Blogs > Cliopatria > Same-Sex Divorce?

Feb 4, 2004 10:01 pm

Same-Sex Divorce?

OK, there's a constitutional question coming up very shortly. The Massachussets Supreme Court has reaffirmed its decision and informed the State Legislature that marriage, and only marriage, would protect the equal rights of homosexual citizens. (Several dissents were filed as well, which supported the concept of the"separate but equal" civil union. I'm with the majority: separate isn't equal) So there will be, shortly, a state in which gay and lesbian marriages will take place.

Here's my question. Among the injustices cited by the court was"the absence of predictable rules of child support and property division, and even uncertainty concerning whether one will be allowed to visit one's sick child or one's partner in a hospital." A few states have enacted hetero-only restrictions on marriage, which indicates that they will not provide benefits or legal protections to non-hetero marriages. But if a gay or lesbian couple married in Massachussetts moves to another state, and decides to break up, can their divorce proceeding be heard in state courts? Can a Massachusetts divorce decree or child custody agreement be enforced in other states? There's a whole host of other issues, including inheritance law, which also ends up in state courts: will homosexuals have to arrange to die in the state where they got married?

And the Federal"Defense of Marriage Act" seems to require that legally married homosexual couples file their taxes separately. Won't that be an interesting"equal protection" case?

P.S. In a triumph of -- well, probably political expediency, but it's hard not to consider this a victory -- the Virginia legislature rejected a proposal to create a Confederate History Month. I don't have a problem with honoring southern culture, traditions, etc. But the Confederacy was a four year rebellion whose primary purposes were rejecting a legitimately elected president and maintaining the"states' rights" to continue the horrific and inhuman abuse of persons. I don't see the attraction.

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Anne Zook - 2/9/2004

You guys are awesome. I did, in fact, start some preliminary research on this subject this weekend. (It occurred to me that, in addition to figuring out how the whole myth of the glorious south was created, I really needed to know more about what, precisely, today's 'southerners' think it is that they lost.)

I'll check out the books, and the links. Thanks!

Ralph E. Luker - 2/6/2004

Three good books which approach the subject from different angles are:
Gaines Foster, Ghosts of the Confederacy: Defeat, the Lost Cause, and the Emergence of the New South, 1865-1913;
Tony Horwitz, Confederates in the Attic: Dispatches from the Unfinished Civil War; and
David Blight, Race and Reunion: The Civil War in American Memory.

Oscar Chamberlain - 2/6/2004

The rewrite began during Reconstruction. You can most easily find references to it by using the phrase "lost cause."

Probably the single group most responsible for this transformation in the public sphere were the Daughters of the Confederacy. Many of the public spaces, statues, etc. in the South devoted to memorializing the nobility of the Lost Cause resulted from their indefatigueable activity.

(If you are ever in Jackson Mississippi, do wander the grounds around the capital for numerous examples. However my "favorite" statue was actually paid for by a veterans organization and devoted to the women of the South, with each face representing one of their four roles : daughters, sisters, wivers, mothers.)

I just did a very quick JSTOR search and it looks like this article would give you a sense of other ways that loss was turned to honor.

Soldiers, Christians, and Patriots: The Lost Cause and Southern Military Schools, 1865-1915
Rod Andrew Jr.
The Journal of Southern History, Vol. 64, No. 4. (Nov., 1998), pp. 677-710.
Stable URL:

Anne Zook - 2/6/2004

Myth-making is a fascinating subject, in fact. I really wish there was some site of historical experts who might be able to find and co-opt someone to write learnedly on the subject of how the former confederate states re-wrote their rather embarassing past and re-created themselves as glorious martyrs.

(Anyone feeling tempted?)

Ophelia Benson - 2/6/2004

Well let's hope it's not only history experts who read this blog. The idea is to be read by anyone who's interested, I think.

Myth-making is an inherently interesting subject, too...

Anne Zook - 2/5/2004

I'm thinking the lawyers are going to be lobbying to let couples divorce in any state they want. Divorce lawyers aren't going to want themselves blocked out of this section of the market.

"Confederate History Month" is a really, really offensive idea. I've never understood why a few states persist in pretending they have some long and illustrious history to celebrate that's unconnected with this country as a whole.

Those few southern states were far from being united behind a single, noble ideal with a supporting platform of staunch individualism, in spite of what today's crop of myth-makers are pretending. No time to pontificate at length and in any case there's no point in lecturing history to a history expert. :)

This wave of sentimentalism around the confederacy is just cultural indoctrination around the fiction of a glorious past.

Jonathan Dresner - 2/5/2004

I just re-read Article IV ( and I'm having a hard time figuring out how the Defense of Marriage act, at either the state or federal level, is not a blatant violation of that provision. The article doesn't give Congress the right to abrogate full faith and credit, only to regulate it in "general." I honestly can't see how "public acts, records, and judicial proceedings" can be construed to exclude marriage, adoption, inheritance, divorce....

There isn't much of a constitutional argument against gay marriage, that I've seen.

Oscar Chamberlain - 2/4/2004

You are absolutely right. A new amendment changes everything.

The federal law is more problematic. The Full Faith clause only mentions a role for Congress in establishing mechanisms for each state to know what the actions of another are.

One could argue that this limits the Congressional role to facilitating the states giving full faith and credit to each other and therefore excluding it from a more substantive role.

But since there is no overt exclusion of Congress, one could make a different argument.

But to do so requires finding a different power that allows Congress to limit full faith and credit. For states rights conservatives, it might seem challenging to do so without limiting the power of states in other ways--or without opening a door to lots of contentious litigation.

One caveat about my expertise: I know the pre-civil war constitution much better, and I have not seen the latest constitutional arguments on the anti-gay marriage side.

Jonathan Dresner - 2/4/2004

If I'm reading your argument correctly (you're much more of a Constitutional scholar than I pretend to be), you're suggesting that the correct resolution to the problem is for the 14th Amendment and "full faith and credit" clauses to trump state's rights arguments in this instance because that's what they're designed to do.

I'm inclined to agree with you. But there's the matter of the Federal law, and the possibility of a constitutional amendment.....

Oscar Chamberlain - 2/4/2004

Like many people, I was startled by the Supreme Court's use of the 14th amendment in a gay rights case. It now occurs to me that moderate states' rights justices may see this as a practical way to avoid a train wreck. One with the laws opposing gay marriage on one train and the "full faith and credit clause" (Article IV, section 1) on the other.

If the 14th amendment does not apply in a substantive way, then there would be judges and justices attempting to balance the state's rights position that the states can regulate morality with the Article IV requirement (which is a considerable limitation on states' rights)

Also, the result would be a hodge podge of decisions that would interfere with contracts, the movement of people across state lines, and make even more chaotic the questions of custody. This is the sort of thing that most Supreme Courts in our history have tried to avoid.

If equal protection for gay unions is required, then many of these problems are avoided by weakening the states rights position in a fundamental way.

Moderate states' rights people might support this--grudgingly-- because it would narrow the limitation to the primary purpose of the 14th amendment, the protection of groups against state action. Therefore it would be less of an exception to the greater role of states' rights that the Court majority is carving out.

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