A Messy Game of Twister

By Laurie Carlsson

Right hand on New York, where you and your same-sex partner have decided to get married. Left hand on Washington State, where you will reside afterward, and where your union will be considered a “domestic partnership.” Left foot on the federal government, who will recognize neither your marriage, nor your domestic partnership, but will expect you to file your taxes with your partner, without elucidating how you will do this in the absence of a check box that applies to you. Right foot on Kansas, where you and your partner may end up on a road trip one day. If your partner is unlucky enough to be hospitalized during your trip at a hospital that doesn’t receive Medicare or Medicaid funding, you will not have the right to be with your hospitalized loved one.

As laws are beginning to reverse and shift and propel us toward an inevitable state of nationwide equality, LGBTQ citizens have been thrown into a murky sea of nuanced rules and regulations that would make the most type A individual beg for mercy.

You can now get married to your same-sex partner in 6 states. But what happens if the relationship goes south, after you and your partner do? Think Texas will grant you a divorce, even though it doesn’t recognize same-sex marriage? Attorney General Greg Abbott has one word for you: NO. He’s intervened in two same-sex divorces, claiming in the most recent that “In this instance there was no valid legal marriage recognized by the state of Texas,” and adding, “Texas can't have a faulty precedent on the books that validates an illegal law.” A judge rejected Abbott’s arguments in a same-sex divorce case last October, but the state has filed an appeal in an attempt to overturn the divorce.

I know what you’re thinking: Surely you can just fly back to the state in which you were married in search of a divorce? Nope. New York’s same-sex marriage law does not require residency to wed, but the state does require residency of at least 90 days to obtain a divorce. Even if you’re a full-fledged resident of the state of New York, things may not be so simple. Under New York law “premarital contributions” to property and other assets are not considered in the process of divorcing. Many couples who are about to tie the knot in the newest state to jump on the equality bandwagon have been creating lives together for ten or twenty years. Will the court treat same-sex divorces differently because of this fact? It’s really anybody’s guess.

Further confusion came out of a California bankruptcy court last month, where same-sex partners Gene Douglas Balas and Carlos A. Morales were challenged by the United States Trustee when they filed for joint bankruptcy. The judge found the law to be unconstitutional in an opinion that was signed by 20 federal bankruptcy judges. In what’s being deemed a “surprising move,” the justice department filed an appeal that basically said that though they had made a previous decision not to defend DOMA they were instructing all government agencies to continue to comply with it. Does the term “cognitive dissonance” come to anyone else’s mind?

Exciting, but also completely baffling news came last Saturday when the Justice Department filed a strongly worded brief, urging the U.S. Appeals Court in San Francisco to find DOMA unconstitutional, a mere five days after filing of the appeal in the bankruptcy case.

Does your brain need a break? Yeah, mine too. To recap: Your same-sex relationship will look different in nearly every state you enter, all the way across America. And the Justice Department thinks that DOMA is unconstitutional; except when it doesn’t.

Perhaps there’s a better game to compare with the mystifying maze that the gay and lesbian community is navigating. Ready to Legal Limbo? How low can you go?