Subject: *M*: Rotello marriage column
From: [email-masked]
Date: Thu, 14 Mar 1996 11:03:39 -0500

NEWSDAY - WEDNESDAY, MARCH 13, 1996

ANTI-MARRIAGE LAWS CREATE LEGAL SWAMP
by Gabriel Rotello

        New York - The dreaded long distance call comes in the middle of the ni
ght.
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 scenar
ios
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 potentia
lly
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 tho
se
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 o
ne
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 deb
ates,
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?