New York has recently passed legislation legalizing same sex marriages. Governor Cuomo, who has spear-headed this effort, has signed the legislation. The law in New York will allow any one, even if they are not residents of New York, to legal same sex marriages in New York. New York is now joining other states, including Iowa, Vermont, New Hampshire, Massachusetts, Connecticut and the District of Columbia, which allow and have legalized same sex marriages. In addition, New York and Maryland recognize same sex marriages from other jurisdictions.
What would this legislation mean in states that do not recognize same sex marriages such as Michigan, where I practice family law?
I would like to discuss several scenarios. First is a same sex couple from Michigan who go to New York, have a marriage that is recognized in New York and then come back to Michigan. Will it be recognized in Michigan? Under the law in the state of Michigan, probably not.
The second scenario is the same situation, but now the couple who resided in Michigan, were married in New York and want to end their relationship. Here in Michigan they have no valid marriage. The question is can you argue that Michigan must give full faith and credit to the laws of New York and therefore, if they file an action to dissolve the marriage through a divorce should they be able to do so in Michigan?
My arguments would be that Michigan courts would not allow this and they would have to proceed through some other cause of action. Over the years of my practice I have handled dissolutions of same sex relationships where there has been a commitment ceremony and I have filed a civil action through either fraud or unjust enrichment as a way to give someone legal redress. This has been successful in Michigan.
The third issue is whether Michigan law will honor a New York divorce judgment where the parties were married in New York and divorced in New York, but now reside in Michigan. Under full faith and credit there are strong arguments that the judgment of divorce dissolving a valid marriage in another state even involving a same sex divorce should be recognized in Michigan. This has yet to be tested in Michigan, so it is unclear as to exactly what a court would do.
I believe that this is the beginning of a wave that should continue throughout the United States with more and more states recognizing same sex marriages as are other countries. It is time to recognize the fact that same sex couples should have the same rights as heterosexual couples. It is time to recognize the fact that gay and lesbian couples should be treated equally under the law.
Same sex couples should have the right to full benefits, the right to insurance, the right to fully contract, the right to adopt, as well as the right to obtain a divorce in the event that the same sex marriage or relationship fails.
Contrary to what many religious proponents say, this is not a matter of choice. It is not a matter of reconditioning someone psychologically. It is not a matter of belief or scripture. It is a matter of biology and heredity. It is a matter of science. These are some of my thoughts. What are yours?