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Richard Komaiko

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Obama Same-Sex Marriage Stance Raises Questions About Right To Divorce

Posted: 05/09/2012 6:00 pm

President Obama threw his political weight behind the movement for gay marriage on Wednesday, telling ABC's Robin Roberts, "I've always been adamant that gay and lesbian Americans should be treated fairly and equally." Obama's support brings gay rights proponents one step closer to the dream of equality in marriage, but it also raises important questions about the legality of gay divorce.

At present, even if a same-sex couple has been married in a state that permits gay marriage, it is often legally impossible for that same couple to get a divorce. Take the case of New York native Karen Hartman, who in 2000 traveled with her girlfriend to Vermont to enter into a civil union. The ceremony happened at sunset, the brides wore white, and the future was full of promise. Afterward, the couple returned to New York, and four years later they decided to divorce. At the time, however, New York did not recognize same-sex marriages, and therefore the state was unwilling to dissolve their union. As Ms. Hartman put it in a New York Times article written last year, the two were "in a legal limbo that held us in our union by not recognizing it."

There are currently six states, plus Washington, D.C., that allow same-sex couples to marry: Massachusetts, Iowa, Connecticut, New Hampshire, Vermont, and New York. To date, roughly 150,000 same-sex couples report having gotten hitched. These are happy beginnings, but the lack of nationwide uniformity on the issue has created problems when it comes to endings. If a gay couple live in a state that allows gay marriage and decide to end their relationship, things are simple. They can do what any other set of unhappy marrieds would do and get a divorce, complete with all the legal and organizational assistance a divorce implies. If, however, they have since moved to a state where gay marriage is not allowed, they will find themselves at the mercy of circumstance. Some states, like Texas, flatly declare that they will not grant divorces to gay married couples. Texas has a firm policy against homosexual marriage, and their courts reason that to grant a gay divorce would be tantamount to recognizing the existence of a gay marriage in the first place. Other states, like Wyoming, have elected to grant gay divorces even if they do not allow gay marriages, reasoning that forbidding the one does not mean they cannot grant the other. This is the state of gay divorce in America today: a ruddy patchwork trap for the unaware.

Why, you might ask, do gay couples caught in this trap not simply return to the state where they were married to get a divorce? The reason has to do with residency requirements. Though the details differ place by place, the great majority of states require that at least one member of a couple live in the state for a specified period of time before being allowed to file for divorce. California requires a stay of six months. In Connecticut, it's a year. Even Nevada, land of the quickie divorce, has a waiting period of six weeks. The options for divorce-bound gay couples, then, are stark: move to a new state and wait until eligibility kicks in, or stay put and remain married to your ex.

The litigation surrounding gay divorce is still very unsettled, but a few courts in states like Indiana and Pennsylvania have suggested that, instead of granting divorces to gay couples who ask for them, courts should void gay marriages in their entirety, making it as if they never existed. This solution would, in theory, free both partners to remarry, but it comes front-loaded with its own set of problems. For one thing, getting a marriage declared void often means the parties won't have access to the helpful bells and whistles that come with divorce. In Indiana, for example, a declaration of voidness prevents a judge from dividing property, allocating custody, or providing other help that would be allowed were it an ordinary divorce. For another thing, there's no guarantee that declarations of voidness will be recognized outside the state where they're granted. Imagine going through all the trouble of getting a legal separation, moving to another state and discovering that, under the law there, you're still married. It's frustrating, it's expensive, and it's very awkward to explain on dates.

Outside the courts, enterprising legislatures in California and Washington, D.C. have stepped up and passed bills that allow same-sex couples married in those states to return and receive divorces, even if they do not meet the residency requirements. These laws are a step in the right direction, but in the end they're Band-Aids on a gunshot wound. Gay couples lucky enough to have been married in those locales have to suffer through the inconvenience of filing for divorce in a place they no longer live, and those married elsewhere have to navigate a dense legal thicket that only promises to get knottier and more complicated as time goes on.

This raises some very inflammatory questions. Should the right to divorce be considered a fundamental right guaranteed by the Constitution? Can same sex couples ever truly enjoy equal marriage rights if they don't enjoy equal divorce rights? And what does it say about the institution of marriage in 2012 that a marriage is considered incomplete unless it is accompanied by the right to divorce?

Dan Selcke, J.D., contributed research for this article.

Click through the slideshow below to read Twitter users' response to President Obama's endorsement of same-sex marriage:

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  • Mitt Romney

    "I believe marriage is a relationship between a man and a woman," Mitt Romney said.

  • Kyrsten Sinema

  • Daniel O'Donnell

  • Kirsten Gillibrand

  • Jeff Merkley

  • Elizabeth Warren

  • Michael Bloomberg

    "This is a major turning point in the history of American civil rights," said New York City mayor Michael Bloomberg. "No American president has ever supported a major expansion of civil rights that has not ultimately been adopted by the American people - and I have no doubt that this will be no exception. The march of freedom that has sustained our country since the Revolution of 1776 continues, and no matter what setbacks may occur in a given state, freedom will triumph over fear and equality will prevail over exclusion. Today's announcement is a testament to the President's convictions, and it builds on the courageous stands that so many Americans have taken over the years on behalf of equal rights for gay and lesbian Americans, stretching back to the Stonewall Inn in Greenwich Village."

  • Jerrold Nadler

    "I applaud President Obama for announcing his support for marriage equality today," said Rep. Jerrold Nadler (D-N.Y.) "For the first time in this nation's history, a sitting president has shown the courage and leadership to stand up for all American families by pledging to support the fundamental right of every person to marry the person they love, and to have that marriage fully respected. I commend President Obama for this brave and honest step. Those who seek to politicize civil rights for personal or political gain will certainly attack him, but the course toward marriage equality and justice is the correct and inevitable path."

  • Brad Lander

  • Fred Karger

    "I'm thrilled!" longshot GOP presidential candidate Fred Karger told HuffPost, referring to Obama's embrace of marriage equality. Karger is the first openly gay Republican or Democrat to run for president. "The Karger pressure has worked," he joked. "Particularly after the defeat in North Carolina, we welcome him to the full equality position."

  • Vince Gray

  • Martin O'Malley

  • Sen. Jeanne Shaheen

  • Barack Obama

  • Mark Udall

  • Senator Chris Coons

  • Rep.George Miller

  • Jim Himes

  • Nancy Pelosi

  • Nita Lowey

    "I have been blessed to have a long and happy marriage. I strongly believe all Americans deserve that same opportunity," said Rep. Nita Lowey (D-N.Y.)

  • Antonio Villaraigosa

  • Jackie Speier

  • Michael Steele

  • Dennis Kucinich

  • John Brunner

  • Cory Booker

  • Chris Gregoire

  • Fred Karger

  • Ted Strickland

  • Jared Polis

  • Reince Priebus

    "While President Obama has played politics on this issue, the Republican Party and our presumptive nominee Mitt Romney have been clear. We support maintaining marriage between one man and one woman and would oppose any attempts to change that," said RNC Chairman Reince Priebus.

  • Debbie Wasserman Schultz

  • Chellie Pingree

  • Christine C. Quinn

  • Mike Huckabee

    "Barack Obama just announced he supports same-sex marriage," Mike Huckabee wrote in a fundraising appeal to supporters. "Nancy Pelosi immediately jumped on the announcement and emailed Democrat activists nationwide promising to continue their fight. This is going to be a defining issue this election. Obama, Pelosi and the Democrats have been a complete failure on economic issues so now they are going to focus on issues that will rile up their base. Well, Mr. President it's going to rile up our folks also. Men and women who support traditional marriage."

  • Rep. Bill Taylor

  • Deval Patrick

  • Frank Lautenberg

    "President Obama's support for marriage equality marks an important moment for civil rights in America," said Senator Frank R. Lautenberg (D-NJ), who co-sponsored legislation that would repeal the Defense of Marriage Act (DOMA). "We simply can not treat same sex couples as second-class citizens in our country. Marriage equality is one of the most significant civil rights battles of our time and is critical to guaranteeing the equal protection under the law promised to every American in the Constitution. The President's support for marriage equality should inspire Congress, Governors and state legislatures to advance civil rights for all Americans."

  • Allen West

  • Ann McLane Kuster

  • Sen. Patrick Leahy

  • Peter Welch

    "This is an historic moment and I applaud the President for his decision and courage," Rep. Peter Welch (D-Vt.) said. "One of the greatest and most liberating human emotions is acceptance. And what the President did today was accept that the quality of love two people share is more important than their gender. The President's decision required him look within and engage his heart. It is truly wonderful and welcome news."

  • Senator Patty Murray

  • Steve Rothman

    "As an early and strong proponent of Marriage Equality, I am very happy that President Obama has made this announcement," said Rep. Steve Rothman (D-N.J.) "Marriage Equality is a matter of basic human rights and all of America's same-sex families are now closer to having their unions recognized by our government. This is an important step in our country's march toward achieving true justice and equality for all."

  • Chuck Schumer

  • JackieForNH

  • Howard Dean

    "President Obama's public support for marriage equality is an historic affirmation of the fundamental American value of equal rights for all," said Howard Dean. "Having signed the nation's first law allowing Civil Unions as Governor of Vermont, I'm also proud to see our president affirm the belief that I and so many other Americans hold: loving and committed couples should have the same benefits that are extended through marriage. Marriage equality is a right and a benefit to all families."

  • Mike Quigley

  • Senator Ben Cardin

  • Sen. Barbara Boxer

  • Senator Dick Durbin


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