lives of gay people — will there be more or fewer gay couples free of harassment if the law is that every gay couple in America could go to Massachusetts and then have to be recognized in Utah?”

So far there has been little same-sex divorce litigation under these multiple-state DOMA conditions — two, to be exact — and so courts have had few opportunities to invoke DOMA. But so long as it is on the books, it will provide an extra string to the bow of homophobes.

Barack Obama advocates repealing the whole thing (though he does not favor same-sex marriage). Hillary Clinton would scrap section 3 — which, in effect, permits denial of federal benefits to gay couples — but retain section 2. (Bill Clinton erroneously said Hillary now favors total repeal, but her campaign issued a correction.) She also believes that the facts on the ground are moving in favor of equality. She said last month, “I think it’s really clear that, you know, people in the states are moving much more rapidly to deal with the inequalities than you would find at the federal level.”

Real equality, however, is hardly on any of the candidates’ agendas. In the meantime, we should at least repair some of the gaping holes.

Kathleen Peratis, a partner at the New York law firm Outten & Golden, is a board member emerita of Human Rights Watch.


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