Tuesday, June 7, 2011

Wyoming Supreme Court allows married same-sex couple to divorce

The five justices on the Wyoming Supreme Court ruled unanimously yesterday that a lesbian couple married in Canada could divorce in Wyoming. The opinion in Christiansen v. Christiansen reverses a lower court ruling that the couple could not divorce because Wyoming law prohibits same-sex marriages.

Paula and Victoria Lee Christiansen were married in Canada in 2008. Paula filed for divorce in February 2010. Wyoming has a statute defining marriage as between a man and a woman. The court defined the issue as "whether the fact that this is a same-sex couple strips the district court of the subject-matter jurisdiction it would otherwise enjoy to entertain a divorce proceeding." The court pointed out that Wyoming also has a statute saying marriages validly entered into in another country are valid in Wyoming. That rule, the court said, is not absolute because the state can find a marriage invalid if it is "contrary to the law of nature" or if it is a marriage "which the legislature of the state has declared shall not be allowed any validity." (Those quotes from an earlier court opinion.)

The court reconciled this "public policy" exception to recognizing foreign marriages by saying the following: "Recognizing a valid foreign same-sex marriage for the limited purpose of entertaining a divorce proceeding does not lessen the law or policy in Wyoming against allowing the creation of same-sex marriages. A divorce proceeding does not involve recognition of a marriage as an ongoing relationship." The court specifically noted that the couple was not trying to live as a married couple in Wyoming or "enforce any right incident to the status of being married."

This is a very interesting ruling. The appellant's brief says that the couple acquired real and personal property and debts during the marriage and asked the trial court to resolve those issues. Property division (and spousal support) are "incident to the status of being married." Also, the reasoning of the court could apply equally to any consequence of one spouse dying. So intestate succession, workers comp survivors benefits, and other benefits conferred on widows would also not involve "recognition of a marriage as an ongoing relationship."

Some Wyoming legislators tried to file a friend of the court brief in the appeal, with representation by the Alliance Defense Fund. The court denied, twice, motions to permit ADF lawyers to appear and to file the amicus brief. The pleadings, motions, and orders are available on the court's website and make for an interesting read. The court did not say why it denied leave to file the amicus brief, but the objection filed by the appellant's lawyers noted that the legislators and ADF were pursuing a "political agenda" that did not belong in the court. Given the interest that some legislators have taken in this issue, it is bound to come up again. Wyoming does not now have a constitutional amendment banning same-sex marriage or recognition of same-sex marriages from elsewhere.

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