Experts Disagree On Consequences Of California Same-Sex Marriages

To pro-family advocates it was a decision that could undermine marriage laws from Oregon to Ohio, Michigan to Mississippi. To gay rights activists it was just one more step in a march toward equal rights. To lawyers, judges and state officials it was the beginning of a potential bureaucratic headache.

But as scores of same-sex couples flock to California to wed, it is clear celebration will turn to concern when those couples return to their home states with their Golden State marriage license in hand and attempt to avail themselves to the benefits of marriage.

"It is a travesty," stated Deborah Hamilton, spokeswoman for the Pennsylvania Marriage Coalition.

"It is definitely going to impact every state in the U.S. that does not have laws protecting marriage.

Conservative groups like the Pennsylvania Marriage Coalition fear gay rights activists will return from California and mount an orchestrated litigation campaign to overturn marriage laws in other states, thus using the court system to redefine marriage to include same-sex couples. While states have attempted to prevent such a scenario, Mrs. Hamilton is doubtful any law or state constitutional amendment could withstand an assault from a politically motivated judiciary.

"The Defense of Marriage Act (DOMA) can be overturned by one judge," argued Mrs. Hamilton. DOMA, which was approved by Congress in 1996, holds a state does not have to recognize the marriage of same-sex couples even if the marriage is recognized by another state. It also prohibits the federal government from recognizing same-sex marriage.

After Congress passed DOMA, a vast majority of states followed in the federal footsteps passing similar measures. But DOMA is not immune to a court challenge, as the California Supreme Court held the state's DOMA unconstitutionally violated equal protection rights when it struck the law down and legalized same-sex marriage.

Thirty-seven states, however, have gone one step further and amended their state constitution's to define marriage between one man and one woman and Arizona, California and Florida have constitutional amendments on the 2008 ballot. But such an amendment could also be potentially stricken by a federal judge.

And now with California recognizing same-sex marriage without requiring a residency component like Massachusetts, the issue becomes what will happen when same-sex couples get married and return home?

In Pennsylvania, as with other states, such a situation will have nothing to do with getting a Pennsylvania marriage license, but will most likely occur when resident same-sex couples attempt to receive a marriage benefit from the state or an employer.

According to Caren Martin, an attorney with Philadelphia County's Marriage License and Record division, "The only function of marriage license bureau to issue license in Philadelphia County." County clerks have the obligation in making sure those applying for marriage license in their respective county meet Pennsylvania's requirements and do not concern themselves with the requirements of other jurisdictions.

Furthermore, the Register of Wills Web site explains an out of state marriage, same-sex or opposite sex, "will never be registered in the Commonwealth of Pennsylvania, or by any County of the Commonwealth."

Rather, a copy of the marriage license will be needed by the out-of-state married couple "for Social Security purposes and perhaps your employer." The legal battle, therefore, will occur when same-sex couples attempt to claim a marriage right - such as those related to tax, estate planning, medical visitation, adoption, custody, and government benefits -traditionally bestowed to only opposite sex couples.

Because the Full Faith and Credit Clause of the U.S. Constitution requires states to give "Full Faith and Credit ... to the public Acts, Records, and judicial Proceedings of every other State," same-sex couples could argue Pennsylvania is required to recognize their California marriage license and confer the benefits of marriage to them, regardless of state law.

The reality of such a wide-spread litigation campaign was not lost on ten state attorney generals who petitioned the California Supreme Court, unsuccessfully, to stay its decision pending the outcome of the state's vote on the constitutional amendment this November. If California voters approve the amendment same-sex marriages would be banned, once again, in California causing greater confusion as to what to do with the already issued marriage licenses and creating a jurisprudential headache.

"It is not surprising that news media in each of our States report on not a few resident same-sex couples who intend to go or are seriously contemplating go to California to marry, if and when the remedy in [the California marriage case] becomes effective, and then returning home," the brief explained. "We reasonably believe an inevitable result of such 'marriage tourism' will be a steep increase of the recognition issue in our courts."

"The court has not only ignored the will of the people of California, it has imposed years of legal chaos quite possibly on the entire nation, Alliance Defense Fund attorney Glen Lavy said after the court denied the stay. "By one vote, the court deafened its ears to millions of California voters and pleas from state attorneys general nationwide to avoid the potential of nationwide legal turmoil."

One civil rights expert, however, argued all the talk about a state-by-state take down of traditional marriage laws is more rhetoric than reality.

"The changes in California or not going to have any more of an impact in Pennsylvania than the changes in the marriage laws of Massachusetts; or the civil union laws of New Jersey," stated Mary Katherine Roper, a staff attorney with the American Civil Liberties Union of Pennsylvania. The civil rights advocate stressed the sky did not fall when Canada legalized same-sex marriage or when Vermont created a comprehensive civil union structure. Mrs. Hamilton disagreed.

"People who think judicial assault is not going to affect them are wrong," stated Ms. Hamilton. The pro-family advocate contends gay rights groups are preparing a litigation strategy and it will impact the marriage laws and benefits in Pennsylvania and other states. Experts Disagree On Consequences Of California Same-Sex Marriages
Evening Bulletin - Philadelphia,PA,USA