The Realities of Same-Sex Divorce

By Joseph James Gianetti

On March 26 and 27, the Supreme Court heard oral argument in United States v. Windsor — the case which addresses the constitutionality of Defense of Marriage Act. The question is whether Section 3 of the Act, which defines the term “marriage” as “a legal union between one man and one woman as husband and wife,” deprives same–sex couples who are lawfully married under the laws of their states (such as New York) of equal protection, as guaranteed by the Fifth Amendment.

In 2007, Edith Windsor, a New Yorker, married her same–sex partner of over 40 years, Thea Spyer, in Canada. Dr. Spyer died two years after the marriage and left her entire estate to her wife along with a hefty federal estate tax bill of $363,000 — a tax that Ms. Windsor would have avoided had she been married to a man.

And then there are problems for gay people on the other end of the marriage spectrum. New York Magazine recently published an article that addresses same-sex couples who are unprepared for the legalities involved in divorce.

LASIS further develops the consequences of both the marriage and divorce issues that lie ahead for same sex–couples.

Consider this: Boy from Alabama meets Boy from Florida (two states whose constitutions ban same–sex marriage) while vacationing in the Big Apple. The two fall madly in love and decide to get married right then and there. Is this even possible in light of the fact that both of them live out–of–state and are merely passing through New York? Yes! While New York may have been the sixth state to approve gay marriage, it was the first not to include any residency requirements for marriage. This means that any same–sex couple may travel to New York State and enter into a legally binding marriage. But this boy meets boy story isn’t over just quite yet…

After the vacation is over, boy and boy head back to their respective states, pack up all of their belongings and head for Texas (another state whose constitution bans same–sex marriage) to start their new life together. All is well during the honeymoon phase, but before long the boys realize that they rushed into their marriage, made a terrible mistake, and all things being equal, want a divorce. They rush down to the courthouse only to find that the doors are closed… Texas doesn’t recognize same–sex marriages and will not grant them a divorce.

The couple then hurries to the airport and hops on the next flight to New York.

Surely the state that married them will divorce them, right?





That Ain’t Hypocrisy, That’s the Law

By LASIS Staff

Yesterday, Chief Justice Roberts said the following  about President Obama’s continuing to enforce the Defense of Marriage Act — even after he’d repudiated it:

“If he has made a determination that executing the law by enforcing its terms is unconstitutional, I don’t see why he doesn’t have the courage of his convictions” and refuse to enforce it.

Newt Gingrich leveled the same accusation (in a more volatile, Gingrichian style) back in March, 2011, and LASIS explained why Mr. Gingrich was wrong.

So read this, Mr. Chief Justice, and you will see why you’re mistaken, too.


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Obama’s DOMA Decision on Solid Legal Footing

By Trevor Timm

On February 24, in a major victory for gay rights activists, the Obama Administration reversed its two-year policy of defending the Defense of Marriage Act in court despite the President’s insistence he did not agree with the law. The Justice Department announced that it would no longer defend the act against lawsuits because it believes that “much of the legal landscape has changed in the 15 years since Congress passed” the law and it conveys the “stereotype-based thinking and animus the (Constitution’s) Equal Protection Clause is designed to guard against.”

While criticism from the Republican House leadership has been relatively muted, potential Republican presidential candidates have loudly denounced the decision.

Social conservative and rumored Presidential candidate Mike Huckabee was the first to jump on the supposed reversal, saying it was an “inexplicable political error.”

“I think he owes the people of America an explanation,” Mr. Huckabee said. “Was he being disingenuous and dishonest then [when he said he would defend the statute in court], is he being dishonest now, or did he change his view and if he did, when and why?”

Other presidential hopefuls charged that the President had reversed his policy, politicized a legal issue, and perhaps committed an “impeachable offense” by declining to defend the law in court.

But was this, in fact, a reversal of policy? How “political” was it? And is the decision in violation of the Constitution? (more…)


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