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Same Sex, Different States

Same Sex, Different States: When Same-Sex Marriages Cross State Lines

Copyright Date: 2006
Published by: Yale University Press
Pages: 224
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  • Book Info
    Same Sex, Different States
    Book Description:

    Must a state in which gay marriage is not legal recognize such a marriage performed in another state? The Constitution does not require recognition in all cases, but it does forbid states from nullifying family relationships based in other states, or from making themselves havens for people who are trying to escape obligations to their spouses and children. In this book, Andrew Koppelman offers workable legal solutions to the problems that arise when gay couples cross state borders. Drawing on historical precedents in which states held radically different moral views about marriage (for example, between kin, very young individuals, and interracial couples), Koppelman shows which state laws should govern in specific situations as gay couples travel or move from place to place.Americans are profoundly divided over same-sex marriage, and now that gay civil unions and marriages are legal in some states, the issue has become increasingly urgent. Koppelman offers a sensible approach that will appeal to the best instincts of both sides.

    eISBN: 978-0-300-13513-8
    Subjects: Political Science, Sociology

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-x)
  4. Introduction
    (pp. xi-xviii)

    Americans are profoundly divided about same-sex marriage. In the 2004 elections, voters in twelve states approved referenda banning such unions. But in Vermont and Massachusetts, two states in which same-sex unions are recognized, the prorecognition factions increased their numbers in those states’ legislatures.

    Each side now is striving for total victory. Proponents of same-sex marriage want a judicial declaration, preferably by the U.S. Supreme Court, that recognition of same-sex marriage is constitutionally required. Opponents want a constitutional amendment banning any state from recognizing such marriages. Neither side is going to get its way soon; consensus on this emotional and divisive...

  5. I How We Got Here
    (pp. 1-11)

    Robert Kaufmann met Walter Weiss in 1948. Within a year, they had moved in together. Robert was an heir of the Kay Jewelry fortune, but he had no interest in business. He wanted to be an artist. Walter encouraged these interests and eventually ran the household; oversaw the cooking, cleaning, and entertaining; answered the mail and telephone; paid the bills from Robert’s bank account; and found doctors when Robert was ill. Robert turned out to be talented. By the time he died, eighty museums had accepted his paintings for permanent display.

    Beginning in 1951, Robert made a series of wills,...

  6. II Marriage, Choice of Law, and Public Policy
    (pp. 12-27)

    Shirley Wilkins was sixteen when she decided to marry Stephen Zelichowski. But they had a problem. Under the law of New Jersey, where they both lived, they needed her parents’ permission, and her parents evidently were less enthusiastic about Stephen than she was. Shirley and Stephen solved their problem in a creative way. They traveled to Indiana, where the law was less restrictive, got married there, and immediately returned to New Jersey, where they moved in together.

    A year later, Shirley had regrets. Stephen, it turned out, was in the habit of stealing cars and was imprisoned on several counts...

  7. III Miscegenation in the Conflict of Laws
    (pp. 28-50)

    In May 1873, Sarah Spake left her home in North Carolina and crossed the border into South Carolina. There she married Pink Ross. Sarah was white; Pink was black. They would have been barred from marrying in North Carolina, but at that time, South Carolina, although it had been part of the Confederacy, had no law against interracial marriage. Northern troops continued to occupy the South in the wake of the Civil War, and the supporters of white supremacy were in retreat, although they would seize power again in a few years.

    Within a few months, Sarah and Pink decided...

  8. IV The Stakes
    (pp. 51-68)

    We have looked at many stories and will look at more. But ultimately, the question of interstate marriage recognition is not just a question about particular individuals. Gay people, it has sometimes been remarked, have all the “good” stories on their side: partners heartlessly kept away from hospital deathbeds, families deprived of health insurance and pensions. But they have still lost the fight over same-sex marriage in most states because most Americans are convinced that these stories are outweighed by principles that dictate that marriage can only be between a man and a woman. The same-sex marriage controversy is a...

  9. V Against Blanket Nonrecognition
    (pp. 69-81)

    In 1852, Jonathan Lemmon and his wife left Virginia for Texas. Evidently economic hardship was part of the reason. They were poor. Nearly all the property they had in the world was eight slaves.

    Naturally, they brought the slaves along. Traveling overland was expensive and slow in those days, and the easiest way to go was by boat. But there was no direct steamship service between any port in Maryland and the Gulf Coast. The usual route was to go first to New York, then change boats and take a steamboat to New Orleans.

    Ignoring warnings not to take their...

  10. VI Choice of Law Rules: The Options
    (pp. 82-96)

    Kathleen Lawson married Nawal Baindail in England in 1939. Kathleen was English; Nawal was from British India. Some time after the marriage, Kathleen discovered that Nawal had previously contracted a Hindu marriage in India—“a fact in his personal history,” one of the judges on appeal dryly noted, “which he did not think it necessary to reveal.”¹ In 1928, he had married a woman whom the case report describes only as “a daughter of one Ramchandra,”² and she had borne him a son.

    Kathleen sought to annul her marriage on grounds of bigamy. Nawal resisted the suit, probably because Kathleen...

  11. VII When to (and When Not to) Recognize Same-Sex Marriages
    (pp. 97-113)

    Neal Conrad Spicehandler was having a good day. He and his partner, John Langan, had lately celebrated their civil union in Vermont and just that morning had bought a house together in New York, where they lived. He was a healthy forty-one-year-old, and the future looked good.

    But the next day he was dead. What killed him was a series of bizarre accidents, of a kind that no one could have anticipated. He happened to be walking on the street when Ronald Popadich, a diagnosed paranoid schizophrenic, was on an enraged homicidal spree. In the space of a few days...

  12. VIII The Irrelevance of Full Faith and Credit and the Defense of Marriage Act
    (pp. 114-136)

    Janet and Lisa Miller-Jenkins, who were then living in Virginia, formed a civil union in Vermont in 2000. Lisa gave birth to Isabella, conceived through artificial insemination, in 2002. They moved to Vermont when Isabella was two months old. Janet and Lisa shared parental responsibility. “After Lisa nursed her, my duty was to get her to go to sleep, and I’d put her on my heartbeat and, boom, she’d go to sleep,” Janet said.

    When Lisa tried to have a second child and had a miscarriage, “it was like a black cloud over the house,” Janet said. In September 2003,...

  13. IX The Difference the Mini-DOMAs Make
    (pp. 137-148)

    Although the federal Defense of Marriage Act is irrelevant to the question of when and whether same-sex marriages will be recognized, the numerousstatestatutes declaring a strong public policy against same-sex marriage, or mini-DOMAs, are much more pertinent. I have deferred discussion of these laws until now because statutes operate against a background of preexisting law. We had to be clear on what that preexisting law was before we could explore the mini-DOMAs and their effects.

    These statutes were enacted in three waves in response to the progress of the movement toward same-sex marriage described in Chapter 1. In...

  14. X Toward Benign Competition
    (pp. 149-154)

    The status of same-sex couples who live in Massachusetts, Vermont, Connecticut, and California, states that give their relationships all the rights of married couples, is doubtful today whenever they leave their home state. These couples can (if they can afford good legal advice!) try to use legal instruments, such as wills, contracts, and powers of attorney, to duplicate their marital rights in order to make those rights portable to other states. But such stratagems cannot duplicate all the rights of marriage. As E. J. Graff writes about her own same-sex partnership, “the documents that Madeline and I have signed allow...

  15. Notes
    (pp. 155-196)
  16. Index
    (pp. 197-204)