"Legal Confusion Over Gay Marriage: Who Is, and Who Isn't, Wed Is Subject of Great Debate" is the title of this analysis piece today in the Washington Post. Some quotes:
[B]y the late 1960s, the U.S. Supreme Court had struck down bans on interracial marriage and required states to recognize divorce decrees across state lines. Evan Wolfson, a lawyer and leading advocate of marriage rights for same-sex couples, said that this is simple pragmatism.This story from last Sunday's NY Times is headlined "With Albany Mum on Same-Sex Marriage, New York Gay Advocates Look to Courts." Some quotes:"You don't want couples to wonder whether they're married or not as they cross a border," he said. "We don't want kids to wonder whether their parents are still married when they go on vacation. And we don't want businesses and banks to wonder whether their contracts are still good depending on whether customers have crossed a border."
It is his belief -- and that of many of those who oppose same-sex marriage -- that, given time, the same thing would happen with same-sex marriage, if only because it is more convenient. States continue to differ over the opposite-sex marriages they will perform. Some states require parental consent to a later age than others. Some states permit cousins to marry. But states find it is simply easier to honor marriages from other jurisdictions, even if they would not have licensed them. * * *
Already it is clear that some jurisdictions and some companies will recognize these unions, and each time this happens, the marriage gains a bit more legal weight. Marriage can become an element of a mortgage contract or tax return or insurance policy or will, for example. The more a marriage is recognized in these ways, the harder it is to undo neatly -- which is one reason getting divorced is more complicated than getting married.
Lawyers and government agents nationwide are waking up to the many facets of the legal issue. "Fascinating," said Mark Niles, a professor of administrative law at American University's Washington College of Law. "Think about how many times during a week or a year your marriage is relevant. There's tax returns. Insurance." * * *
"This will take time" to sort out, Wolfson said. "Some states are moving toward equality while others will resist." For now, marriage is "a patchwork. . . . There are at least 5,000 married same-sex couples in the United States today. Others are soon to come. This has already happened."
Advocates and lawyers said they were waiting for cases to emerge that may force the courts to address the constitutionality of New York's domestic-relations law, which has historically been interpreted to accept only marriages by those of the opposite sex.This lengthy story from last Sunday's LA Times focuses on the legal strategies being followed by opponents and proponents. A quote:At the same time, they are also looking for cases to better establish the rights of partners in same-sex relationships - primarily by testing the state's recognition of same-sex marriages performed out of state.
As such, advocates and legal experts say, they expect the issue of same-sex marriage to play out in New York in much the same way it has in Massachusetts, before panels of judges.
"I think that what will happen, more quickly than the Legislature acting is that people will return from other jurisdictions and seek to have some level of governmental recognition, based on being married elsewhere, and that that will precipitate a court review,'' said Assemblywoman Deborah J. Glick, a Democrat from Manhattan who is the Legislature's only openly lesbian lawmaker.
Opponents of gay marriage have tried to keep the legal debate to a simple argument: State law does not allow same-sex weddings, and San Francisco has no right to bypass that law. They want an immediate court order blocking more marriages, but judges have put off a hearing on the issue until March 29.This legal analysis, "The New Jersey Domestic Partnership Law: Its Formal Recognition of Same-Sex Couples, and How It Differs From Other States' Approaches," by Joanna Grossman, appeared in Findlaw.com last month. It has a very good section comparing and contrasting different states' approaches to recognizing same sex unions, which is introduced with this question:"Here is my frustration," said Benjamin W. Bull, chief counsel of the Alliance Defense Fund, which defends traditional religious rights. "Clearly the city's strategy is to have tens of thousands of these same-gender licenses issued so, by the time a court rules on this, it may be more of a nightmare to revoke the licenses than it will be to validate them…. Wittingly or unwittingly, the Superior Court is playing into the city's hands."
Bull said his side planned to take depositions of psychologists, sociologists and family counselors "saying that children are better off in opposite-sex relationships."
Gay rights advocates hope to get judges to focus on a different issue — whether laws, including Proposition 22, forbidding same-sex marriages violate the California Constitution's ban on discrimination. Each of the five test couples was chosen to illuminate a different aspect of that argument.
Where does the New Jersey law fall on the spectrum among the five states that have so far formally recognized same-sex couples--Massachusetts, Vermont, California, Hawaii, and, now, New Jersey? In my view, New Jersey is roughly in the middle, when one looks to the wide or narrow scope of the various state laws.[Update 2/28/04] Several related Grossman articles are available here via Findlaw.com: