State Laws Create Legal Problems for Same-Sex Couples

April 11, 2005

NEW YORK—When John Langan's longtime partner died in a New York hospital as a result of what Langan believes was medical malpractice, he did what many bereaved spouses might do: He sued for wrongful death.

Three years later his suit is hung up in legal wrangling. The hospital claims Langan has no right to sue because he and his partner—despite being joined in a legal civil union in Vermont—were not married under New York law.

The case illustrates the confusion and uncertainty that are likely to plague same-sex relationships in the United States for the foreseeable future because of the patchwork nature of the law, experts say.

Massachusetts allows gay and lesbian couples to marry. Vermont permits civil unions, as Connecticut is poised to do. California has domestic partnerships (which, like civil unions, are marriages in all but name). But the federal government and 43 states, including Illinois, have laws restricting marriage to one man and one woman. On Tuesday, Kansas became the latest state to approve a constitutional amendment banning gay marriages and civil unions.

So what happens when two men who are married in Massachusetts move to Illinois?

Does their marriage blink on and off like a strobe light as they fly across the country? asked Northwestern University law professor Andrew Koppelman.

According to Debra Braselton, a family-law attorney in Oakbrook Terrace, laws regulating who can marry are the province of individual states. But states routinely recognize marriages from other states, unless those unions are prohibited or against public policy.

Historically, such exceptions have included incestuous, polygamous and interracial marriages. In recent years, most states have added same-sex marriages to the list of unions that violate their public policy.

Supreme Court decision?

Koppelman believes the ultimate question of whether same-sex marriage should be legal in this country is unlikely to be resolved anytime soon. The U.S. Supreme Court will avoid the issue as long as it can, he predicted. (It wasn't until 1967 that the court decided states could not ban mixed-race marriages.)

Nevertheless, many of the traditional benefits and obligations of marriage, such as the right to inherit property or make medical decisions, are likely to be upheld for same-sex couples as the law evolves.

The alternative—what Koppelman calls blanket non-recognition—would lead to absurd results, he said. For example, a same-sex spouse could marry again in another state without having to dissolve, or even disclose, the earlier marriage. If the children of a same-sex marriage were kidnapped and taken to another state, a non-biological parent would have no right to get them back unless he or she had formally adopted them.

Ruling appealed

In the New York case, a state court ruled in 2003 that the Vermont civil union between John Langan and Neal Conrad Spicehandler made Langan a spouse with the right to sue the hospital where Spicehandler died. Lawyers for St. Vincent's Hospital, however, have appealed to a higher court.

Langan, 43, was incredulous at having his relationship with Spicehandler called into question. He said he and Spicehandler had been together 16 years, living like an old married couple in a suburb of New York.

Maybe we didn't have the word 'marriage,' said Langan, an insurance agent, but we knew in our hearts that we were legally married.

If getting a same-sex union recognized is hard, getting out of one can be even harder. Courts in several states are struggling with the question: How can you dissolve a marriage that you don't recognize in the first place?

Vermont is the only state where a couple who were joined in a civil union can be readily separated. Although 85 percent of the 7,400 civil unions performed so far have been for out-of-state couples, dissolutions are granted only to Vermont residents. By contrast, Massachusetts, where an estimated 5,000 same-sex marriages have been conducted, will not grant marriage licenses to couples whose union would not be legal in their home state.

Kimberly Brown and Jennifer Perez of Sioux City, Iowa, asked a local court to dissolve their Vermont civil union in 2003. A judge agreed, but his order has since been stayed. A group of conservative lawmakers and clerics appealed to the Iowa Supreme Court, saying the district court could not dissolve a relationship that was not legal. Iowa bans same-sex marriages and does not recognize same-sex civil unions.

Koppelman believes one can address the administrative question [of how to treat same-sex marriage] without taking any position on the moral one.

Courts did that in the past in the context of interracial marriage.

Pearl Mitchell and Alex Miller, a mixed-race couple from Mississippi, moved to Chicago and were married in 1939. Six years later, Mitchell died without a will, leaving land she had owned in Mississippi. Miller claimed the land, but Mitchell's relatives objected, saying the marriage could not be recognized for any purpose in Mississippi.

The state Supreme Court decided the marriage was valid in that context.

Similar questions are expected to arise over the next few years in the context of same-sex marriage.

But Koppelman predicts judges will find some issues easier to solve than others. Rights that people can confer on one another through legal agreements and declarations—such as inheritance and medical power of attorney—probably will be recognized, he said. So if a gay couple from Massachusetts have a traffic accident in Illinois and one spouse is hospitalized, he said, the other spouse likely will be allowed to make medical decisions for the patient just as a spouse would be.