Thursday, November 30, 2006

If your gay marriage breaks down, don't think about running with the kids

There's been a potential complication in the struggle of right-wing groups in the United States to stop gay and lesbian marriages and even civil unions. A court in of all places Virginia have said it doesn't matter whether they're illegal in that state; if a couple got united in another state Virginia must still honour that union as being valid and everything that flows from that -- including custody disputes from failed unions. This can only be seen as a huge defeat for the religious right and other socially conservative groups. Many states where the issue has been debated -- such issue mostly pushed by the right = have passed amendments to the state constitutions which not only ban such unions but also prohibit state courts from recognizing unions formed in other states.

Such laws, to be blunt, are a throwback to a time when most Southern States made it illegal for people of different races to marry. They too refused to recognize the legitimacy of interrace marriages from other states, so it was technically against the law for a black-white couple in, say New York, from going on vacation in Florida. The US Supreme Court said nearly forty years ago in Loving v Virginia ruled such laws violated the "Full Faith and Credit" section of the US Constitution. (This was a case where a Virginia couple got married in the District of Columbia, went back to live in Virginia, were arrested and ordered banished from the state for twenty-five years.) Article IV, Section 1 says a state court must recognize as valid a decision implemented by a court in another state. So if an arrest warrant is issued in, say, Kentucky, it's also valid in Tennessee and everywhere else in America. As far as marriage goes, "full faith and credit" means if you're married in one state, you're married in all fifty.

Fast forward to this week. WaPo reports that the Virginia Court of Appeals ordered the state to recognize as valid a child custody order emanating from the breakdown of a civil union in Vermont. The biological mother defied a ruling that said her partner in the failed lesbian partnership had equal rights as a parent and fled to Virginia -- a state which, as noted above, bans gay marriage -- hoping that would give her refuge. It did not, of course; and the court has ruled correctly that not only must the Commonwealth of Virginia force the natural mother to share custody with her former partner, but also the federal kidnappng law is applicable in this case since it makes no distinction between straight or gay parents.

This should serve as a reminder to gay and lesbian couples everywhere: If you want marriage, fine -- but you have to accept the responsibilities that come with it. A gay divorce is the same as a straight-sex divorce and you will not be able to forum shop. No doubt this is bound to be an issue as such marriages break down in Canada and our courts will have to sort out custody issues as well. The laws of equity should dictate in this case everyone gets fair treatment; but what must also be remembered is that the interests of kids from broken marriages must always take precedence over the selfishness of the parents -- regardess of what sex they are.

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