Sunday, May 25, 2014

Marriage equality includes, yes, the right to divorce

Posted By on Sun, May 25, 2014 at 7:51 AM

click to enlarge nytimes_divoce.jpg
John Lyon of Stephens Media writes about a little-noticed factor of Arkansas's many laws discriminating against gay people. Those who've been legally married in other states are prevented from obtaining divorces in courts in Arkansas where they reside. This presents complications on all the things that courts settle for other married couples — debts, property, child custody.

This discrimination has always seemed to me the first and most likely line of attack on discrimination against gay couples. The U.S. Constitution says:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

Except when you are married to someone of the same sex. That exemption that doesn't appear in the Constitution. Orginialists, wherefore are thou?

The refusal of states that discriminate against same-sex couples to honor the Constitution in this respect is under challenge across the country, but hasn't yet reached a Supreme Court determination. It's not just about divorce. It's also about legal recognition once married for all the other benefits large and small that marriage provides. Such as having both parents' names on a birth certificate. John Lyon offers several examples, including:

Janna Van Winkle of Fayetteville, meanwhile, is uncertain whether she will be able to end her marriage to Diana Van Winkle of Springdale. The couple wed in Iowa in 2010 and have been separated for about a year.

The couple traveled to Iowa just to get married, but they have since learned that they cannot divorce there without establishing residency, which would mean living in Iowa for at least a year.

“Our careers as nurses are here,” Janna Van Winkle said. “We are not able to pick up and move to Iowa. This is where I want to be.”

In the weeklong window between Piazza’s ruling and the Supreme Court’s stay, more than 460 same-sex couples married in Arkansas, most of them in Pulaski and Washington counties. Janna Van Winkle filed for divorce in Washington County Circuit Court during that week.

“It’s up in the air right now,” she said. “We’re still going to actually appear before the (Washington County circuit) judge, and it’ll be him that decides whether or not to grant it. Since we did file right in that window, none of us know what’s going to happen.”’

For more on the subject, here's a New York magazine cover story from last year.

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