It was bound to happen. As soon as discussion about gay and lesbian marriage equality was starting to feel pretty commonplace, it seems everyone is talking about gay divorce.
Fundamentally, I don’t believe my community will be any more fickle in marriage than any other group, and is bound to be far more devoted in marriage than, say, conservative male politicians.
But earlier this month, in a widely publicized case, a Texas judge decided that a gay couple living in that state who married in Massachusetts, could divorce in Texas.* The challenging of divorce laws is turning out to be a sort of back-door test of the “one man, one woman” marriage laws in various states.
And this morning brought the news that Rosie O’Donnell and wife Kelli Carpenter may be headed for divorce. Canadian lawyer Emma Ruby-Sachs wrote an opinion piece for the Huffington Post saying that their potential case should serve to remind us about the need for fair and just same-sex divorce laws.
O’Donnell and Carpenter were married in a high-profile ceremony in San Francisco just two weeks after Gavin Newsome gave the word that the city would offer same-sex marriage licenses. They were married by the city’s treasurer and highest-ranking lesbian official and serenaded by the San Francisco Gay Men’s Chorus (apparently was the lesbian chorus’ softball day).
I don’t know where O’Donnell and Carpenter, who have lived in Manhattan and Miami Beach among other places, might choose to divorce, but I’d like explain something about California law:
We’ve already got your gay divorce right here.
You see, one of the incredibly unjust things about California law is although we’re still fighting for the right to be truly married, with all that implies, since 2005 we’ve had to get divorced to get out of a domestic partnership. Married or DP’d, we all get to go through the same basic process.
Way back in 2003, then-Governor Gray Davis signed The California Domestic Partner Rights and Responsibilities Act of 2003 (or Assembly Bill 205) into law and a major shift occurred in the state legislature’s approach to domestic partnerships. Until AB-205 was passed, domestic partnership rights in California had been expanded in a piecemeal fashion. (Sort of what’s currently happening with the state’s same-sex marriage laws.)
AB-205 created the presumption that domestic partners have all of the rights and responsibilities afforded spouses under state law, with some notable exceptions (including the right to say “spouse,””marriage,” or be married in a legal wedding). It also, for the first time, recognized similar relationships, such as civil unions, created in other states. (California now recognizes marriages from other states as well.)
Under AB-205, domestic partners are financially responsible for each other, both during the relationship and after it ends. In other words, domestic partners are responsible for each others’ debts. For example, if one partner takes out a loan for a new car and fails to pay, the bank can pursue the other partner. In addition, if the relationship ends, a court treats the breakup just like a divorce.
These changes were broad and sweeping and affected existing domestic partnerships, therefore AB-205 wasn’t enacted until 2005. People in existing domestic partnerships were notified by mail about their changed rights and responsibilities. I remember several friends expressing some surprise. Some missed the point of the letter and were greatly surprised later when they dissolved their partnership.
After the enactment of the bill, California’s community property system began to apply to domestic partnerships. A partner is now automatically entitled to half the interest in any property the other partner purchases after they become partners. If the partners break up, all community property will be divided equally. The law also gives partners the right to use the court system to help divide any assets. Partners may seek alimony and secure any child support, if necessary, as divorcing married couples do.
Like divorce, these proceeding may be subject to mediation and/or litigation. There is a six-month wait for a final decree after the request for dissolution is filed.
Quacks like a duck. Walks like a duck. Sure sounds like divorce to me.
So consider the irony: In California, marriage equality has been in the forefront of the news for quite a few years. The state’s gay and lesbian residents have won the right to marry, and lost the right to marry.
I know Californians have a well-deserved reputation for being wacky, but this time we’ve really turned it upside down. We have the right to divorce and lots of legal structure to protect us in that. But we still don’t have the right to marry.
We can say “alimony” but not “spouse”. How fair is that?
*This reminds me of a quote from the first chapter of Thomas Wolfe’s 1929 novel, Look Homeward, Angel, where he refers to the timelessness of the human condition:
Each of us is all the sums he has not counted: subtract us into nakedness and night again, and you shall see begin in Crete four thousand years ago the love that ended yesterday in Texas.