Although Maine, Maryland and Washington state joining the growing list of states that allow same-sex marriage, there are still more than 30 states that have constitutional amendments banning marriage equality. Additionally, many states do not allow same-sex couples to adopt children.
And, because of the Defense of Marriage Act (DOMA), states do not have to acknowledge a couple's legal marriage or co-parenting status that another state granted.
This inconsistent treatment from state to state can sometimes result in devastating consequences. One group besides the LGBT community that sees these consequences play out up close every day are attorneys, particularly those who specialize in family law.
That is one reason the governing board of the American Academy of Matrimonial Lawyers (AAML) voted last year to publicly support gay marriage. As a result, the 1,600-member organization (with chapters in nearly every state) recently formed a LGBT/alternative family committee. It is charged with working with other committees within the organization as well as outside groups to create or improve laws that address the issues facing alternative families.
Out Michigan attorneys Richard Roane, a partner with the law firm Warner Norcross and Judd, and Connie Thacker, of Miller Johnson, have been selected to co-chair the organization.
Roane also serves as the president of the Michigan chapter of the AAML and serves as the Michigan delegate to the national board of governors. He has been a family law attorney for 25 years and is the first openly gay partner at Warner. He sees his work on the new committee as his first foray into activism and is excited by the prospect of the committee helping to make an impact on the national level.
The committee held its first meeting in Chicago earlier this month and began to outline its goals, which will be focused on advocacy and education.
"We talked about how we can collaborate within the organization, working with other committees, and with outside organizations," Roane said.
Internally, the committee expects it will work with the AMICUS and legislative committees, while externally it has compiled a list of possible partners in the marriage equality fight, including the Human Rights Campaign, Lambda Legal Defense Fund, ACLU, Freedom to Marry, National Center for Lesbian Rights and the National Center of Commissions on Uniform State Laws.
Roane pointed out that the portability of marriage license is a key issue for the committee.
He explained that when a couple gets married in a state that allows same-sex marriage, another state does not have to acknowledge the marriage. In fact, because so many states have banned marriage equality in their constitutions, those marriages cannot be legally recognized.
"The problem that we have with the country right now is that we have a patchwork of different laws in different jurisdictions that don't equally treat gay couples the same way," Roane said. "We don't have that patchwork of laws that affect heterosexual couples across the country. They are all treated the same.
"For example, if you have a gay couple that gets married in New York and they don't end that relationship but they break up and then one of them remarries someone else and moves to Michigan, is Michigan going to recognize the first marriage, no. What if, as result of that first marriage under New York law that person is entitled to certain beneficiary benefits or certain inheritance benefits?
"Let's say that there was no new estate plan done. If one of the partners dies you could end up with a very complicated mess in probate court where things are contentious, and things are always contentious when people are fighting over their money, and what is divorce and probate about? Money. Who gets what they had. So you can end up with probate litigation in New York and in Michigan. You could have family members from all over the place, a great big mess, because of the patchwork of laws that unequally treat people throughout the country."
Roane believed that the problems created by this patchwork of laws are just beginning and complications will only grow without federal marriage equality.
Roane said it does not end with marriage licenses either, citing a Michigan custody case where a lesbian couple could not adopt as a couple in Michigan so they established residency in Chicago, adopted children, returned to Michigan. Then, after several years, their relationship ended. Because the couple legally were not seen under Michigan law as co-parents the custody hearing became particularly complicated, and Michigan ended recognizing and giving what is called "full faith and credit" to the valid adoption in Illinois. It then issued orders concerning custody.
These are just a few examples of what Roane has seen during his 25-year family-law career. He said that it has been very frustrating having to tell clients that they have little to no recourse when their deceased partners' families are trying to evict them from their home, or when their spouses who are seeking divorces have been the breadwinners for the decades they were together and are now trying to take all of the property and accumulated assets.
"If we have marriage equality, you are not going to have kids that were adopted ending up in two or three years of litigation with their parents, and that's good for children not to be in litigation," Roane said. "You are not going to have the guy who survived his partner's death and then got kicked out of the house he'd been in for 20 years."
Roane is optimistic that DOMA will be repealed.
"It's right to repeal a law at the federal level that purposely targets and discriminates against a huge class of people including a huge amount of children," he said. "For people who think that this doesn't affect families or you have a choice to decide who your spouse is going to be and if you want to choose a same-sex spouse live with the consequences, what about the children that are in the mix. They don't choose and these families do have children. There are many reasons to repeal DOMA and I am hopeful that Obama, being given a second chance, there is a lot that he can do and that he ought to do."
