The Changing and Conflicting State of Same-Sex Marriage

In 1996, the federal government passed the Defense of Marriage Act (DOMA), permitting states to refuse to recognize valid marriages between persons of the same sex performed in other states, and, by doing so, moved into the states' traditional, and formerly exclusive, dominion over marriage. The Act, widely believed to be an unconstitutional violation of the Full Faith and Credit Clause of the U.S. Constitution, has been tested only once, when on Aug. 17, a bankruptcy judge in Washington State became the first federal judge in the country to rule on its constitutionality. U.S. Bankruptcy Judge Paul B. Snyder held in In re Kandu, No. 03-51312, 2004 Bankr. LEXIS 1233 (8/17/04) that DOMA was not unconstitutional. Nonetheless, in a major federal and state election year, opponents of same-sex marriage have initiated efforts to amend both state and federal constitutions widely on the theory that state laws forbidding such unions, and DOMA itself, are not sufficient to “defend” or “protect” marriage. Efforts continue to amend the federal constitution to bar any American state, not just from recognizing these unions from other jurisdictions, but from passing laws within the state's own jurisdiction to permit them.

The result of much of this activity has, in the short term at least, caused uncertainty and confusion – not just among same-sex couples, but among lawyers who advise them and judges who have been called upon to resolve their disputes. Same-sex marriages and civil unions have become an exception, in many courts, to what was traditionally a question of a marriage recognized by another state if valid where performed. This has caused great confusion among lawyers, beyond the simple matter of conflict of laws. The patchwork of marriage rights and interests available to same-sex couples is fraught with a growing collision between the familiar rights and interests attendant upon marriage and the social and cultural conflicts attendant upon changing and divergent political, social and religious beliefs. This increasing legal uncertainty has wrought an unprecedented challenge to lawyers, particularly (but certainly not limited to) those who practice domestic relations law.

Legal Conflicts

Matrimonial attorneys must navigate these inconsistencies and deal with an unprecedented variety of legal conflicts and potential clients from a variety of jurisdictions or interests. The question is at once both simple and complex: What rights and remedies do persons of the same sex have upon the break-up, or dissolution, of their relationships, whether legally sanctioned as marriage, civil union, domestic partnership, or otherwise; and what advice can practitioners give to their clients who seek legal protections or rights and interests based upon such relationships?

The question is neither readily nor reliably answered. The reality of the changing and conflicting legal landscape for same-sex couples seeking recognition of their relationships is complicated by the historic — and constitutionally protected – mobility of Americans (including the increasing residency here of foreign nationals, for extended periods of time in which property is acquired and relationships are formed or fail). It is further complicated by the willingness of same-sex couples to travel elsewhere to obtain legally valid marriages in other jurisdictions, and then return to their state of residence and demand recognition of the marriage. While persons have often married in jurisdictions without regard to residence, same-sex marriage has seen an unprecedented movement of parties to other jurisdictions solely for the purpose of obtaining a marriage they could not obtain in their state of residence.

The practitioner, faced with these myriad inconsistencies and competing considerations, and a conflicting, unsettled and rapidly changing legal landscape, is increasingly confronted with an inability to advise the client clearly and reliably of his or her rights or interests, whether as married, in partnerships, or upon divorce or break-up.

Understanding the problem is one key to advising clients. Protecting them, or giving them sufficient advice and assistance to provide them with a modicum of protection, is another. Marriage as an institution is distinct from the legal, contractual devices employed to secure domestic partnerships or other forms of relationships between persons of the same sex, relationships that formerly lacked any status at law. The legal protections – the “benefits and burdens” — of marriage are not inherently contractual. They are not spelled out in detail in a given state's marriage statutes (if anything, they are found in the dissolution part of the statute, but that is another matter). The rights of married persons chiefly flow from the status itself as a matter of social construct, not personal contract. These rights include the expectation of redress upon dissolution or divorce.

By contrast, lacking rights inherent in status, the legal rights of domestic partners, or civil unions have been mostly contractual (although statistically a relatively small number of long-term same-sex relationships have sought legal protection). Individuals who understand that there is no contractual prerequisite to traditional marriage and seek to marry another person of the same sex usually refer, not to prior legal questions of contractual relations to secure their relationships, but rather to historical and simple notions of what to expect upon marriage: the commitment, the legal status, and the right to be recognized as married. From this simple status, all else should flow. For the practitioner, this apparently simple presumption presents a difficult question at the primary level of protection: if marriage is available to persons of the same sex, and if (as in Massachusetts and Ontario, for example), its legalization involved no new statutes but the simple removal of the gender distinction from the existing marriage statute, the lawyer reasonably should believe that the status itself should suffice. Understanding the political and legal efforts to limit or restrict recognition of the status, however, leads us to understand that status is most likely not enough.

Recognition

Recognition is the primary obstacle to protection of the rights of married same-sex persons. First, in most jurisdictions, there is no legal recognition of same-sex marriages or unions of any kind; in other jurisdictions, they are expressly prohibited by statute – and in some instances by case law (some as to residents of the state, others as to marriages from other states or jurisdictions, and still others without distinction as to whom). Second, there is increasing support for exceptions to recognition, simply on the basis of the homogeneous gender of the parties to the marriage. Third, the marital status of same-sex couples is not recognized when it is invoked, relied upon, or used either in pursuit of government benefits or compliance with status-based classifications, such as filing tax returns, claiming social security or immigration benefits or making medical and other decisions for a spouse (all based or dependent upon marital status) or in pursuit of benefits from private companies and concerns, such as making claims for insurance and other benefits of employment. Fourth, the status of the parties on dissolution of the relationship is not recognized, eg, in the incursion of penalties by same-sex unions upon dissolution, not due to the status of the relationship, but to the transfer and division of property and interests acquired during the relationship, in the form of tax burdens, which are avoidable by parties to a marriage upon dissolution.

These competing interests and considerations challenge what was and has been a fairly uniform and predictable legal matter: the state's traditional and near-exclusive authority over marriage and divorce, as a civil institution, and the recognition, from state to state, of foreign marriages if valid where celebrated. Marriage and dissolution laws are fairly consistent from state to state. Similarly, the rights and interests attendant upon divorce has in the past 30 years, become more or less consistent from state to state.

The Balkanization of U.S. Marriage Laws

The emergence of same-sex marriage, and the reaction in certain jurisdictions, has reversed this trend and caused a balkanization of American marriage laws. The availability of same-sex marriage, and the increasing incidence of same-sex couples seeking legal redress attendant upon or for the dissolution of, their relationships, in light of DOMA, has ripened the issue of recognition between jurisdictions.

In addition to the problem of recognition of same-sex marriages that are clearly valid where performed, in some jurisdictions, same-sex unions had been approved but their validity was later voided, has become subject to further determination, or the relationship has been sanctioned in contexts or statuses other than marriage. The recent grant of marriage to over 4000 same-sex couples in the County of San Francisco was declared void by the State Supreme Court (Woo et al. v. Lockyear et. al, Cal. S.Ct. August 12, 2004). The court, however, did not rule on the constitutionality of California's ban on marriages between persons of the same sex, which is challenged in a separate suit pending in the lower courts there. Those licenses granted this spring in Multnomah County, OR, have been declared not illegal, while the issuance of marriage licenses to same-sex couples in Sandoval County, NM, and the city of Asbury Park, NJ, was stopped, but the validity of those granted remains subject to further legal determination. The licenses granted this spring in New Paltz, NY, were recently upheld by a New York State Supreme Court Judge, who refused to invalidate them and declined to enter an injunction preventing further licenses from issuing.

Moreover, legally obtained marriage licenses or licenses granting legal status short of, or in lieu of, marriage may be subject to the same recognition problems in other jurisdictions. For example, Vermont grants civil unions to same-sex couples, but the statute specifically provides that it is not “marriage” and dissolution is subject to residency in Vermont, according to Vermont law. Civil Unions granted under Vermont law are neither expressly recognized — nor expressly prohibited – by any state in the U.S. This is generally true of same-sex (and in some instances, opposite sex) civil unions obtained by residents of many western European nations, including Denmark, France, Iceland, Sweden and Switzerland.

The validity or legal significance of these relationships under the laws of an American state is untested and questionable and thus, presumably, left to the courts. Such a test is precisely what occurred in 2002 when a West Virginia court granted a dissolution of a resident couple's Vermont civil union, holding that the “parties are citizens of West Virginia in need of a judicial remedy to dissolve a legal relationship created by the laws of another state.” In re the Marriage of Misty Gorman and Sherry Gump, No. 02-D-292 (W.Va. Fam. Ct., Marion County Jan. 3, 2003). Similarly, last year a Texas court granted a dissolution of a resident couple's Vermont Civil Union, only to be ordered to rescind the decision by the Texas Attorney General, who declared it illegal. The parties ultimately withdrew their petition for divorce. (Russell Smith and John Anthony; AP, April 2, 2003.) In December 2003, a judge in Iowa “mistakenly” signed a judgment granting the request of two women to terminate a civil union they had obtained in Vermont. When told that he had done so in error, the judge refused to rescind his decision and cited the Full Faith and Credit Clause of the U.S. Constitution, asserting that it required him to recognize the laws of other states, and that in any case, he was merely resolving a matter between two residents of Iowa, as courts have routinely done. The matter is presently pending in the state courts. Alons vs. District Court for Woodbury County (Iowa, Woodbury County No. CDCD119660, 1994; In the Matter of Kimberly Brown and Jennifer Perez, (Iowa Dist. Ct., Woodbury County, Nov. 14, 2003). These cases follow a 2002 decision in the Connecticut courts, upheld by that state's supreme court, that the state had no jurisdiction to dissolve a Vermont Civil Union. Rosengarten v. Downes, 802 A.2d 170, cert. granted, 806 A.2d 1066 (2002),appeal dismissed (Dec. 31, 2002).

California enacted a sweeping domestic partnership law to take effect Jan. 1, 2005. Although it distinguishes the rights of the same-sex union from those of marriage, it provides the couples with most, if not all, of the rights and remedies available to divorcing couples under California law, including, but not limited to, the provisions of community property rights. A.B.205 (Calif., 2003). Challenges to the constitutionality of the law were recently dismissed. Senator Night, et al., v Gov. Schwarzenegger, et. al, No. 03AS05284 and 03AS07035 (consol)(Sep. 10, 2004). New Jersey's recently enacted comprehensive domestic partnership law also distinguishes its provisions from those that apply to marriage. However, it contains extensive provisions detailing the rights and interests of the partnership and limiting the benefits available upon dissolution. There are also hundreds of other statutes now in effect across the United States, mostly municipal or countywide, which grant a variety of rights and interests to couples of the same sex.

Finally, the problems of recognition are further underscored by the nature of dissolution. As divorce practitioners are all too well aware, the breakdown of a marriage is often formalized or triggered by a particular event, or moment, and the relief sought or required can be immediate or temporary. However, the process of obtaining a divorce, can typically take anywhere from a few months to a few years, depending upon the questions at issue between the parties and the need to value property or resolve custody questions. Temporary relief is a critical element of the divorce process which, if the state refuses to recognize the relationship in the first place, could well result in difficult and significant problems to a couple who would otherwise be able to avail themselves of the courts in their dissolution.

Considerations Separate From, or Not Based Upon, Marital Status

Lawyers should understand and anticipate that same-sex couples — or complaining parties within a same-sex couple — have rights that are independent of any claim of marital status. Those rights or interests may be enhanced, or complicated — or both — by their marital status, or their ability to marry within a given jurisdiction. The claim could be one a practitioner might pursue on behalf of a client irrespective of, as a consequence or because of, or in addition to, a claim based upon a valid same-sex marriage from another jurisdiction. The claim is a function of the state law of the resident claimant's state, and the question is whether that state has such additional, or other legal protections, eg, domestic partnership protections. Certain provisions of Illinois divorce law, for example, are available irrespective of marital status (chiefly custody and rights relating to legally adopted children). Children born to domestic partners under California's new law, effective January 1, 2005, will be presumed to be children of both parties, irrespective of their progeny. Other rights and remedies independent of marital status can be found elsewhere in the divorce statutes of many states. The ability to marry — whether at home or in another jurisdiction — and its effect on these rights is unclear. If the marriage is subject to a declaration of invalidity, the court may be less inclined to resolve competing claims arising elsewhere in the law. Consequently, clients would be well advised not to rely on marital status — given the increasing conflicts from state to state — to presume legal parentage of children not born of a validly recognized marriage. Particularly with regard to children, they should utilize all available remedies to formalize their parental rights and claims.

Conclusion

The lawyer faced with helping a client who is a partner in a same-sex relationship navigate the increasingly complicated and confusing marriage laws from state to state is best advised to understand these conflicting interests in general, and in particular, to understand the specific provisions of the state's marriage statutes.

The attorney should know whether or not the state expressly prohibits marriage between two persons of the same gender and whether the divorce statute itself is gender specific, inherently dependent upon relevant definitions that may be contained in the marriage statutes, or both. Furthermore, the attorney must know whether there are prohibitions against residents of the state traveling elsewhere to obtain such marriages and, finally, whether there are public policy considerations in the state's statutes that speak to same-sex marriage. In addition, it would be helpful to be familiar with the state's historical treatment of foreign marriages, as well as the state's constitutional provisions regarding equal protection of its laws, and the legal record of its treatment of unmarried couples generally, and same-sex couples in particular. There is no reliable guide to advise the client. Given the increasing conflict between the legalization of same-sex marriages, the historical recognition by states of foreign marriages, and the growing use of legal devices to create exceptions to the recognition of same-sex marriages, it seems clear that any reliable guidance will have to come from the courts. In the meantime, lawyers should obtain for their clients whatever statutory protections are available to secure or safeguard particular interests, and do so with as much foresight as possible in the event of further legalization of the status of same-sex unions.

Editor's Note: For daily updates on litigation and legislation in the same-sex marriage arena, go to www.ljnonline.com, and access the Same-Sex Marriage interactive map.

The May 17, 2004 legalization of same-sex marriage in Massachusetts cleared a symbolic and practical barrier to marriage between persons of the same sex within the United States, as the state became the first in the U.S. to give legal sanction to marriage between persons without regard to gender. The formal legal acceptance of same-sex marriage by a single jurisdiction within the United States, however, merely exacerbated a problem that has been developing and evolving for some time: the growing legal uncertainty brought by the legalization of same-sex marriage and unions by certain jurisdictions on the one hand, and increasing efforts to prohibit them from being granted or recognized, in others.

At least 36 American states have amended their marriage laws either to define marriage as a union only between a man and a woman, or to prohibit marriage between persons of the same sex, or both; many states have passed laws expressly barring recognition of such relationships or unions, from other jurisdictions. Eleven states had questions on their November ballots to amend their respective state constitutions to bar same-sex marriages (Missouri already approved one in August and Louisiana approved one in September, but it was overturned Oct. 4, 2004) and some would bar almost any kind of partnership or union between persons of the same gender.

DOMA

In 1996, the federal government passed the Defense of Marriage Act (DOMA), permitting states to refuse to recognize valid marriages between persons of the same sex performed in other states, and, by doing so, moved into the states' traditional, and formerly exclusive, dominion over marriage. The Act, widely believed to be an unconstitutional violation of the Full Faith and Credit Clause of the U.S. Constitution, has been tested only once, when on Aug. 17, a bankruptcy judge in Washington State became the first federal judge in the country to rule on its constitutionality. U.S. Bankruptcy Judge Paul B. Snyder held in In re Kandu, No. 03-51312, 2004 Bankr. LEXIS 1233 (8/17/04) that DOMA was not unconstitutional. Nonetheless, in a major federal and state election year, opponents of same-sex marriage have initiated efforts to amend both state and federal constitutions widely on the theory that state laws forbidding such unions, and DOMA itself, are not sufficient to “defend” or “protect” marriage. Efforts continue to amend the federal constitution to bar any American state, not just from recognizing these unions from other jurisdictions, but from passing laws within the state's own jurisdiction to permit them.

The result of much of this activity has, in the short term at least, caused uncertainty and confusion – not just among same-sex couples, but among lawyers who advise them and judges who have been called upon to resolve their disputes. Same-sex marriages and civil unions have become an exception, in many courts, to what was traditionally a question of a marriage recognized by another state if valid where performed. This has caused great confusion among lawyers, beyond the simple matter of conflict of laws. The patchwork of marriage rights and interests available to same-sex couples is fraught with a growing collision between the familiar rights and interests attendant upon marriage and the social and cultural conflicts attendant upon changing and divergent political, social and religious beliefs. This increasing legal uncertainty has wrought an unprecedented challenge to lawyers, particularly (but certainly not limited to) those who practice domestic relations law.

Legal Conflicts

Matrimonial attorneys must navigate these inconsistencies and deal with an unprecedented variety of legal conflicts and potential clients from a variety of jurisdictions or interests. The question is at once both simple and complex: What rights and remedies do persons of the same sex have upon the break-up, or dissolution, of their relationships, whether legally sanctioned as marriage, civil union, domestic partnership, or otherwise; and what advice can practitioners give to their clients who seek legal protections or rights and interests based upon such relationships?

The question is neither readily nor reliably answered. The reality of the changing and conflicting legal landscape for same-sex couples seeking recognition of their relationships is complicated by the historic — and constitutionally protected – mobility of Americans (including the increasing residency here of foreign nationals, for extended periods of time in which property is acquired and relationships are formed or fail). It is further complicated by the willingness of same-sex couples to travel elsewhere to obtain legally valid marriages in other jurisdictions, and then return to their state of residence and demand recognition of the marriage. While persons have often married in jurisdictions without regard to residence, same-sex marriage has seen an unprecedented movement of parties to other jurisdictions solely for the purpose of obtaining a marriage they could not obtain in their state of residence.

The practitioner, faced with these myriad inconsistencies and competing considerations, and a conflicting, unsettled and rapidly changing legal landscape, is increasingly confronted with an inability to advise the client clearly and reliably of his or her rights or interests, whether as married, in partnerships, or upon divorce or break-up.

Understanding the problem is one key to advising clients. Protecting them, or giving them sufficient advice and assistance to provide them with a modicum of protection, is another. Marriage as an institution is distinct from the legal, contractual devices employed to secure domestic partnerships or other forms of relationships between persons of the same sex, relationships that formerly lacked any status at law. The legal protections – the “benefits and burdens” — of marriage are not inherently contractual. They are not spelled out in detail in a given state's marriage statutes (if anything, they are found in the dissolution part of the statute, but that is another matter). The rights of married persons chiefly flow from the status itself as a matter of social construct, not personal contract. These rights include the expectation of redress upon dissolution or divorce.

By contrast, lacking rights inherent in status, the legal rights of domestic partners, or civil unions have been mostly contractual (although statistically a relatively small number of long-term same-sex relationships have sought legal protection). Individuals who understand that there is no contractual prerequisite to traditional marriage and seek to marry another person of the same sex usually refer, not to prior legal questions of contractual relations to secure their relationships, but rather to historical and simple notions of what to expect upon marriage: the commitment, the legal status, and the right to be recognized as married. From this simple status, all else should flow. For the practitioner, this apparently simple presumption presents a difficult question at the primary level of protection: if marriage is available to persons of the same sex, and if (as in Massachusetts and Ontario, for example), its legalization involved no new statutes but the simple removal of the gender distinction from the existing marriage statute, the lawyer reasonably should believe that the status itself should suffice. Understanding the political and legal efforts to limit or restrict recognition of the status, however, leads us to understand that status is most likely not enough.

Recognition

Recognition is the primary obstacle to protection of the rights of married same-sex persons. First, in most jurisdictions, there is no legal recognition of same-sex marriages or unions of any kind; in other jurisdictions, they are expressly prohibited by statute – and in some instances by case law (some as to residents of the state, others as to marriages from other states or jurisdictions, and still others without distinction as to whom). Second, there is increasing support for exceptions to recognition, simply on the basis of the homogeneous gender of the parties to the marriage. Third, the marital status of same-sex couples is not recognized when it is invoked, relied upon, or used either in pursuit of government benefits or compliance with status-based classifications, such as filing tax returns, claiming social security or immigration benefits or making medical and other decisions for a spouse (all based or dependent upon marital status) or in pursuit of benefits from private companies and concerns, such as making claims for insurance and other benefits of employment. Fourth, the status of the parties on dissolution of the relationship is not recognized, eg, in the incursion of penalties by same-sex unions upon dissolution, not due to the status of the relationship, but to the transfer and division of property and interests acquired during the relationship, in the form of tax burdens, which are avoidable by parties to a marriage upon dissolution.

These competing interests and considerations challenge what was and has been a fairly uniform and predictable legal matter: the state's traditional and near-exclusive authority over marriage and divorce, as a civil institution, and the recognition, from state to state, of foreign marriages if valid where celebrated. Marriage and dissolution laws are fairly consistent from state to state. Similarly, the rights and interests attendant upon divorce has in the past 30 years, become more or less consistent from state to state.

The Balkanization of U.S. Marriage Laws

The emergence of same-sex marriage, and the reaction in certain jurisdictions, has reversed this trend and caused a balkanization of American marriage laws. The availability of same-sex marriage, and the increasing incidence of same-sex couples seeking legal redress attendant upon or for the dissolution of, their relationships, in light of DOMA, has ripened the issue of recognition between jurisdictions.

In addition to the problem of recognition of same-sex marriages that are clearly valid where performed, in some jurisdictions, same-sex unions had been approved but their validity was later voided, has become subject to further determination, or the relationship has been sanctioned in contexts or statuses other than marriage. The recent grant of marriage to over 4000 same-sex couples in the County of San Francisco was declared void by the State Supreme Court (Woo et al. v. Lockyear et. al, Cal. S.Ct. August 12, 2004). The court, however, did not rule on the constitutionality of California's ban on marriages between persons of the same sex, which is challenged in a separate suit pending in the lower courts there. Those licenses granted this spring in Multnomah County, OR, have been declared not illegal, while the issuance of marriage licenses to same-sex couples in Sandoval County, NM, and the city of Asbury Park, NJ, was stopped, but the validity of those granted remains subject to further legal determination. The licenses granted this spring in New Paltz, NY, were recently upheld by a New York State Supreme Court Judge, who refused to invalidate them and declined to enter an injunction preventing further licenses from issuing.

Moreover, legally obtained marriage licenses or licenses granting legal status short of, or in lieu of, marriage may be subject to the same recognition problems in other jurisdictions. For example, Vermont grants civil unions to same-sex couples, but the statute specifically provides that it is not “marriage” and dissolution is subject to residency in Vermont, according to Vermont law. Civil Unions granted under Vermont law are neither expressly recognized — nor expressly prohibited – by any state in the U.S. This is generally true of same-sex (and in some instances, opposite sex) civil unions obtained by residents of many western European nations, including Denmark, France, Iceland, Sweden and Switzerland.

The validity or legal significance of these relationships under the laws of an American state is untested and questionable and thus, presumably, left to the courts. Such a test is precisely what occurred in 2002 when a West Virginia court granted a dissolution of a resident couple's Vermont civil union, holding that the “parties are citizens of West Virginia in need of a judicial remedy to dissolve a legal relationship created by the laws of another state.” In re the Marriage of Misty Gorman and Sherry Gump, No. 02-D-292 (W.Va. Fam. Ct., Marion County Jan. 3, 2003). Similarly, last year a Texas court granted a dissolution of a resident couple's Vermont Civil Union, only to be ordered to rescind the decision by the Texas Attorney General, who declared it illegal. The parties ultimately withdrew their petition for divorce. (Russell Smith and John Anthony; AP, April 2, 2003.) In December 2003, a judge in Iowa “mistakenly” signed a judgment granting the request of two women to terminate a civil union they had obtained in Vermont. When told that he had done so in error, the judge refused to rescind his decision and cited the Full Faith and Credit Clause of the U.S. Constitution, asserting that it required him to recognize the laws of other states, and that in any case, he was merely resolving a matter between two residents of Iowa, as courts have routinely done. The matter is presently pending in the state courts. Alons vs. District Court for Woodbury County (Iowa, Woodbury County No. CDCD119660, 1994; In the Matter of Kimberly Brown and Jennifer Perez, (Iowa Dist. Ct., Woodbury County, Nov. 14, 2003). These cases follow a 2002 decision in the Connecticut courts, upheld by that state's supreme court, that the state had no jurisdiction to dissolve a Vermont Civil Union. Rosengarten v. Downes , 802 A.2d 170, cert. granted, 806 A.2d 1066 (2002),appeal dismissed (Dec. 31, 2002).

California enacted a sweeping domestic partnership law to take effect Jan. 1, 2005. Although it distinguishes the rights of the same-sex union from those of marriage, it provides the couples with most, if not all, of the rights and remedies available to divorcing couples under California law, including, but not limited to, the provisions of community property rights. A.B.205 (Calif., 2003). Challenges to the constitutionality of the law were recently dismissed. Senator Night, et al., v Gov. Schwarzenegger, et. al, No. 03AS05284 and 03AS07035 (consol)(Sep. 10, 2004). New Jersey's recently enacted comprehensive domestic partnership law also distinguishes its provisions from those that apply to marriage. However, it contains extensive provisions detailing the rights and interests of the partnership and limiting the benefits available upon dissolution. There are also hundreds of other statutes now in effect across the United States, mostly municipal or countywide, which grant a variety of rights and interests to couples of the same sex.

Finally, the problems of recognition are further underscored by the nature of dissolution. As divorce practitioners are all too well aware, the breakdown of a marriage is often formalized or triggered by a particular event, or moment, and the relief sought or required can be immediate or temporary. However, the process of obtaining a divorce, can typically take anywhere from a few months to a few years, depending upon the questions at issue between the parties and the need to value property or resolve custody questions. Temporary relief is a critical element of the divorce process which, if the state refuses to recognize the relationship in the first place, could well result in difficult and significant problems to a couple who would otherwise be able to avail themselves of the courts in their dissolution.

Considerations Separate From, or Not Based Upon, Marital Status

Lawyers should understand and anticipate that same-sex couples — or complaining parties within a same-sex couple — have rights that are independent of any claim of marital status. Those rights or interests may be enhanced, or complicated — or both — by their marital status, or their ability to marry within a given jurisdiction. The claim could be one a practitioner might pursue on behalf of a client irrespective of, as a consequence or because of, or in addition to, a claim based upon a valid same-sex marriage from another jurisdiction. The claim is a function of the state law of the resident claimant's state, and the question is whether that state has such additional, or other legal protections, eg, domestic partnership protections. Certain provisions of Illinois divorce law, for example, are available irrespective of marital status (chiefly custody and rights relating to legally adopted children). Children born to domestic partners under California's new law, effective January 1, 2005, will be presumed to be children of both parties, irrespective of their progeny. Other rights and remedies independent of marital status can be found elsewhere in the divorce statutes of many states. The ability to marry — whether at home or in another jurisdiction — and its effect on these rights is unclear. If the marriage is subject to a declaration of invalidity, the court may be less inclined to resolve competing claims arising elsewhere in the law. Consequently, clients would be well advised not to rely on marital status — given the increasing conflicts from state to state — to presume legal parentage of children not born of a validly recognized marriage. Particularly with regard to children, they should utilize all available remedies to formalize their parental rights and claims.

Conclusion

The lawyer faced with helping a client who is a partner in a same-sex relationship navigate the increasingly complicated and confusing marriage laws from state to state is best advised to understand these conflicting interests in general, and in particular, to understand the specific provisions of the state's marriage statutes.

The attorney should know whether or not the state expressly prohibits marriage between two persons of the same gender and whether the divorce statute itself is gender specific, inherently dependent upon relevant definitions that may be contained in the marriage statutes, or both. Furthermore, the attorney must know whether there are prohibitions against residents of the state traveling elsewhere to obtain such marriages and, finally, whether there are public policy considerations in the state's statutes that speak to same-sex marriage. In addition, it would be helpful to be familiar with the state's historical treatment of foreign marriages, as well as the state's constitutional provisions regarding equal protection of its laws, and the legal record of its treatment of unmarried couples generally, and same-sex couples in particular. There is no reliable guide to advise the client. Given the increasing conflict between the legalization of same-sex marriages, the historical recognition by states of foreign marriages, and the growing use of legal devices to create exceptions to the recognition of same-sex marriages, it seems clear that any reliable guidance will have to come from the courts. In the meantime, lawyers should obtain for their clients whatever statutory protections are available to secure or safeguard particular interests, and do so with as much foresight as possible in the event of further legalization of the status of same-sex unions.

Editor's Note: For daily updates on litigation and legislation in the same-sex marriage arena, go to www.ljnonline.com, and access the Same-Sex Marriage interactive map.