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Gay marriage: trying to untie the knot in Arizona

 

Arizona’s gay-marriage ban is making life as difficult for those who want to cut the knot as those trying to tie it.

Two women in Tucson who were legally married in California are fighting in court about the effect Arizona’s one-man and one-woman definition of marriage has on their split and child custody rights.

And on Aug. 13 in a separate case, the Arizona Court of Appeals ruled that a transgender man is entitled to get a divorce in Arizona from his wife even though he kept his uterus and bore children with her.

In the first case, Suzan McLaughlin notified the Arizona Legislature and Attorney General’s Office on July 30 that she has alleged the state’s same-sex marriage ban is unconstitutional. The notice provides the state and lawmakers the opportunity to join the case as interveners or as friends of the court.

Suzan McLaughlin is trying to get a divorce and stop her former partner, Kimberly McLaughlin, from getting an annulment in order to get custody rights through the divorce that wouldn’t be available from voiding the marriage.

Suzan McLaughlin has asked the court to recognize the Full Faith and Credit Clause of the U.S. Constitution, which provides that states recognize legislative acts, public records and judicial decisions of other states.

Suzan McLaughlin contends that Arizona should recognize the California marriage for the purpose of the divorce, rather than voiding the marriage under Arizona’s gay-marriage ban.

A spokeswoman for the attorney general, Stephanie Grisham, said state attorneys haven’t decided yet whether to intervene.

An attorney for Suzan McLaughlin, Amy Wilkins of Phoenix, declined comment because large parts of the case are sealed and the parties are under a gag order. Kimberly McLaughlin’s attorney, Lisa McNorton, did not immediately return a call seeking comment.

A matter of parental rights

Court documents provide a glimpse into the facts and legal issues.

The women were married in California in 2008 and decided to rear a family, but Suzan McLaughlin was unable to carry a child, so Kimberly McLaughlin carried a baby to term.

The baby boy was born in 2011 and both women signed a parenting agreement. Suzan McLaughlin came home one day to find her partner and the boy gone.

Kimberly McLaughlin is seeking to void the marriage because Arizona doesn’t recognize same-sex marriages,” according to a court document.

Wilkins wrote in response to Kimberly McLaughlin’s petition for an annulment that the issue in the case is whether Suzan McLaughlin has any rights to the child. An annulment has the effect of the marriage never existing, but a divorce would consider parental rights.

“If the annulment is not dismissed, respondent (Suzan McLaughlin) loses any possible option for relief,” Wilkins wrote.

William Knight, who is on the legal team of a group of same-sex partners trying to have Arizona’s same-sex marriage ban stricken in federal court, said the Full Faith and Credit Act argument Suzan McLaughlin is pursuing has been interpreted as not applying to licenses from other states.

Knight said no one who is fighting same-sex marriage bans is raising the claim under Full Faith and Credit because they think the marriage from the other state would be treated as a license rather than a judicial proceeding.

But he said he still thinks the argument could gain traction in the McLaughlin case under a 100-year old case involving statutes outlawing inter-racial marriages.

Suzan McLaughlin also claims that Arizona’s ban is illegal under U.S. vs. Windsor, a 2013 U.S. Supreme Court decision that voided provisions of the federal Defense of Marriage Act, which forbid the federal government from recognizing same-sex marriages performed in states where they are legal.

The ruling has since led to changes in various laws and regulations entitling legally wed gay couples to things like being able to file joint federal tax returns or receiving survivor benefits.

“Windsor and the rulings made by various states in light of it, stands for the proposition that gays and lesbians should have the same rights under the law as their straight neighbors and that it is unconstitutional to deprive some married couples of their rights while protecting others,” Wilkins wrote.

Caleb Dalton, an attorney with Alliance Defending Freedom, a conservative group that has fought in court to keep the same-sex marriage bans in other states intact, said Windsor was limited to the specific issue of whether the federal government could refuse to recognize some state marriages and not others.

“Any notion that Windsor would support the imposition of one state’s view of marriage, like California’s view, on another state like Arizona is just a misreading of Windsor,” Dalton said.

Defining a heterosexual couple

The other divorce case involves Thomas and Nancy Beatie.

Thomas was born a female and underwent medical procedures toward changing his sex.

He obtained an amended birth certificate after getting what Hawaii required: an affidavit from a doctor testifying that psychological and medical testing determined his “true gender” to be male. He also went through some surgery to change his appearance.

He then married Nancy in Hawaii at a time when that state only recognized heterosexual marriages.

Now living in Arizona, the couple petitioned for divorce. But Maricopa County Superior Court Judge Douglas Gerlach said he could not legally do so because Thomas had retained the ability to bear children and, in fact, gave birth to three following his marriage because Nancy could not.

The Arizona Court of Appeals said the only relevant fact for an Arizona judge to consider is whether the state that solemnized the marriage recognized the spouse as male. And in this case, they said, Hawaii did issue him an amended birth certificate, making his genital structure irrelevant.

The ruling also affects similar marriages performed in Arizona.

Judge Kenton Jones, writing for the unanimous appellate court, said it would be a constitutional violation for Arizona to fail to accept Hawaii’s decision that this was a heterosexual couple.

But the court made it clear that it was not saying that same-sex couples legally married elsewhere could seek a divorce in Arizona.

Jones said he and his colleagues are constrained by existing state laws that limit marriage here to one man and one woman. And that also means Arizona need not recognize the marriage — or handle the divorce — of same-sex couples married in other states.

Jones said that decision was wrong.

He said Thomas had complied with Hawaii laws and was “legally considered male.” And Jones said Thomas did not hide his transgender status from Hawaii officials.

Potentially more significant, Jones noted that Arizona, like Hawaii, has a procedure for an amended birth certificate. And he specifically pointed out that neither state requires require anyone to undergo specific surgical procedures — or agree to forego procreation — to have his or her gender changed.

Jones said that leaves only the matter that Arizona has a law which requires this state to recognize marriages legally valid where performed, with the sole exception of same-sex weddings.

— Howard Fischer of Capitol Media Services contributed to this report

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