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 Late last year, the National Equality March was held in Washington, DC to raise awareness for federal equal rights recognition from the US Government.
In the spirit of this event, it is worth taking a look at some US legal cases which have the potential to dramatically alter the recognition of gay marriage.
First up is a divorce case recently filed in Texas. At this point you might be asking yourself, ‘Wait a minute, I didn’t think those crazy Texans allowed same-sex marriages’. Well they don’t and therein lies the issue. The two men were residents of Massachusetts and became married while living there. Several years later they relocated to Texas and found themselves desiring to end their marriage. Since they are no longer residents of Massachusetts, they had to file their divorce in a Texas court.
At the preliminary hearing, Justice Callahan had every reason to dismiss the case on constitutional grounds under the recent Defense of Marriage Act passed in Texas, banning gay marriage. However, Callahan decided not only did she have jurisdiction to hear the matter, but stated in her decision that ban on gay marriage in Texas was unconstitutional under the 14th Amendment to the US Constitution. The matter is set to proceed in early 2010, and if it is upheld on what will more than likely be an appeal from the State Attorney General, then the Texas legislature will undoubtedly have to rethink its Defense of Marriage Act.
In New York, two cases are set to be heard in the New York Court of Appeals this year. Both will be challenging whether state and local governments in New York can recognise same-sex marriages solemnised in jurisdictions where such unions are legal. In 2006, the same court ruled that same-sex couples do not have a constitutional right to marry in New York as a result of their decision in Hernandez v Robles. The good news is that two of the justices who helped to decide Hernandez are no longer on the bench. With the injection of new faces, and hopefully a new perspective, we just might see New York recognise same-sex marriages from other jurisdictions, which should lead to the state legislature legalising gay marriages within New York.
For California, who has been embroiled in a power struggle on the issue, Governor Schwarzenegger in October 2009 signed into law SB 54. No doubt this is in response to the highly controversial Proposition 8 approved by voters in 2008, banning gay marriage. SB 54 provides for a middle-ground between gay marriage proponents and their detractors in two important ways. First, it declares same-sex marriages performed both inside and outside of California prior to the passage of Proposition 8 are legally valid in California. Secondly, it clarifies that same-sex couples who married in another state after 5 November 2008, must be given the same rights and benefits as opposite-sex spouses, although their unions will not be called marriages.
As we have seen, there are several big cases on the horizon in the US which have the ability to start a domino effect across the country in terms of recognising gay marriages performed in other states eventually leading to the legalisation of gay marriages within those states. With more and more dominoes falling, one has to wonder how long it will take before the US Congress will do the right thing and repeal its ban on gay marriage, and afford the same rights and benefits to gay couples as they do to straight couples. If the conservative US can recognise gay marriage, maybe Australia won’t be too far behind. |
