Suing our way to marriage equality?

Posted on 10 May 2007 at 6:41pm
By David Taffet Contributing Writer

Marriage rights are expanding, but experts predict it may take a while before the United States is on par with Canada and Europe



Ken Upton with the local office of Lambda Legal has hopes for getting same-sex marriage rights recognized in other countries imported to the U.S.

When Binyamin and Avi Rose decided to marry, they did what many Reform and secular Israelis do: They went abroad, because Israel only recognizes marriages performed domestically by Orthodox rabbis.

And since Benyamin and Avi are both men, they married in Canada.

When the couple returned home, they again did what other Reform and secular Israelis do: They filed for recognition of their foreign marriage. Lower courts denied their petition, but the nation’s supreme court ruled that Israeli law requires recognition of marriages performed in other countries. Suddenly, it was legal to be gay and married in Israel.

Will that work in the United States? Perhaps not so dramatically, but most marriage rights already won here have been won in the courts.

In 1993, the Hawaiian Supreme Court ruled the state must show a compelling reason to ban same-sex marriage, but the state amended its constitution before the court order could be enforced.

After that false start, the 1999 ruling by Vermont’s top court triggered the first civil unions in the U.S. And same-sex marriage in Massachusetts passed by that state’s legislature following the orders of that state’s top court.

Lambda Legal attorney Ken Upton says few lawsuits for additional rights are coming from couples married in Massachusetts. He sees problems with legal claims because of that state’s 1913 law that bars couples from marrying if their union would not be recognized in their state of residence.

Instead, Upton points to three other jurisdictions to watch out for: Iowa, Maryland and California. If one of these states passes a marriage law, he says, a variety of cases in other states could arise.

Upton divides marriage litigation into three categories. First are those taking the affirmative approach. As examples he cites successful lawsuits in Massachusetts, New Jersey and Connecticut as well as an unsuccessful New York case last year.

The second approach is recognition cases that have not developed yet because of Massachusetts’ problematic law. Here, a couple marries or registers a civil union in one state and would sue for rights at home.

Both of these are constitutional methods. Upton cites the Rhode Island example as the first successful use of this approach. That state’s attorney general ruled that Rhode Island should recognize out of state marriages under the full faith and credit clause.

But Upton is most excited about a third approach that uses comity rather than constitutional law. States not only recognize marriages performed in other states, but also those performed in other countries. The Israeli ruling is an example of gaining marriage rights through comity.

“I think you’re going to see some activity in New Mexico and New York,” Upton says, owing to those states’ favorable comity laws. “Those cases are just now starting to bubble up.”

While Upton marvels at how far we’ve come in the past 10 years, Dallas attorney John McCall says, “Equal? Boy, that’s going to take awhile.”


Attorney John McCall predicts that the GLBT community will continue to make inroads into many ancillary rights before same-sex marriage itself becomes widely legal.

McCall believes marriage rights will be won through an accumulation of smaller legal proceedings. He says probate is where gays and lesbians are most likely to win equality. When couples have legal documents in place and courts uphold those documents, those judges, he says, are recognizing gay and lesbian relationships.

Custody is another issue McCall cites. He has worked with a gay couple that had a child through a surrogate mother in California. Laws in that state permit a pregnant woman to sever parental rights during the third trimester and to place both adoptive parents’ names on the original birth certificate.

Texas must then recognize that birth certificate and schools will have to accept both men as legal parents. Even the federal government will have to accept the birth certificate naming same-sex parents as valid when used to apply for a social security card or a passport.

Those rights are coming quickly, McCall thinks. But nationally accepted marriage?

Upton believe the United States’ growing but confusing array of partnership laws marriage in Massachusetts, civil unions in Connecticut, New Jersey and Vermont, domestic partnerships in California and Oregon, reciprocal beneficiaries in Hawaii will ultimately lead to a national standard. But McCall cautions such advances might take another generation.

He sees some hope in custody battles he’s witnessed. He says that today judges shy away from allowing a parent’s sexual orientation to enter into custody rulings in ways they weren’t afraid to do 10 years ago. He’s observed most judges awarding custody to the parent providing the best environment for the child.

But McCall says we already have a mishmash of marriage laws that are not compatible between states. Some are community property states; some have common-law marriage; others do not. And those conflicting laws have not produced national standards.

Instead, McCall expects to see probate rights, workplace benefits and adoption become mainstream before marriage becomes legal. He thinks that when the next generation of lawmakers enshrines marriage equality into law, gay and lesbian relationships will seem so ordinary, they’ll wonder what the problem was.

WHAT’S IT CALLED THERE?

Already legal

Marriage Massachusetts
Civil union Vermont, Connecticut, New Jersey
Domestic partnership California, Oregon
Reciprocal beneficiaries Hawaii

Pending

Marriage New York. Gov. Elliot Spitzer has sent a bill to the legislature authorizing same-sex marriage. California. A bill passed the legislature last session. Gov. Arnold Schwarzenegger vetoed it, but it has been reintroduced and is set to pass both houses again.

Civil union New Hampshire. This law is about to pass the legislature. Gov. John Lynch said he will sign it into law. Iowa. Lawsuit pending. New Mexico. Gov. Bill Richardson sent a bill to the legislature which was defeated by one vote before the session ended. It should come up again next session. Maryland. Lawsuit pending.

Domestic partnership Washington. Gov. Chris Gregoire said she will sign if it passes.

David Taffet

INVITATION TO THE DANCE

Nothing shouts the seriousness of your intentions like a formal wedding invitation, but for years the marketplace has been pretty hetero-oriented in that regard.

That’s not the case with GayWeddings.com. The online boutique (with a showroom in the Washington, D.C., area) offers an easy way to find the right invitation for your event.

Kathryn Hamm, president of the company (and a Dallas native), praises a company called Outvite.com with pioneering the GLBT-focused invitation line; Outvite even crafted an exclusive line for GayWeddings.com.

Hamm can help customers with selecting card stock, type of engraving, wording everything to make your invitation unique. Price points vary: For those on a budget, the less expensive informal announcement cards can run as little as $2 each, “but it’s very easy to get quite quickly to $5 to $7 apiece lined envelopes, inner and outer envelope, reception map and folder all that,” she says. After all, no one can out-do the gay community when it comes to extravagance.

Arnold Wayne Jones

This article appeared in the Dallas Voice print edition, April 27, 2007.

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