Courant.com
Marriages, Civil
Unions Collide In Court
HILLEL Y. LEVIN, from
the Web, January 15, 2008
A pending decision by the Connecticut
Supreme Court will determine whether Connecticut must recognize same-sex
marriage. California's highest court will address the same issue later in
the year. Although these cases look similar to other lawsuits around the
country, they could mark the beginning of a much more complicated stage in the
shaping of laws concerning same-sex couples.
The first stage of legal developments concerning same-sex marriage is
essentially over. The central question so far has been how any given state
would define marriage. Four distinct approaches have emerged. One state,
Massachusetts, recognizes same-sex marriage. Several others have created new
legal regimes for same-sex couples (like civil unions in Connecticut and
domestic partnerships in California) that are very much like marriage. A
third group has extended only a few of the rights and responsibilities of
marriage to same-sex couples. Finally, many more states have rejected
legal recognition for same-sex couples.
But what happens when these different laws collide, for example, when a same-sex
couple that married in Massachusetts moves to a state that only recognizes civil
unions? Does their legal relationship dissolve at the border? What
about custody of children? Inheritance? Divorce? The legal
term for these questions is "conflicts of law." Such conflicts will
dominate future legal arguments about same-sex marriage.
The Connecticut and California cases are among the first to raise conflicts
issues. The courts in these states are now considering whether the
marriage-like alternatives offered to same-sex couples meet constitutional
guarantees of equality. The lower courts have concluded that civil unions
and domestic partnerships are identical to marriage in all ways except for name,
and so they are equal under the law. As a Connecticut judge put it, "civil
union and marriage in Connecticut now share the same benefits, protections and
responsibilities under law." California's intermediate court agreed.
But that's not quite right. Indeed, it is quite wrong, because these
courts failed to identify and address the latent conflicts issues. Taking
conflicts into account, civil unions and domestic partnerships are not equal to
marriage.
When a "traditional" (i.e. opposite-sex) married couple moves from Massachusetts
to Connecticut, Connecticut automatically recognizes the marriage. But if
a married same-sex couple tries to do the same, Connecticut will not recognize
the marriage, and will not even treat the couple as having entered into a civil
union.
This might do nothing more than impose a bureaucratic headache on the couple,
requiring them to fill out the paperwork necessary to enter into a civil union.
But it could also be disastrous. If one spouse falls ill and must be
hospitalized before they fill out the paperwork, then the other spouse
apparently would not be empowered to make end-of-life decisions.
Similarly, if one spouse dies, custody of any children would be in doubt, as
would inheritance issues. This result makes no sense given that the
Connecticut legislature has chosen to allow, and even encourage, same-sex
couples to enter into committed legal relationships.
It really does matter, then, whether you call it marriage or something else.
If they are committed to equality, the Connecticut and California courts should
reject the conclusions of the lower courts and rule in one of two ways.
First, they could declare that legal equality can only be achieved by doing away
with civil unions and allowing same-sex couples to get married.
Alternatively, they could hold that a married same-sex couple that moves from
Massachusetts must automatically be considered to have entered into a civil
union or domestic partnership. Either approach would put marriage and the
alternative institutions on essentially equal legal footing.
Such questions have begun to show up in courts around the country, including in
Rhode Island, New York and Virginia, but judges have ducked them. For
example, the Rhode Island Supreme Court ruled that a same-sex couple married in
Massachusetts could not obtain a divorce in Rhode Island, where they resided,
but did so without engaging in any conflicts analysis.
The Connecticut and California courts could avoid the conflicts questions raised
by the pending cases by declaring them unripe or ignoring them. But by
addressing the questions head-on, these courts could set the course for future
development of the law and simultaneously help thousands of committed couples
throughout the country begin to understand their legal status.
Hillel Y. Levin is a Stanford Law Fellow and instructor at
Stanford Law School. He is a graduate of Yale Law School and was an
associate at Robinson & Cole in Hartford from 2004 to 2006.
|
