Posted on 05/10/2004 4:30:57 PM PDT by xsysmgr
The inevitable other shoe in Vermont's civil-union law is dropping — in Westchester County, New York.
That's where two lesbian partners, civilly joined in Vermont but living in New York, are the parties in a contested dissolution case. The case has the potential to raise numerous issues predicted by those who criticize the idea of civil unions as legally recognized domestic relations in some but not all states.
New York law does not treat the filing of dissolutions as a matter of public record, so the specifics of the case are not publicly known, including the names of the parties, whether alimony is being sought, and whether there is an issue of child custody involved. Those familiar with the case would describe it only to a limited extent, and then only on condition that their names not be used. But the mere existence of the case, filed earlier this year, practically guarantees that a dense thicket of complicated and perhaps contradictory laws will have to be penetrated.
Further complicating matters is that unlike most states, New York does not have a "no-fault" divorce law; this means that the plaintiff must prove grounds exist to justify dissolution. In this case, we're talking about a domestic relationship not recognized by the state to begin with.
Indeed the initial question when the case comes to trial at the county courthouse in White Plains may well involve whether New York is obligated to recognize Vermont's civil-union statute at all. While worded to distinguish itself from marriage, the Vermont statute, which went into effect in 2000, also takes pains to say that civil unions are marriages in all but name: "Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses in a marriage."
Article IV, Section 1 of the U.S. Constitution, in its "full faith and credit" clause, specifies that states must recognize the laws of other states and the results thereof. Congress passed the Defense of Marriage Act in 1996 specifically to short-circuit that clause in the event that any state decided to recognize marriage as comprising something other than one man and one woman.
In the New York case, however, this raises more questions than it answers. Whether Vermont's civil-union law so closely resembles marriage as to be, in effect, marriage for purposes of the Defense of Marriage Act remains to be seen. The case is being tried in matrimonial court, not a court that deals with civil contracts. But, in any case, the Defense of Marriage Act does not prohibit states from recognizing same-sex marriages from other states; it merely leaves it up to the individual states to decide. New York is not bound, therefore, by the act's provisions, and it is unclear whether there is any public policy in the state one way or the other. Whether it is an issue in the trial at all is, ironically, up to the defendant in the case, who could raise it in the hope of getting the case dismissed. Although the judge could point to it as grounds for dismissal without either party mentioning it, this is unlikely, and there is no provision for a third party to enter the case at trial and argue for its dismissal on Defense of Marriage Act grounds.
Barring invocation of the Defense of Marriage Act, the case would be tried under the full-faith-and-credit clause. But again there are legal vines to be hacked away. What law in New York governs civil unions that do not legally exist in New York? The judge would have a choice. The case could be ruled as being so far outside New York law that the parties to the suit would be told to go back to Vermont for their divorce (which would be problematic not for the judge but certainly for the parties, in that Vermont has a six-month residency requirement for filing and a one-year residency requirement for obtaining a dissolution). The judge could decide to try the case in New York employing the relevant Vermont statutes. Or the judge could try the case under New York domestic-relations law, effectively creating recognition of civil unions in the state. This decision is likely to be closely watched and reported in the legal journals. Whether it finds its way to higher courts in this case depends on the tenacity of the parties.
"It is unclear how other states may handle a civil union dissolution," notes the website of the Vermont secretary of state.
There is apparently no judicial guideline in New York for the handling of such matters. By statute, New York does not recognize common-law marriages, but under full faith and credit dissolves them if a divorce action is brought. It could turn out that the path through the legal jungle is an easy one, depending on the approach taken in the case. But it may well spark legislative action in the Empire State.
Depending, too, on the complexity of the case — assets, injunctive relief, custody, and support — the civil-union dissolution brought in Westchester County could take years, as is often true of conventional divorces. When it is over, the two women could have spent the greater part of their civil union in court seeking to have it dissolved or annulled.
— Dennis E. Powell is a freelance writer.
This was rejected in Georgia, Connecticut, Texas and Florida.
And gay marriage was rejected by Arizona and New Jersey courts. The cases they lose are not widely publicized. All they need is one win in the right court.
You are right that the reporter should have mentioned the other cases. But why bother when no one else does? Thorough reporting just doesn't exist. Slap the story out in pc languange and collect your pay or promote your agenda. When you are the press, you don't have to worry about ethics because you have super-rights and altruistic motives (cough!). The end justifies the means in that case.
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