Editor’s note: On Tuesday, the U.S. 9th Circuit Court of Appeals upheld a ruling that California’s voter-approved ban on same-sex marriage, Proposition 8, was unconstitutional. Backers of the proposition vowed to appeal. In this December 2008 interview, law professor Jennifer Drobac outlines why lawsuits over Prop 8’s constitutionality aren’t vital to the legal rights of same-sex couples.
November’s passage of California’s Proposition 8, which amends the state’s constitution to outlaw same-sex marriage and which the state Supreme Court upheld today, is the latest flashpoint in the culture war over gay civil rights, the subject of fierce commentary and multiple lawsuits.
Indiana University School of Law-Indianapolis professor Jennifer Drobac is concerned about an issue that’s getting scant attention in the debate: How do states treat gay couples that are already married? And what happens when they move to a state where their marriage is outlawed? Miller-McCune.com spoke with Drobac about these legal issues, and her ideas for a domestic partnership system that might address them.
Miller-McCune.com: You’ve said lawsuits over Prop 8’s constitutionality aren’t vital to the legal rights of same-sex couples. Which issues are worthy of attention?
Jennifer Drobac: The real question is: What does Prop 8 do to these marriages? They are valid in California and will remain so, unless there is a pronouncement or significant ruling otherwise. The problem, though, is going to be the same problem faced by same-sex couples who were married in Massachusetts, and now Connecticut. What happens when these people cross state borders?
M-M: So what does happen?
JD: Most states have either a DOMA (similar to the federal Defense of Marriage Act that defines marriage as between a man and a woman), a DOMA-like statute or a state constitutional DOMA amendment. What happens in those states is that the traditional rule of comity doesn’t apply. Comity is a doctrine of courtesy: If you got married in state A, even though state B wouldn’t have allowed you to get married because, say, you’re first cousins, state B will recognize the marriage as valid.
Whether or not courts would require states to recognize their sister states’ validly performed same-sex marriages, the answer has been: yes and no. But the issue has never gone to the U.S. Supreme Court. There are indications that the Supreme Court wouldn’t require states to recognize same-sex marriages. And yet there are precedents (suggesting that states would be forced to respect such unions).
Back in the 19th century, Indiana became this liberal divorce mill. It was very difficult to get divorces in New York, so people would travel by train to Indiana or Nevada, get a divorce, and go back home. States like New York challenged sister states that were undoing marriages.
The Supreme Court ultimately said: No, these were validly performed divorces and they have to be respected in New York. Will that happen with same-sex marriage? Nobody knows for sure. It hasn’t gotten that far yet, but it will as people start traveling from California and Massachusetts and Connecticut, having their marriage evaporate at the state border and having children turn into legal strangers. Ultimately, federal courts are going to have to decide these legal questions.
This is particularly true now that Connecticut has same-sex marriage. Connecticut has no residency requirement, so you can travel from Indiana and get married in Connecticut, then go back to Indiana. But as soon as you go back, your marriage will evaporate.
M-M: Does that matter in a couple’s day-to-day life?
JD: There are a lot of absurd scenarios. Say you get married in Massachusetts, have a child with artificial reproduction, travel to Indiana. Your children aren’t your children anymore, because you didn’t adopt them. Who has custody of these children? It's these issues of what's going to happen when established familiar legal bonds evaporate.
M-M: For now, though, these cases are still theoretical?
JD: There may already be cases, but I don’t know of any. I have heard, anecdotally, stories of people who’ve gone to Canada and gotten married. They come back and they know their marriage won’t be recognized, but they don’t challenge it — lawsuits take time and money and heartache.
It’ll be interesting in tough economic times, as people start losing their jobs and benefits, whether same-sex couples begin to litigate this issue. If you’re both employed, both get individual health insurance, what happens when one of the partners loses health insurance? If you’re married, your spouse can join your health insurance, but that’s not usually the case for same sex-couples.
M-M: Where else are such cases likely to show up?
JD: Divorce is going to be an issue. If Indiana doesn't recognize your marriage, chances are they’re not going to allow you to get a divorce here. Child custody is going to be an issue. In the event of a medical emergency, normally a spouse can give directions to the doctor whether to pull the plug. That won't be true (for same-sex couples) who move. Same for division of property upon death. There's going to be huge litigation by beneficiaries of these estates on where money and property go.
M-M: Are you surprised we haven’t already seen these cases?
JD: Not really. I think same-sex couples understood that their marriage might not be recognized beyond the states where they were performed, so they haven't really been militant about trying to enforce their rights.
It takes a while for cases to percolate through the system. Yes, you have had same-sex marriages since 2003 in Massachusetts. But how many people have left Massachusetts, and how many have the money to engage in this kind of litigation? And are they in a jurisdiction where they’d anticipate the court will be receptive to their claims? I know attorneys advising their clients not to sue because they’ll establish bad precedent. A lot of litigators are reluctant to take their cases to the Supreme Court right now, given how conservative it is.
But the protests and riots following the passage of Prop 8 and the movie Milk have galvanized an understanding by gay and lesbian couples that this is an issue they really need to mobilize on if they want change. You may see more assertive conduct on the part of these couples. When you have enough states offering same-sex marriage, people will begin to say, “Hey, I want those rights.”
M-M: Is there a way to reconcile the legal conflicts, short of waiting a few decades for the courts to decide?
JD: If DOMA were repealed, Congress (might try to) require states to respect marriages of same-sex couples. I’m not sure whether they can do that, and even if they can, they may not. Typically, family law is the exclusive province of the states. Federal courts will decline to rule on cases involving family law. Congress may be reluctant to step in and get involved.
M-M: To address these issues, you and Antony Page have proposed a system of "domestic partnership" to serve as a legal version of marriage — not just for same-sex couples, but traditional husband-and-wife pairs, as well as alternative families, like widows with children who want to cohabitate. How politically realistic is the concept?
JD: We ran this by a state legislator who’s a colleague on the Indiana faculty. He though it was a good idea, but he said it’d never fly here, because people are so loyal to the institution of marriage. People are intrigued by it but are very reluctant to disentangle civil marriage from church marriage — even though we have a separation of church and state, people conflate the two all the time. People didn’t understand that the California provision allowing same-sex marriage does not require churches to marry same-sex couples. Churches can continue to discriminate against whomever they want. In fact, some people who are strongly affiliated with religious institutions like our idea, because it leaves marriage under the exclusive control of religious institutions, but it also gives others the benefits of a civil partnership.
M-M: Yet it reconceives the notion of “family” quite radically.
JD: My co-author and I wanted to get away from a separate-but-equal system. It smacks of Jim Crow. Part of what we talk about in my class is defining what a family is. Historically it's been defined by blood, marriage, and adoption. Those are very strict, rigid definitions. Take an adult child and an elderly parent. Because those people aren't married, you can’t give one the other’s health insurance benefits; yet those people are taking care of each other. Or maybe for religious reasons you can’t get married (a second time). Or you might live in two different states because of the economy, where one member has to leave the home state to get work. Or you're a same-sex couple.
Our plan allows people to be recognized as a familial unit in ways that traditional law doesn’t. Presidents have lauded family as the backbone of American society. If you want to support families, let’s support all families. We’re facing a lot of challenges as a nation. I think being divided over this issue of marriage weakens us as a nation. Any way we can shore ourselves up, I think we should do it.