Four Reasons Not to Get Married in California

It is a heady time in California for lesbians, gay men, and bisexuals both from California and from the rest of America. A landmark decision by the California Supreme Court that legalized same-sex marriages went into affect June 16 at 5:01 pm. Before same-sex couples head to the wedding altar, they should consider these four reasons not to get married, at least not right now.

1. Such marriages might be annulled in just over four months. California voters might repeal marriages between people of the same sex on November 4th. There is a referendum on the ballot this general election in California to amend that state's constitution to define marriage as between one man and one woman. In a prior post, I explained why I think that this amendment won't pass, but it is possible that it will pass. If it does, it will probably void marriages between people of the same sex celebrated in California.

2. Most states will not recognize such marriages. Many states won't recognize a marriage between people of the same-sex. Forty-four states have either a law or a constitutional amendment (or both) that deny recognition to same-sex marriages from other jurisdictions. If you are a resident of California or Massachusetts, then your home state will recognize your marriage to a person of the same sex. For now at least, the same is true for New York, but that could change if an appellate court decision in a case called Martinez v. County of Monroe is overturned by the New York Court of Appeals. That is possible, but also not likely. (For a discussion of why, see my prior post.) If, however, you live in one of the forty-four states (including, for example, Pennsylvania, Ohio, Texas, Virginia, and Florida) that have laws and/or constitutional provisions that specifically deny recognition to same-sex marriages, your marriage will probably get little or no recognition or respect in your home state, which is what matters in terms of the various legal rights and benefits associated with marriage. If you live in a state that doesn't have such a law but also hasn't recognized same-sex marriage (such as New Mexico, Rhode Island, or Vermont), then the status of your marriage in your home state is at present uncertain. (For a map showing which states have such laws or amendments, see this. (PDF)

3. It might be difficult to get divorced if you don't live in California. Like it or not, about fifty percent of first time marriages end in divorce. A same-sex couple who gets married in California cannot, if they are residents of another state, go back to California to get a divorce. Most states are happy to have non-residents come there to get married, pay a fee for a marriage license, stay in their hotels, pay their caterers, and the like. But the situation is different with divorce. States require that one of the parties to a marriage be a resident in order for their courts to hear or grant a divorce. If a same-sex couple lives in a state that does not recognize marriage between people of the same sex, they may find that they cannot get divorced, not unless they take the extreme and perhaps expensive measure of establishing residence in another state that will recognize their relationship, at least for purposes of dissolving it. Some same-sex couples who have married in Massachusetts (or obtained a civil union in Vermont) and then want to end their relationship when they are residents of another state may find themselves without access to a court willing or able to issue them a divorce. It is a big legal mess, a kind of hellish legal purgatory, to be trapped in a marriage that you want to get out of but can't.

4. Such marriages won't qualify for any federal benefits. Many of the important legal rights, benefits, and duties of marriage flow from federal law, including those related to federal taxes, immigration and naturalization, social security, ERISA, and bankruptcy, to name just a few. Thanks to a federal law passed in 1996, known as the Defense of Marriage Act, same-sex marriages are simply not recognized under federal law.

There remain reasons -- including important personal and symbolic reasons -- to get married in California. But it is a mistake to embrace these reasons without thinking carefully about the serious legal and financial implications of getting married. Everyone has the right to marry. The Supreme Courts in California and Massachusetts have taken the bold step of saying that the right to marry includes the right to marry a person of the same sex. But just because you have the right to marry doesn't mean that you should exercise that right, at least not in California at this moment.

Addendum:
Although I didn't say so in the above posting, I am a strong advocate of the right of same-sex couples to marry. Getting married to someone you love can be one of the most profound and moving acts of one's life. This is just one of many powerful reasons to get married. For LGBT people, marriage at this moment in time is even more socially and politically potent. The wedding stories of LGBT couples in California deeply move me. They are dramatic, beautiful, and important.

I celebrate the recent decision of the California Supreme Court. It is a landmark decision that all Americans who believe in equality and justice should applaud and embrace. My aim here is to caution people not to rush to the altar (or city hall) without thinking about the legal implications. By focusing on what marriage symbolizes, we may overlook or underplay the actual effects of getting married. Given the messy patchwork of recognition and non-recognition for same-sex relationships that currently exists in the United States, getting married in California, especially for non-Californians, is a serious decision with an assortment of complicated legal consequences.

Comments

[rwood5628]

Several observations:
1. Initiative passage will not likely "annul" prior legal marriages;
2. Still an open question whether "full faith and credit provision" of the federal Constitution would not require recognition of marriages legally entered in other States. Betting is that this will eventually require recognition in States where such marriages would be unlawful. There is much authority that would have to be overturned for the Supreme Court to allow States to abrogate marriages legally entered in other States;
3. Your position regarding difficulty in getting a divorce in States in which gay marriages are not recognized is also ill-taken. If "full faith and credit" provision of federal Constitution applies, other States may not have authority to deny divorce for marriages legally entered;
4. Comments re federal benefits also may not be accurate. DOMA is a federal statute which may do nothing to abrogate federal constitutional provision requiring recognition of State laws within their specific sphere which has always included marriage. I agree that this Supreme Court may not see it that way, but it must be remembered that it was Justice Kennedy who authored the Lawrence decision and the other four justices who supported that decision are generally liberal on issues like this. Even if federal benefits are ultimately not granted, time is on our side. In another decade, DOMA may no longer be around.

[LarryMcD]

Bravo. Thank you.

[Infostream]

the salient arguments here are against getting married at all - gay or straight. personally i think marriage is a failed obsolete institution that only profits wedding planners and divorce lawyers. i would hope some gay people would take on their role as trailblazers rather than meekly trying to be the str8 version of "normal". However, one point you miss is that many of the gay couples being married have already been together many years, so they probably have a much better chance of making it last than most young urban str8 couples.

[queotic]

It doesn't matter if you like marriage or not - it's about having the right to do so. Gay people do not have that option and THAT is the very antithesis of "All men are created equal."

[Infostream]

of course, but i really think things would go better if it was framed as "do you believe all american taxpayers/citizens should be afforded the same rights by the government" it becomes much harder to equal deny rights when you don't pinpoint this one hot button issue. But really why should the government provide special services for married people, such as keeping track of who gets to visit you if you're in a coma, but not single people? It's still not equal treatment, it's just now the discrimination is against all single people. Anyway my favorite question on the subject for bible-thumpers is "do you think it is fair that convicted murderers and rapists are allowed the right to marry without anyone suggesting it threatens the institution, buy gay people are not?"

[Jaidit]

1. They might be annulled. They might not. Just a few days ago, you predicted the amendment wouldn't pass.

2. I was married in Massachusetts. One state recognized my marriage. Now it's three. Or maybe more.

3. Yeah, it'd probably be difficult to divorce if you live in a state that doesn't recognize same-sex marriages. "You might have to divorce" isn't really a reason not to get married.

4. No Federal benefits. And no one ever marries, there never will be any.

Sorry, Ed, but I'm not telling my friends to give in to the homophobes.

Marry the one you love. It's your right. Now let's all dance at the weddings.

[seatea1967]

Wow... thanks for the update Eeyore.

"Feline AIDS is the number one killer of domestic cats." - Debbie Downer

[astutefish]

Kinda reads like Dana Carvey channeling Pappy Bush "Wouldn't be prudent" like.