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Anti-Marriage Laws Create Legal Swamp
by Gabriel Rotello
© 1996, Gabriel Rotello


The dreaded long distance call comes in the middle of the night. Your spouse has had an accident and is in critical condition, and doctors are frantically searching for next of kin to give permission to operate. If they don’t find someone fast, it’ll be too late. You sputter into the phone yes, go ahead, perform the operation. But after a moment’s hesitation the doctor informs you that your permission is not valid. Why? Because even though you and your spouse have been legally married for many years, your marriage is not recognized in the state where the accident occurred, the state where your spouse lies dying. According to the laws of that state, you and your spouse are not married at all, and never were.

This may sound like something out of the Twilight Zone, but such scenarios may soon be commonplace. The reason is that the U.S. is on the verge of becoming a nation in which couples of the same sex can marry and have their marriages legally recognized in some states but not others. Hawaii’s supreme court is widely expected to legalize same-sex marriages soon, and as of this week twenty-one states have introduced laws designed to deny recognition to what may soon be called “Hawaiian marriages.” So far, three have rejected such laws, but three have passed them. Leading to the likelihood that once same-sex marriage is legalized in Hawaii and lesbians and gay men flock there to get married, their marriages will be considered legal in some parts of the nation but not others. A couple driving cross country might discover they were alternately married and unmarried almost every time they crossed a state line.

Practically everything about Hawaii’s upcoming action has such potentially astounding implications, but unfortunately very few people are thinking those implications through. Polls show that most folks have a set opinion on the matter, with about two thirds of Americans opposed to same-sex marriage and one third in favor. But even a cursory glance at the questions raised by the issue show that it resists simplistic “for” or “against” opinions.

I’m strongly in favor of same-sex marriage, but let’s say for the sake of argument that you’re not. That’s certainly your right, but let’s take it a step further. What do you think should be done in the example above, where someone needs to make a life or death medical decision for their spouse in a state that doesn’t recognize their legally contracted marriage? Should the accident victim be allowed to die if no other next of kin can be found?

Or what about financial laws? If a bank makes a loan to my spouse based on my spousal guarantee, what happens if we move to a state that doesn’t recognize our marriage? Can that state enforce the guarantee, or can my spouse default on the loan and keep the cash?

Or what about inheritance laws? If I live in a state that recognizes my same-sex marriage, but I own property in a state that does not, and I die without a will, should my spouse be denied that inheritance?

Or corporate law? If the corporation I work for grants me spousal benefits and then transfers me to a state that does not recognize my marriage, does it take away the benefits?

And what about criminal law? Can I be compelled to testify against my spouse in a criminal trial in a state that does not recognize our marriage?

Questions like these are just the tip of the legal iceberg posed by those who would deny recognition of Hawaiian marriages. It was precisely to avoid such complications that the framers inserted the Full Faith and Credit clause into the Constitution, which mandates that any contract (including marriage) that is legally entered into in any state must be fully recognized in all other states. It’s one of the basic principles that glues the nation together. If Hawaii legalizes same-sex marriage and lots of states vote not to recognize those marriages, what about that?

As you can see, it is not simply a moral question of whether you’re for or against same-sex marriage, legitimate though that question may be. The fact is that same-sex marriage is coming, thanks to the enlightened jurists in Hawaii.

So the far more pertinent question is how to address the thousand and one significant legal and ethical issues sure to arise in every state the moment Hawaii acts. Right-wingers have so far framed this as a moral debate in which so-called “family values” are deployed to forbid lesbians and gay men like me from forming stable families.

But while I’m as interested as the next person in high minded moral debates, I also want a few practical answers from legislators who are passing laws that will forbid recognition of my marriage. Such as, if I ever get that call in the middle of the night, will my spouse have to die to satisfy somebody’s definition of family?


Article © 1996, Gabriel Rotello — Reprinted by permission.
It first appeared in Newsday, March 13, 1996
Mr. Rotello may be contacted at Gabo3@aol.com


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