Our guest blogger is Tobias Barrington Wolff, a Professor of Law at the University of Pennsylvania Law School and Visiting Professor at NYU School of Law. He served as Chair of the National LGBT Policy Committee for the 2008 Presidential Campaign of Barack Obama.
The AP has a report today that highlights one of the dilemmas that same-sex couples face from discrimination under state and federal law. The story concerns Angelique Naylor and Sabina Daly, a Texas couple who married in Massachusetts in 2004, returned to Texas, and are now being forced to struggle with state officials in order to secure a divorce:
After the joy of a wedding and the adoption of a baby came arguments that couldn’t be resolved, leading Angelique Naylor to file for divorce. That left her fighting both the woman she married in Massachusetts and the state of Texas, which says a union granted in a state where same-sex marriage is legal can’t be dissolved with a divorce in a state where it’s not.
A judge in Austin granted the divorce, but Texas Attorney General Greg Abbott is appealing the decision. He also is appealing a divorce granted to a gay couple in Dallas, saying protecting the “traditional definition of marriage” means doing the same for divorce.
A state appeals court is scheduled to hear arguments in the Dallas case on Wednesday.
There are now six jurisdictions in the United States where gay people have equal access to civil marriage: Massachusetts, Connecticut, New Hampshire, Vermont, Iowa, and the District of Columbia. When committed same-sex couples from other states want to marry, some of them travel to states like Massachusetts, perform the ceremony, and then return home, as Naylor and Daly did. Their home state may not recognize the marriage (most do not), but the marriage is still a legal relationship with consequences — to the status of the couple, who cannot marry anyone else while their original marriage endures, and to their rights relating to property, support, and custody of children.
Divorce is the legal mechanism that ensures protection for the rights of spouses and the well being of children when a marriage ends. In attempting to deny same-sex couples access to those legal protections, Texas Attorney General Greg Abbott adds his state to a growing number that elevate hostility toward their LGBT citizens over good public policy.
If Texas has its way, couples like Naylor and Daly may not be able to secure a divorce anywhere. Most states, including Massachusetts, require that at least one spouse be a local resident before they can go to divorce court. A Texas couple can marry in Massachusetts, but they cannot divorce there without relocating.
And even securing a divorce in a state like Massachusetts will not guarantee a couple’s rights. When one state issues a divorce, other states are ordinarily required to enforce it, along with the division of property between the ex-spouses and any award of support. But the federal “Defense of Marriage” Act (DOMA) says that hostile states don’t have to enforce judicial proceedings “respecting a relationship between persons of the same sex that is treated as a marriage…or a right or claim arising from such relationship.” DOMA is an invitation for hostile states to disregard the divorce decree of a same-sex couple altogether.
Consider what this means: Say that two men, both native to Iowa, get married and later divorce. If one decides to skip out on his obligations under the divorce decree, he can simply relocate to a place like Texas and dare his ex to come after him. If the couple were straight, the Texas courts would be required to enforce the decree. But since they’re a same-sex couple, Texas can invoke DOMA and pretend that the decree doesn’t exist, undoing all the property rights that were settled by the divorce.
There is only one word for this type of discrimination: Nasty. Texas should be ashamed.