Gay marriage laws in the United States continue to create problems for lesbian and gay couples, particularly for those in need of a "gay divorce." Lawyers who saw gay marriage as opening up a new niche area of family law practice may be disappointed to learn that judges in states that ban gay marriage are refusing to recognize the marriage, even if the marriage was formed in a state where gay marriage is recognized. The most recent setback comes from the State of Nebraska, where a Nebraska judge refused to grant a divorce to a lesbian couple that had gotten married in Vermont. While the judge was kind enough to approve the child custody agreement made by the divorcing lesbian couple, he ruled that the Nebraska Constitution's restriction of the marriage definition to being between a man and a woman prevented him from granting them a divorce.
Other states, particularly those with constitutional prohibitions on gay marriage, are also wrestling with this issue. In Texas, the question of whether Texas courts have subject matter jurisdiction to grant a divorce to a gay couple is currently being reviewed by the Texas appellate courts. Although the American Bar Association (ABA) passed a resolution in 2010 urging "state, territorial, and tribal governments to eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry," the resolution seems to have had little influence on how judges are reviewing laws and constitutional amendments dealing with gay marriage.
What are your thoughts on this subject? Does "full faith and credit" mean that a state that bans gay marriage must recognize a gay marriage formed in another state? Should states that ban gay marriage still be required to grant divorces to gay married couples that move to that state and establish legal residency there? So far, courts in Nebraska, Texas, Connecticut, Pennsylvania, and Rhode Island have said no. Share your thoughts in the comments section below.
For more information on this issue, see:
- ABA passes resolution supporting right to civil marriage for gay and lesbian couples
- Gay judge raised as issue in in Prop 8 appeal over same-sex marriage ruling - a bad argument raised too late to matter
- Do states with a ban on same-sex marriage have to grant a same-sex divorce? A Texas couple tests the law
Comments
The problem is that the situation requires the application of facts, logic, and reason — the bread-and-butter of legal practice — to hatred, bigotry, and mob sentiments. Given the logical and legal inconsistencies in bans on gay marriages, courts and lawyers will have to create increasingly bizarre and far-fetched legal fictions to apply these bigoted prohibitions on a day-to-day basis.
The situation is not without precedent; witness the various racial purity rules that the US and South Africa had to develop in order to try to make sense of illogical racist laws, or the ways in which the legal system struggled to recognize the humanity of women while at the same time deprive them of legal rights.