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Speed bumps for same-sex marriage

BY SHAWN GUDE | MAY 14, 2009 7:32 AM

For Lindsey Quinn-Wriedt, a UI graduate student who recently married her wife, the out-of-state legal issues facing her nascent same-sex marriage are daunting.

“It’s scary — if we were in a car accident, my not being able to see her or her not being able to see me,” Quinn-Wriedt said.

Her fear is understandable. The federal government doesn’t recognize same-sex marriages and bars states from being forced to recognize other states’ same-sex marriages.

Five states allow couples of the same sex to marry — Connecticut, Massachusetts, Vermont, Iowa, and Maine. And on Wednesday, the New York State Assembly passed a bill that would legalize gay marriage. The legislation now goes to the Senate.

Because many states have statutes or constitutional amendments banning gay marriage, however, the current patchwork of state laws guarantees myriad legal conundrums for couples, moral and religious questions aside.

Discrepancies in tax laws — both federal and between states — are among the least of couples’ worries.

“There’s a huge array of problems,” said Andrew Koppelman, a professor of law and political science at Northwestern University.

Koppelman, the author of Same Sex, Different States: When Same-Sex Marriages Cross State Lines, pointed specifically to property and inheritance issues that could arise if a spouse either fled with the couples’ assets or got into an out-of-state car accident.

The problems haven’t skirted the minds of officials at Lambda Legal — a gay-rights advocacy group that recently represented same-sex couples in Iowa — who have prepared a question-and-answer packet on the legal issues.

“While some states now respect same-sex couples’ legal relationships, the federal government and many other states are unlikely to respect your marriage,” the document reads, further advocating for couples to consult with an attorney to arrange legal precautions.

In addition, couples venturing to Iowa to tie the knot will return to their home states without the legal protections of a married couple.

Citing the legal issues that arise with blanket “non-recognition” laws in states, Koppelman argued states should eschew such laws.

University of Oregon Professor Peggy Pascoe, who has written extensively on same-sex marriage and its historical parallels, echoed Koppelman.

“In American law, states are supposed to recognize, out of courtesy for other jurisdictions, marriages in the other states,” Pascoe said.

Both experts compared the current legal limbo to legal precedents set by disparate cross-state laws on interracial marriage, also termed miscegenation.

Indeed, putting aside the divisive, ideologically charged debate over moral equivalency, there are clear legal, historical parallels between the patchwork of state laws concerning interracial marriage and the current fight over same-sex marriage.

Interracial-marriage opponents never succeeded in passing federal legislation — a distinct difference between the two.

Still, “the issue of cross-state recognition often came up, with state courts puzzling over when and in which situations they might need to acknowledge relationships made in other states,” Pascoe wrote in an e-mail.

Koppelman noted additional cross-state marriage discrepancies, including legal ages and cases of marital incest. But the “most revealing” and the one that sparked the “deepest disagreement among the states” was interracial marriage.

Iowa had a “good record” on the miscegenation issue, Pascoe said. While the state passed a law in 1840 prohibiting whites from marrying “Negroes or mulattos,” the law was removed from state code in 1851.

Anti-miscegenation laws were at their height from the 1890s until the 1940s, Pascoe said. In 1967, the Supreme Court unanimously struck down laws banning marriages between blacks and whites in its landmark Loving v. Virgini decision.


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