Monday, September 12, 2011

The right to remain married: the problem with state "mini-DOMAs"

The excellent online symposium on marriage equality at Scotusblog continues, with this excellent reflection from Steven Sanders(U Michigan) about the consequences of individual state laws forbidding same sex marriage, which he calls "mini DOMAs". My legal marriage disappears and reappears as I cross the country, like a flickering Romulan cloaking device! Worth reading the whole thing, but here is a highlight:
States recognize each other’s marriages as a voluntary matter of comity, because the law generally values stability in legal relationships and protection of justified expectations. Mini-DOMAs carve out an immense categorical exception to this rule for gays and lesbians.

As a result, property rights are potentially altered, spouses disinherited, offspring put at risk, and financial, medical, and personal plans thrown into turmoil. Should the couple choose to exit the relationship someday, they may not have access to legal divorce. And these are just the practical consequences, to say nothing of the affronts to dignity and equality. .....

This is, objectively, madness.

....First, a state that voids an existing marriage through a mini-DOMA defies any notion of procedural due process. (A state cannot terminate your parental rights over your child without a hearing and evidence, but mini-DOMA states think they can terminate your marriage with neither.) ....

Today’s state of affairs for same-sex marriages is oddly similar to what the Court confronted almost seventy years ago with divorce. In Williams v. North Carolina, it held that once a divorce is effective in one state, it must get full faith and credit in every other state. In doing so, the Court overturned an older decision that involved a man who had been validly divorced in one state but was still legally married in another – essentially the same absurd situation same-sex couples face today. T...

...[A]s we debate strategy and consequences, we should also remember that, as Justice Jackson once observed, “If there is one thing that people are entitled to expect from their lawmakers, it is rules of law that will enable individuals to tell whether they are married and, if so, to whom.”

1 comment:

JCF said...

like a flickering Romulan cloaking device!

Geek Alert! ;-)

But SRSLY, agree w/ the article. {{{IT & BP, and ALL same-sex spouses}}}