August 18, 2011
Distinguished Professor Ruthann Robson, who is the author of numerous works developing a lesbian legal theory, which include the books Sappho Goes to Law School and Lesbian (Out)Law: Survival Under the Rule of Law, and many law review articles, discusses same-sex marriage.
Distinguished Professor Ruthann Robson
What’s the present state of same-sex marriage in New York?
The New York Marriage Equality Act, passed June 24 and signed by the governor that same evening, and effective one month later, allows same-sex couples to enter into legal marriages in New York on the same terms as so-called “opposite-sex” couples. It provides “A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex.” So, with two exceptions, same-sex marriages and opposite-sex marriages are identical if the married couple remains in New York.
What are those exceptions?
One exception is the religious exemption in the Marriage Equality Act itself. It relates only to the “the solemnization or celebration of a marriage,” not to the status of marriage. It exempts religious organizations from being required to provide goods or services for the solemnization or celebration of a marriage and prevents them from being sued for discrimination. For example, it means that if a minister does not want to perform the marriage ceremony (the solemnization) of the couple, the minister is not liable for discrimination. Likewise, if a church does not want to rent its hall for a same-sex wedding reception, it will not be liable for discrimination. This does not alter the previous state of the law, but merely clarifies it. The exemption does not extend to people who happen to disagree with same-sex marriage. There has been some minimal controversy regarding town clerks who disagree with same-sex marriage and who might refuse to issue a marriage license, but that seems to have dissipated.
The more serious exception is that a same-sex married couple will be married for purposes of state law but not federal law. The Defense of Marriage Act, DOMA, passed by Congress in 1996 prohibits the federal government from recognizing same-sex marriages. One example that effects almost every same-sex married couple in New York is that they would be filing their state income tax returns as a married couple and their federal income tax returns as single persons. There is a case by a New York widow, who had been married in Canada to her now-deceased partner, suing to declare DOMA unconstitutional. The New York Attorney General has filed an amicus brief supporting her and arguing that DOMA is unconstitutional. The United States Department of Justice is no longer defending the constitutionality of DOMA. Another federal judge has declared DOMA unconstitutional. So, DOMA is substantially weakened, even as if is still valid law.
What if a married same-sex couple leave New York?
It depends on where they go! If they go to a state or a nation that also allows same-sex marriages, such as Iowa or Canada, then their marriage will certainly be valid. As for states that do not allow same-sex marriage, their legal status will be uncertain. Some states will recognize, or partially recognize, same-sex marriages legally contracted in other states even if their states laws do not allow such laws — New York was in this category before it passed the Marriage Equality Act. Many states will not recognize same-sex marriages from other states under their state DOMA-like laws or DOMA-like state constitutional amendments.
Do you think other states will be following New York?
Perhaps. New York is the largest state to extend marriage to same-sex couples. Notably, this occurred through legislation, as New York’s highest court had rejected a constitutional challenge to limiting marriage to opposite sex couples. In some other states, such as Massachusetts and Iowa, the state’s highest courts did rule that limiting marriage to opposite sex couples violated their state’s constitutions. The situation in California is the most complex: legislation, state court opinions, a voter-referendum amending the state constitution, successful federal litigation challenging the constitutionality of that referendum, and a present appeal that presents an array of constitutional issues, including the standing of the losers to appeal.
How do you see same-sex marriage affecting the rights of LGBT persons more generally?
Framed as a matter of equality, the constitutional litigation and political discourse of same-sex marriage affects other equality issues. An important aspect is the standard of judicial review that will be used to evaluate laws or policies that discriminate against sexual minorities. Even under the lowest standard — rational basis — there are questions about what the judiciary and we as a society find “rational.” Is it rational to link marriage and procreation? Is it rational to believe that children “do best” when they are raised in one household by one mother and one father to whom they are biologically related? Such issues raise fundamental questions about LGBT families and about all families.
However, I have long worried that “marriage equality” will have a negative impact on sexual minorities. It has the potential to divide us into the “good” people who are married and the “bad” people who live less traditional lives. Indeed, some conservatives have argued that same-sex marriage should be promoted for this very reason. It could open avenues for discrimination against some sexual minorities; this would seem “rational” because LGBT people have the choice to marry. I also continue to worry that what may seem as if it is a choice is not actually a choice — marriage becomes compulsory. I’ve argued that compulsory matrimony is not necessarily an improvement over compulsory heterosexuality.
To learn more about Professor Robson’s pioneering work, visit www.ruthannrobson.com.
