ABC news reported Tuesday that though New York state does not allow same-sex marriages, the courts are allowing the first gay divorce to proceed. (Technically, is this the first? Anybody know about the Massachusetts couple?)
In what appears to be the first ruling of its kind, a New York judge will allow a lesbian couple who married in Canada to sue for divorce.
Though New York does not allow same-sex marriages, a state trial court judge refused to dismiss a divorce and child custody suit brought by a woman, identified only as Beth R., against her former partner Donna M.
Follow me past the jump on why this case is good and bad for gay rights.
Good for gay rights because the case begins to set a precedent that relationships should be treated equally under the law. Supreme Court Justice Laura Drager said New York will not recognize an out-of-state marriage only if it is a) prohibited by a state law (it isn't, NYS being one of the few that don't have a "one man, one woman" law on the books) or b) "abhorrent to New York public policy." Drager said only polygamy and incest have been found to be abhorrent.
Yay, New York! Legally, our relationships are not abhorrent!
Sure, not the celebration of love I was looking for, but you have to start somewhere. And, as Susan Sommer of Lambda Legal (who is representing Beth R. in the case) said:
What this decision shows is that it is just as important for same-sex couples and their children to have the same access to divorce courts and the whole process that we have to unwind a relationship.
Very true. Now, the "bad for gay rights" side: one of the partners contested the right of the couple to be divorced. Donna M. and Beth R. were married in Canada in 2004. Donna M. is the biological mother of the couple's two daughters. Donna M. is the one arguing that they don't need a divorce because their marriage is invalid in New York state.
Donna M.'s attorney, Raoul Felder, said the decision ignores hundreds of years of state law and he will appeal. "She wants to change the law," he said of Drager.
I have two words for you, Donna and Raoul: NOT COOL.
Yes, ending a relationship is difficult, especially when it involves children. But that is no excuse to say the relationship didn't exist in order to try and gain advantage in the legal system.
Anybody remember the Vermont-Virginia custody case? Lisa and Janet had a Vermont civil union, then a baby, then the Vermont dissolution of their civil union and Vermont shared custody agreement. In that case, Lisa--the biological mom--had moved to Virginia with the kid and claimed sole custody. She even claimed she was no longer a lesbian. But the Virginia higher courts ruled that lesbian or no, Virginia would honor the Vermont custody agreement.
Why? Because, luckily, the courts in Virginia and New York recognized that even though their respective state legislatures had not sanctioned the marriages, the children produced by those marriages needed to be protected, and that both biological and non-biological parents deserve to remain parents, even after divorce.
It's one thing to fight a custody battle with an ex because he or she truly is an unfit parent for one reason or another. If the only way to protect your kids and keep them safe is to deny the other parent visitation, then I say fight like hell. But that doesn't seem to be the issue here. The issue seems to be solely that they're lesbians.
Lesbians (and gays, for that matter) don't become parents accidentally. It's a lot of work, which presumably both Donna and Beth agreed to. And for Donna to deny their life as partners and parents together--as part of a legal ploy--really sucks.
I wonder if the ruling would have been the same if not for the custody element. Isn't it ironic that a same-sex divorce case may open more people's eyes to the need for same-sex marriage?