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Should gay marriage be legal everywhere??

November 17, 2011 - Andrea Johnson
California's state supreme court just ruled that backers of a ballot initiative banning gay marriage have standing to defend it in court even if the governor and attorney general refuse to do so. What does that mean? A longer fight over whether gays can marry in that state and probably a longer national debate.

Back in 2008, California voters approved Proposition 8, which bans gay marriage. It had been briefly legal in that state before the ballot measure was passed. A federal trial judge struck down the law in August 2010, ruling that it violated gay Californians' civil rights, and it has been in the court system ever since. The governor and the attorney general have refused to appeal the decision. The people that supported the passage of Proposition 8 are asking the 9th Circuit Court to reverse that ruling and restore the ban on gay marriage.

Nationwide, gay marriage is currently legal in six states: Massachusetts, New Hampshire, New York, Vermont, Connecticut and Iowa as well as in Washington D.C. and in Oregon's Coquille and Washington state's Suquamish Indian tribes. It is illegal everywhere else, including in North Dakota. The federal Defense of Marriage Act forbids it from being recognized by the federal government.

Personally, I think it is probably inevitable that gay marriage will eventually be legal in all 50 states and the Defense of Marriage Act will eventually be ruled unconstitutional by the U.S. Supreme Court. But in the meanwhile, there are some real messes caused by the discrepancy between state laws and state and federal laws.

Gays who are legally married in Massachusetts are still treated as single on their federal tax returns and in other areas of their lives.

The patchwork of laws regarding same sex marriage also has had enormous potential to mess up lives, particularly in child custody cases. Exhibit A is the long running custody battle over 9-year-old Isabella Miller-Jenkins. Her biological mother, Lisa Miller, conceived her via artificial insemination by an anonymous sperm donor. Miller had entered into a civil union with Janet Jenkins in Vermont prior to Isabella's birth and so Jenkins was legally considered Isabella's other mother.

It got more complicated when Isabella was 17 months old, when Lisa Miller split up with Jenkins, moved back to Virginia and became an evangelical Christian. Gay marriage is illegal in Virginia and Miller used the courts there to prevent Jenkins from having contact with Isabella. Eventually, after years of court battles and Miller's adamant refusal to permit visitation or to acknowledge Jenkins as the little girl's other mother, Virginia and Vermont courts and the U.S. Supreme Court all agreed that Jenkins was the legally recognized other parent of Isabella. Jenkins was ultimately awarded sole custody of the girl in January 2010.

But by that time Miller had fled the country with Isabella in September 2009, four months before the custody change was ordered. They were last known to be in Nicaragua. The feds charged the Mennonite pastor who allegedly helped them flee the country with aiding and abetting a kidnapping, but dropped the charges when he agreed to cooperate with prosecutors. So far there's no indication that the federal government will be able to force Lisa Miller to return with her daughter to the United States or that they even know where they are.

If all state and federal laws had been the same regarding same sex marriage, much of the turmoil that young Isabella has lived with might have been prevented. If it was illegal everywhere, Jenkins would never have been able to press her case for custody. If it was legal everywhere, Miller might have had to give in sooner, before she took her child out of the country. Instead, the laws let the case drag on and on. There are similar, ongoing child custody cases between same sex couples all over the country.

What do you make of the ongoing discussion over gay marriage?


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