Friday, March 21, 2008

Gay Divorces in New York: Marriages By Default? :: EDGE Boston

Same-sex marriage has been making some news of late, so I thought I would jam them into this post.

The following came from The EDGE of Boston:

Gay Divorces in New York: Marriages By Default?

"The New York Daily News reported in an article published today that a New York State Supreme Court justice has ruled that the marriage performed in Canada for two women residing in New York must be recognized by New York state law."


Drager based her ruling on the observation that there are only two instances in which New York law refuses to recognize marriages performed outside the state.

In one instance, marriages performed elsewhere can be refused recognition in New York if state law specifically provides for such refusal.

In the other instance, the state of New York could refuse to recognize a marriage that would be "abhorrent to New York public policy."

Although state law bars the granting of marriage to same-sex couples within the state, it does not specifically say that same-sex marriages performed elsewhere cannot be honored in the state.

As for marriages deemed "abhorrent to New York public policy," Drager found that these constitute a very narrow and limited field: "so narrow that it has been applied only to marriages involving polygamy or incest," the ruling said.

Rutgers Law School provides a more scholarly approach to the subject with Same Sex Marriage: A Selective Bibliography.

The Boston Globe reported on a Vermont custody case under the headline, vt_high_court_upholds_ex_partners_visitation_rights/">Vt. high court upholds ex-partner's visitation rights.

A woman involved in a high-profile custody dispute welcomed a Vermont Supreme Court ruling yesterday upholding her visitation rights to a child her former lesbian partner had when they were together.

"I think it's absolutely wonderful," said Janet Miller-Jenkins, 43, of Fair Haven, Vt. "It's just affirming that she indeed has two parents."


Lisa Miller-Jenkins, a resident of Winchester, Va., has been fighting to bar custody to her former partner since the two split in 2003, three years after they had obtained a civil union in Vermont.

In April 2002, Lisa Miller-Jenkins gave birth to the girl, who was conceived through artificial insemination, and the three moved to Vermont.

About a year later, Lisa Miller-Jenkins renounced her homosexuality, returned to Virginia, and denied Janet Miller-Jenkins access to Isabella, who is now 5.

A lawyer for Lisa Miller-Jenkins argued that the full court's 2006 decision in the case was wrong because Virginia law prohibits civil unions and same-sex marriage, so Janet Miller-Jenkins has no legal standing as a parent.

But Vermont's high court disagreed, saying there was no basis to revisit challenges to the civil union. "Moreover plaintiff's argument that the interests of justice compel foregoing the doctrine in this instance because a young child is being forced into contact with a stranger is nothing short of disingenuous in light of the family court's unchallenged findings regarding the child's best interest and plaintiff's contemptuous conduct," the three justices said.

The New York Times published Gay Couples Say Civil Unions Aren’t Enough - which since the story concentrates on Connecticut, I find a bit of an overstatement. Still, the article has some interesting points.

But when Tracy was giving birth to their son, Jake, five months ago, a hospital employee inquired whether she was “married, single, divorced or widowed.”

“I’m in a civil union,” she replied. When the employee checked “single,” Tracy protested. “I’m actually more married than single,” she said, leaving the employee flustered about how to proceed.

That conundrum is at the core of a case on which the Connecticut Supreme Court is expected to rule soon. It presents a new constitutional challenge to the political compromise that several states have made in recent years to grant rights to gay and lesbian couples while preserving the traditional definition of marriage as between a man and woman. At the same time, the state legislature’s joint Judiciary Committee has scheduled a public hearing in Hartford on Monday to consider amending the civil union law in light of complaints from same-sex couples that the measure had not delivered the equal rights it had promised. The committee passed a bill that would have legalized same-sex marriage, 27-15, last year, but it was never put to a full vote of the legislature.


Connecticut created civil unions in 2005, promising same-sex couples all the “rights, protections and responsibilities” the state bestows upon married couples, rather than the patchwork some municipalities had stitched together. The law also included a clause, inserted at the insistence of Gov. M. Jodi Rell, a Republican, that defined marriage as the union of a man and a woman, joining at least 40 states with similar language in their laws.

But eight same-sex couples pressed ahead with a constitutional challenge, arguing that they were entitled to marry the person of their choice and that nothing less would do.

The case turns on whether same-sex couples should be treated as a “suspect class” — groups like minorities and women that have experienced discrimination — which could lead to heightened legal scrutiny of the decision to offer separate institutions. In oral arguments before a Supreme Court panel, the assistant attorney general said the number of “prominent politicians who are openly gay and lesbian” proves that homosexuals are not “politically powerless,” one of the requirements of a suspect class; that caused one justice to quip, “If it were true political power,” they would have already won the right to marry.

The state also argues that the plaintiffs have no case because they are free to marry, just not to someone of the same sex, and that there is no gender discrimination because men and women are equally constrained. In July 2006, the lower court judge, Patty Jenkins Pittman of New Haven Superior Court, backed the state, ruling that Connecticut’s Constitution “requires there be equal protection and due process of law, not that there be equivalent nomenclature.”

I have made the point before that cohabitation and thus civil unions ought to apply to opposite-sex as well as same-sex couples. We should also consider the drawbacks apply equally to opposite-sex and same-sex couples.

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