My So Called Life - The Good, The Bad, The Ugly

Embrace life -- both the sweet days and the bitter...embrace the joy and the sadness...the successes and the defeats -- for all of these things, both good and bad, have made you who you are.

Wednesday, October 10, 2007

Can A Divorce Be Honored - When The Law Doesn't Honor The Marriage?

So two women meet and fall in love. They decide they want to build a life together and grow old together. They have a desire to marry but their type of marriage is not legal. Then the unthinkable happens. Massachusetts declares gay marriage legal and starts handing out marriage licenses to gay couples. It is a historic event.

These two women decide they want to get married and so they obtain a license from Massachusetts. They are happy and elated.

Now fast forward about 4 years down the road. Like many couples, gay or straight, they find that they have to end their relationship for one reason or another. Only this time they now face a different hurdle. For you see, they do not reside in Massachusetts...they live in Rhode Island.

Rhode Island has no law recognizing gay marriage and as a result they have no avenue to obtain a divorce in Rhode Island. Quite a dilemma indeed. What are they to do? It appears that their only option would be for one of them to move back to Massachusetts and live their long enough to qualify to obtain a divorce under Massachusetts's law...or...

They could challenge the law of Rhode Island to honor their divorce.

And there in lies the sticky nature of this dilemma.

Rhode Island law is silent on the legality of same-sex marriage. So the questions arise:

Does one state have to honor the same sex marriage license granted in another state?

Does one state have to honor and grant a divorce for a same-sex marriage license granted in another state?

Since Rhode Island law does not honor the same sex marriage license to begin with, then technically the state has no marriage to honor and in their eyes, the divorce is not needed... because a marriage never took place to begin with.

So it becomes a question of State's Rights...

Can the courts or the federal government force one state to honor something that its citizens might not want the state to honor?

It is an interesting question...an interesting dilemma...an interesting catch 22...

If Rhode Island honors the divorce, then they are actually agreeing that a marriage took place and therefore would indirectly be honoring and upholding gay marriage...which goes against what their law currently allows being that the law in Rhode Island is silent on the matter.

It will be interesting to see what Rhode Island's highest court decides...

4 Comments:

  • At 5:06 PM, Anonymous Heather said…

    Theoretically, Rhode Island under the full faith and credit clause is supposed to honor the marriages and divorces of other states.

    However, given the fact that numerous states currently have amendments banning gay marriage it brings into question how much strength does the full faith and credit clause really have? Who is the right, the state the recognizes it or the state that doesn't?

    My personal opinion aside, this is an extremely interesting case for constitutional legal eagles because it can become a precedent for how other states deal with this issue and many others.

    It will be interesting to see how the high courts rules...

     
  • At 5:23 PM, Blogger Matthew said…

    I agree the full faith and credit clause would apply but does it apply when the marriage involved is a same sex marriage???

    obviously it applies to marriage between a man and a woman

    but what about a man to a man?
    or a woman to a woman?

    that is the interesting question...

     
  • At 6:56 PM, Blogger steve'swhirlyworld said…

    I love that this is going to cause the court system to really affect change. I'm very curious how this is going to turn out.

     
  • At 3:19 PM, Blogger Ktarra said…

    In theory yes just reading the clause in the constitution it should apply. There are no exceptions to the clause. I doubt the Framers intended the clause to be used this way, but it is what it is.

    I see this less as an issue of whether the clause itself acknowledges the issue of gay marriage but more of when states have laws that are mutually exclusive, Texas(bans gay marriage)& Massachusetts (allows it)for example how do you balance the rights of each state to have their laws given full faith and credit across the land.

    Constitutionally, I don't see how this possible. Neither state is more important than the other. So this is definitely going to be an interesting case that will likely set precedent for how the states will deal with these issues.

     

Post a Comment

<< Home