Gay and Lesbian Rights
BY Shulamit Shvartsman for Lawyers.comsm
It went down to the wire but New York passed a gay marriage law. This makes New York the sixth state to legalize same-sex marriage. It remains to be seen if this is the tipping point for gay rights nationwide.
Almost immediately afterward, seven gay couples announced they would sue the state of New Jersey for full recognition of marital rights. New Jersey has a civil unions law for same-sex unions. But the couples argue the law has failed to confer the same rights as traditional marriage gives to married couples. 2011 promises to be a hot summer for the gay-marriage issue.
Men who legally married each other in Massachusetts can’t get a divorce in Texas. That’s the ruling made by a Texas court of appeals in Dallas.
Texas law limits marriage to couples of the opposite sex. The Texas court said it had no obligation to recognize a gay marriage performed in another state since it was contrary to Texas law. Because Texas courts don’t recognize gay marriage, they have no power to perform a gay divorce.
The court also ruled the Texas laws against same-sex marriage didn’t violate the federal constitution. The court found it reasonable for the state to limit marriage to a man and woman in order to provide the traditional environment for raising children.
Next door in Santa Fe, a judge ruled that two women can get a same-sex divorce in New Mexico. The women were married in 2004 after a county clerk briefly issued same-sex marriage licenses until the state attorney general told her to stop.
The judge rejected the argument that the marriage was void from the start because the county clerk lacked the authority to issue the same-sex marriage licenses. The judge decided that the county clerk might have made a mistake, but it was too late now to invalidate the clerk's actions.
In a long-awaited and controversial 45-page opinion, the Attorney General (AG) of Maryland recently declared that Maryland recognizes same-sex marriages performed in other states. This means all state agencies must give the same benefits to married gay couples given to heterosexual couples.
Does This Mean Same Sex Couples Can Get Married in Maryland?
The ruling doesn't allow same-sex couples to marry in Maryland. Currently, only five states and the District of Columbia allow same-sex marriages. However, same-sex couples can register as domestic partners and can get some, but not all, marriage rights and benefits.
What Effect Does the Attorney General's Ruling Have?
This was an opinion written by the state's AG. It's not the law, rather a guidance to judges and state agencies about how to act. The opinion recommends courts in Maryland respect the law of other states and recognize a same-sex marriage that legally occurred in another state.
Gay-rights activists were thrilled with this opinion, since it represents the most significant progress on their agenda this year. However, many organizations aren't so enthusiastic. The Maryland Catholic Conference criticized the opinion as against the institution of marriage.
Some lawmakers even threatened to pass laws barring the recognition of same-sex marriages performed in other states. One state delegate even threatened to impeach the AG.
The Legal Issues
Legally, states must give full faith and credit to the laws of other states. Another term for this is "comity." Under the US Constitution, states must recognize the laws of other states. This means that if other states permit same-sex marriages, Maryland must recognize them.
There are other types of marriages barred in Maryland that are nonetheless recognized in the state. For example, Maryland doesn't allow common-law marriages but will recognize and honor a common-law couple who moves into the state.
The AG's opinion is likely to be challenged in court when a lawsuit is filed. Courts can choose to take the guidance offered, unless legislation is passed that contradicts it.