Published: 03.03.2004
By Scott Simonson
ARIZONA DAILY STAR
When University of Arizona law students started discussing marriage in family
law class this semester, simple-sounding questions collided with complicated
reality.
"We began the class by asking, 'What is marriage?' and 'Who can get married?'
" said law student Meg MacDougal. "And we started studying that topic
the day San Francisco started issuing marriage licenses."
It seems that the whole nation, not just her fellow students in Law 612, is
asking about families and marriage, said MacDougal, who is president of the
Pride Law Alliance, the UA law students' gay and lesbian student advocacy group.
Changes to marriage laws in Massachusetts or elsewhere pose questions that Arizona's
legal system will have to answer.
Will Arizona recognize gay marriages from other states? Can those couples file
joint returns on their income taxes here? Can those couples divorce here?
"What we have is 50 jurisdictions trying to figure out what role gays and
lesbians are going to play in society," said Robert Glennon, Morris K.
Udall Professor of Law and Public Policy at UA's law school.
The United States historically has embraced states' differences in laws about
families, Glennon said. Allowing states to differ creates a laboratory in which
public policy solutions can be tested, he said.
Here are some legal questions Arizona might face after gay marriages take place
in Massachusetts or elsewhere.
Q: Must Arizona recognize other states' gay marriages as valid here?
A: Under the full faith and credit clause of the U.S. Constitution, Arizona
recognizes marriages from other states.
However, Glennon said, constitutional law also says Arizona doesn't have to
recognize out-of-state legal decisions that violate Arizona policy.
Arizona law says that "marriage between persons of the same sex is void
and prohibited" and that the state doesn't recognize marriages that it
doesn't permit here.
So the answer is "no," Arizona doesn't have to recognize other states'
gay marriages, Glennon said.
At least one local expert disagrees: Amelia Craig Cramer, a deputy county attorney.
Cramer helped file the lawsuit that led to Vermont's civil-unions law while
she was executive director of the Boston-based Gay and Lesbian Advocates and
Defenders.
Other states' gay weddings may go against Arizona policy, but Arizona can't
refuse to recognize them if that creates a policy that is found to be illegitimate
or illegal, Cramer believes.
"Here, the policy interest is illegal," Cramer said, "because
it violates equal protection and due process."
Since the Constitution trumps state law, Cramer said, gay marriages should be
recognized here.
Q: Can Arizona recognize another states' marriage laws without changing its
own laws?
A: The state already does this, Cramer said. Marriage between first cousins
in Arizona is illegal in most cases, she said, but Arizona recognizes other
states' marriages between first cousins.
Q: What's the difference between a marriage and a civil union?
A: The only state that allows civil unions is Vermont. Civil unions are available
only to same-sex couples; the state's law reserves marriage for heterosexual
couples.
Under Vermont's law, civil unions are supposed to be equal to marriages. In
the eyes of federal law, civil unions don't count.
A gay couple joined in civil union can file jointly on their Vermont state income
tax form, but must file two federal tax returns.
Q: Would a gay married couple be allowed to file jointly on their Arizona income
tax return?
A: "Chances are they would not," said Dan Zemke, spokesman for the
Arizona Department of Revenue.
Arizona law specifies that a husband and wife can file a joint return, Zemke
said.
Q: Will gay or lesbian couples legally married in other states be able to divorce
here?
A: Probably not, said Robert Barrasso, a Tucson divorce attorney and member
of the Family Law Executive Council of the Arizona State Bar.
"I believe that because of our divorce statutes and our definition of marriage,"
a gay or lesbian married couple seeking a divorce would hear, "You don't
have access to our laws," he said.
Q: If a gay or lesbian couple can't divorce, who decides who gets the car or
the contents of a joint bank account?
A: If the couple can't decide or show written proof, the courts probably will,
Barrasso said.
If a husband and wife buy a car, each spouse owns half, according to Arizona
law. Without state law to help gay and lesbian couples divide property, Barrasso
said, couples may be left to sue each other and let a court decide, unless they've
meticulously maintained written contracts.
Q: Would a constitutional amendment affect Tucson's domestic-partner laws?
A: That depends on the wording of the amendment, Cramer said.
She said that based on the proposed wording that she saw, the amendment would
wipe out laws guaranteeing domestic-partner protections, in Tucson and elsewhere,
for couples of all sexual orientations.
Q: What if a child custody or support dispute arises between a gay or lesbian
couple who had been married?
A: State law isn't geared to handle this question yet.
Custody and support decisions rest heavily upon who the birth parents or "biological
contributors" are, Barrasso said. Gay or lesbian parents may be neither,
and resolving issues of what's best for a child and what rights parents have
may require guidance from the Legislature.
° Contact reporter Scott Simonson at 573-4104 or at simonson@azstarnet.com.
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