EDITORIAL: States and same-sex marriage

The wedding bells seem to be chiming non-stop in California these days as same-sex couples from all over the country flock to altars to be “married,” but it turns out that the state’s new gay-marriage law is merely a partial victory for homosexuals.

The problem is that only 10 states recognize gay marriage in some form — be it marriage, civil union or domestic partnership. Massachusetts passed a law in 2004 that gave state-residing same-sex couples the right to wed, while California’s legalization of gay marriage on May 15 permits any couple — resident or not — to be married.

Connecticut, Vermont, New Jersey and New Hampshire have created legal unions that, while not called “marriage,” are defined as offering all the rights and responsibilities of marriage under state law to same-sex couples.

Maine, Hawaii, the District of Columbia, Oregon and Washington have created legal unions for same-sex couples that offer varying subsets of the rights and responsibilities of marriage under the laws of those jurisdictions. Same-sex couples seeking to return from California “weddings” to the remaining 40 states, however, will find it next to impossible to obtain the same legal rights and benefits of heterosexual couples. Meanwhile, by means of the Defense of Marriage Act (DOMA), the federal government does not acknowledge same-sex marriages from any state.

DOMA was passed in 1996 and declared that “no state need treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.” The act also states that the federal government “may not treat same-sex relationships as marriage for any purpose, even if concluded or recognized by one of the states.” In short, DOMA gives states the right to reject a couple seeking to be registered within the state.

Likely areas of contention for same-sex couples returning from California weddings could include inheritances, medical decision-making, health and pension benefits, and child custody.

This has already proven to be an issue in a number of cases, especially for Andrea Joseph. She and her partner, Dee, had a domestic partnership in New Mexico where they resided. They went on vacation together to Cancun when Dee died suddenly of a heart attack while snorkeling. When the U.S. consular office did not recognize Andrea as Dee’s next of kin, Andrea had no rights when she sought to return her partner’s body to the United States.

There is less concern regarding health and pension benefits because many employers already permit employees to obtain benefits for their same-sex partners. But there is no law mandating that a company do so; it is left to the discretion of each employer.

Gay-rights groups are discouraging couples from filing lawsuits as they return to their home states with expectations of recognition and rights. Rights activists fear that a case could wind up in the hands of the U.S. Supreme Court — which could lead to a federal ban on gay marriage in all states.

Because California ruled that providing marriage licenses to same-sex couples is a matter of discrimination, many couples now have legitimate grounds on which to file a lawsuit in another state in an attempt to receive the same right. Yet gay- rights activists equally fear that a ruling by the high court could turn against them.

So, while it may sound nice for same-sex California couples to walk down the aisle to the tune of the recessional “Wedding March,” they will be holding tight to a mere partial legal victory.