Monday, July 14, 2008

Equality for Every Couple, Everywhere

With more and more states recognizing same-sex relationships – and two states recognizing full marriage equality – LGBT couples can take heart that more and more often, their unions are being celebrated by their neighbors and protected by their state.

That is, of course, as long as they “stay put” where they are.

While California does not have a residency requirement to tie the knot, and Massachusetts is considering arguments in favor of dropping its own, New York currently stands alone as the only state in the union to recognize other states’ unions even before legalizing them at home. That means that for countless couples, protecting their relationship under the law currently requires staying in the state where they were originally recognized. That, in turn, severely limits a couple’s ability to move across state lines for say, example, a job opportunity in another area.

And that, in another turn, leads to some complex and critical legal questions for same-sex couples.

Steve Sanders (pictured), an attorney with the Chicago law firm of Mayer Brown LLP, writes on FindLaw’s Writ blog that, indeed, there is a compelling constitutional reason for other states to follow New York’s lead and recognize unions performed in other jurisdictions.

“Imagine a world where your marital status changed when you moved to a new state,” Sanders writes. “. . . .Unimaginable? For most people it is, but not for gays and lesbians.”

“[M]y argument,” Sanders says, “is that if a same-sex couple already lives in a state that’s willing to license their marriage, then they simply have a right to remain married if they subsequently move someplace else. In terms of constitutional doctrine, the Fourteenth Amendment’s due process clause gives the couple a liberty interest in the ongoing existence of their marriage. . . . Such a right would be narrow and modest. . . . But grounding the rule in the Constitution would prevent states from carving out ill-founded and discriminatory exceptions. In a highly mobile society where most marriages are universally recognized, a state should bear the burden – that is, it should be required to articulate some ‘compelling interest’ – if it wants to carve out an exception to this rule.”

“[W]hen potentially thousands of couples face having their marriages destroyed for no good reason, it is time to recognize that law has failed to keep pace with social change,” Sanders concludes.

Families should not be confined by discriminatory laws that limit their ability to be as equal in one state or county as another. And Sanders’ compelling and unique 14th amendment argument may hold hope for putting equality on the move for couples who move, too.

To read Sanders’ complete arguments in favor of this important step toward honoring every couple, everywhere, click here.

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