Friday, July 10, 2009

Washington DC recognises same-sex marriages

Washington DC has recognised same-sex marriages performed in other states. It's not much, but its a definite move in the right direction. With more and more states and countries legalising same-sex marriage, and the US's high level of interstate mobility, there are more and more couples who are legally married but whose marriages are not recognised by their local jurisdiction. This in turn creates an unrelenting pressure, if not for performing same-sex marriages, then at least recognising those conducted legally elsewhere. And that pressure has just gone federal, with Massachusetts filing a federal court case challenging the US Defence of Marriage Act (which bars federal recognition of same-sex marriages) in order to defend the rights of its citizens to receive federal assistance. This one will go all the way to the Supreme Court, and if it succeeds, then at the minimum the US government will no longer be able to treat married gays as unpeople.

Which raises the question: why haven't we done the same? While the Civil Union Act allowed foreign civil unions to be recognised by regulation, there is no provision for recognition of foreign same-sex marriages, as the government refuses to recognise them purely as a matter of public policy. That position is morally unsustainable, and given its discriminatory nature, may be legally unsustainable. More importantly for this discussion, it is practically unsustainable. With more countries allowing same-sex marriage, it is only a matter of time before a Canadian, Dutch or South African same-sex couple moves here and then needs to get divorced, or one party dies causing legal hassles over succession, which means the courts will have to make a decision - and given the requirement to interpret through the lens of the BORA, the expansiveness of New Zealand family law and the precedents in this area (see the discussion here [PDF]), that is likely to be for some form of recognition simply to avoid the practical problems. The government's refusal to recognise is thus simply putting off the problem, while unfairly dumping the costs on the parties in the eventual test case.

Of course, the easiest way to recognise foreign same-sex marriages under New Zealand law is simply to legalise them here. But I think that's still a few years off. And until it happens, we are going to face a legal problem, unless the government legislates to fill the gap.