Monday, March 25, 2013

My Big Gay Marriage Mess


This week SCOTUS takes up two issues related to gay marriage: the repeal of California’s Proposition 8 and the Defense of Marriage Act.  Here is a very helpful illustration of the possible outcomes: flowchart.  As an initial matter, kudos to NFL player Scott Fujita for his thoughtful article last week.  His call for respect and equality is indicative of the social shift that is well underway and unstoppable.  I was going to write a thoughtful, I dare say intellectual, post, but Jeffrey Toobin beat me to it and did a better job than I ever could.

The two nerdy things I will say are: (1) on a purely procedural Article III argument, the Prop 8 ban survives and DOMA goes down, but if they get into the social issues, (2) Antonin Scalia, who has compared the right of people to pass moral judgment on homosexual activity as society’s right to condemn murder, has already portended the eventual result in his dissent in Lawrence v. Texas:

“If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), ‘when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,’ what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’?

I have never been too worried about this eventual progression because I knew that the longer the actual impact of gay marriage in states like Massachusetts could be measured, the more the histrionic parade of horribles feared by opponents would be unsupportable and incapable of passing even the rational basis test.  As Toobin points out, opponents are left only with the head-scratching procreation argument that debases even the unions of my heterosexual friends who are happily married and intentionally childless.  But take away all of the political bluster and we’re left with the fact, as illustrated by Edith Windsor’s experience in the DOMA case, that the system cannot work as presently constructed.

Amy and I got married legally in the Commonwealth of Massachusetts on August 18, 2007.  As part of the marriage certificate, we had to choose our legal names post-union.  I have to admit that of all of the important issues we discussed pre-marriage (children, family values, finances, etc.), we had never discussed which names we would use, because I just assumed we would keep our own names (we both have challenging last names, so neither was an upgrade).  But Amy surprised me two days before the wedding by electing to take my last name when we applied for the license.  We wanted to have children and she wanted a single name to reflect the entire family unit.

 In May 2009, we relocated to Atlanta, GA for Amy’s job.  We knew we were leaving a jurisdiction where we were legally married for one in which we had absolutely no enforceable legal relationship, but we figured we could paper it with medical proxies, wills, and the other legal documents people had used before gay marriage was sanctioned.  We had previously managed the unfair and awkward tax status, so we figured it would be a pain, but it could be done.  But then we ran into the bane of all existence, the Division of Motor Vehicles.

Amy’s backup identification generally reflected her maiden name, but Georgia accounted that this happens for many people who are recently married, so a marriage license was required to show the change of name and reconcile the name change.  Because Amy’s name was changed by operation of law in connection with a marriage the State of Georgia did not recognize, however, the State would not recognize the name change or any information on the certificate.  Had Amy changed her name on a whim to Redsox Rule or Ima Loser or any ridiculous made up foolishness for fun, that would have been respected, but there was absolutely no way for her to get a license in Georgia under any name other than her maiden name, which she could not actually do because that name was no longer tied to her social security number or any other legal identity.  She could not go back to Massachusetts to get a court order changing the name outside of the marriage process because her name was, in fact, already legally changed.  She could not get a court order in Georgia changing her name because that would be a legal imprimatur on a union that they denied existed.  It was a total clusterf*ck.  I generally pride myself in keeping composed in the face of adversity, but we were both literally bawling at the DMV in frustration (I’m sure that is not the first or the last time otherwise reasonable adults were reduced to tears of frustration at the DMV, but still…).  I could not believe that there could be no legal recourse and I set to research and writing and calling on members of the Georgia bar for help, but eventually exhausted all venues and had to admit defeat.  In the end, she was forced to violate Georgia’s legal requirement that a resident transfer her out-of-state license within 30 days of residency and just hope she never got caught.

The marriage subsequently unraveled fairly quickly and ended in divorce in 2010, which remains the most painful experience of my life.  I joke now that I wish I never had the right to get married because it could have spared me that brutal process, but truthfully we all deserve the right to make mistakes, as we tend to grow more from them than we do from our successes.  And I don’t blame the registry debacle for the demise of the marriage, it was otherwise doomed, but it certainly did nothing to help.  Among many hurtful words that were exchanged as the marriage fell apart, her frustrated and angry: “I wish I never took your f*cking name” shouted outside the DMV that day ranks very high on the emotional dagger list.

So if it is not fixed this week, and I think it will be, the public will not tolerate this absurdity for much longer.  Common sense dictates that a person cannot have a different set of very important legal rights (like driving), by merely crossing state lines.  So shaddup, Antonin!

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