Guess Who's Coming to Dinner?, 0514 SCBJ, SC Lawyer, May 2014, #4

Author:Tom Rubillo
 
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Guess Who's Coming to Dinner?

Vol. 25 Issue 6 Pg. 36

South Carolina Bar Journal

May, 2014

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Tom Rubillo

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0One fine mess

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0On the final day of its 2012-13 term, the U.S. Supreme Court issued its ruling in U.S. v. Windsor.[1] By a 5-4 vote, it found the federal limit on "marriage" to unions between "one man and one woman as husband and wife" to be constitutionally impermissible. That definition had appeared in Section 3 of the federal Defense of Marriage Act [DOMA].2 [2]

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0DOMA's definition matched the universal qualifier found throughout federal law.3 Because it did, the immediate effect of the holding was to extend 1,000 or more federal benefits to single sex couples married in jurisdictions officially licensing their unions. Some $363,000 in federal estate taxes were at stake in the case.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Windsor left for another day the question of whether same-sex weddings had to be licensed on request nationwide. It did so by way of this brief aside:

"DOMA contains two operative sections: Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States."4

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Unchallenged, Section 2 of DOMA remains in effect. This continued vitality leaves several important federal constitutional questions for future litigation. Those are not discussed here. That same provision creates, and leaves unanswered, important state law questions too. Some of those are the subject of this article.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Conflicting laws

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0At the time the Supreme Court published its opinion, 12 states and the District of Columbia had approved same-sex marriages. That tally has since climbed to 15, with additional legislative initiatives and court actions addressing the subject pending elsewhere.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In South Carolina, the state's constitution prohibits the practice.5 Giving life to that prohibition, the S.C. Code places strict limits on "Persons who may contract to matrimony" by saying that "[n]o man shall marry ... another man" and, further, that "[n]o woman shall marry ... another woman."[6]

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0So there will be no mistake, the S.C. Code goes on to proclaim that "[a] marriage between persons of the same sex is void ab initio and against the public policy of this State." 7

... by the power vested in me by the State of....

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0More than a century ago, the U.S. Supreme Court ruled that "[t]he whole subject of the domestic relations of husband and wife, parent and child, belong to the laws of the states and not to the laws of the United States."8 The only exception was announced in Loving v. Virginia in 1967.9It held that "[u]nder our Constitution, the freedom to marry or not to marry, a person of another race resides with the individual, and cannot be infringed by the State."10 As Loving makes clear, the right to choose a spouse is an ancient right belonging to the people that is protected by the 10th Amendment. State and federal governments cannot interfere with that right.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Advocates of same-sex marriage hope this principle of freedom of choice will be applied nationwide to their unions. Opponents urge the contrary. This article does not address that dispute either.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0More to the point here is this: We live in a highly mobile society, one in which people "married" in one state are free to move to any other. [11] Many do just that. This sort of interstate migration ordinarily is a good thing. But it can quickly become problematic where, as here, fundamental laws of sister states come into direct conflict. In those circumstances an important, very practical question arises: Just what should a South Carolina lawyer say to a transplanted prospective client whose foreign "same-sex marriage" is falling apart?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Looking for love in all the wrong places

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Breaking up has always been hard to do. More often than any rational person would want, domestic violence is the cause. In reaction to that grim reality, South Carolina has enacted its "Protection from Domestic Abuse Act." 12

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In a nutshell, the Protection from Domestic Abuse Act authorizes the family court13 to evict violent "household members" from the home, ban unwanted contact by the assailant, grant use and possession of vehicles and other property to the victim, award temporary child custody, order the payment of child and/or spousal support and the like.14 Among other consequences, abusers can lose their right to own or possess firearms.15

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0While intended to be comprehensive in its approach to domestic violence, the Act excludes same-sex domestic couples from its protection. It does this by limiting the "household members" it protects to spouses, former spouses, persons who have a child in common, and/or "a male and female who are cohabiting or formerly have cohabited." 16

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0On its face, while South Carolina's domestic abuse law protects straight couples who shack up, it does not offer similar coverage to homosexual couples who do much the same. (It also offers no protection to parents, grandparents, relatives, in-laws, roommates or others who are abused by another person living under the same roof.) Those situations are left to the discretion of law enforcement (or, when it comes to children and " vulnerable a dults," the Department of Social Services) for remediation.17

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0On the other hand

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The twists and turns of this particular legal incongruity do not stop there, however. To explain:

If an abused partner of a same-sex relationship flees to South Carolina from another jurisdiction with a foreign "order of protection" in hand, our courts are obliged to help.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Uniform Interstate Enforcement of Domestic Violence Protection Orders Act18 mandates enforcement of all otherwise valid foreign restraining orders in domestic abuse cases.19

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0By definition, this interstate compact extends coverage to "protected individual [s]" from abusive "respondent[s]" named in any out-of-state "order of protection." Neither the gender nor sexual preferences of individuals protected by an out-of-state order are mentioned in the law and, therefore, are irrelevant to mandated enforcement.20

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The interstate compact's requirements are straightforward. To be entitled to full faith and credit, a foreign order for the protection must (1) identify both the "protected individual" and the "respondent," (2) be currently in effect, (3) have been issued by a tribunal that had jurisdiction over the parties and subject matter under the law of the issuing state at the time it was signed, all provided that (4) basic procedural due process requirements have been met.21

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In short, while the law offers protection from home grown abuse to anyone with a foreign court order, it does not do the same for many native South Carolinians who have been victimized in their own home and who are in need of protection, a troubling double standard.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Divorce

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Conundrums arising in the wake of the Windsor decision are not limited to instances of domestic abuse.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Half of all modern heterosexual marriages end in divorce. Similar numbers of homosexuals will undoubtedly experience similar disappointment with their pairings.22] Inevitably, some "married" same-sex couples will want to divorce. Those who have relocated to South Carolina will seek legal advice and assistance here. What to tell them?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0At first glance, it seems as if South Carolina's family courts lack jurisdiction to grant divorces from same-sex marriages. According to South Carolina's version of the Defense of Marriage Act, same-sex marriages are "void ab initio and against the public policy of this State."23 That being the case, since there is no valid marriage in the first place, there can be no divorce in the second. Concluding the contrary would be an implicit recognition of the validity of the marriage in the first place, something the Constitution and statutes of South Carolina refuse to do.24

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Aiding and abetting that argument is Section 2 of the federal DOMA that was left intact by the U.S. Supreme Court in Windsor. Section 2 exempts South Carolina (and every other non-homogenized state) from recognizing or giving full faith and credit to unisex marriages performed under the laws of any other state. Again, without a marriage there can be no divorce.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0But the law need not be read so narrowly. There may be (at least) two ways to "divorce" same-sex couples in the family courts of South Carolina.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0One approach would be to seek an annulment of an out-of-state "marriage" by relying on the family court's jurisdiction for that cause of action. 25

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The basic argument goes something like this: Same-sex marriages are against the public policy of this state and, therefore, are void under South Carolina law. By operation of law, therefore, same-sex marriages of other jurisdictions automatically dissolve upon entry into this state and can be annulled (declared to be null and void) by the courts of this state upon request...

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