Analysis Human Rights

The Quiet Fight for Same-Sex Divorce

Tara Murtha

Many thousands of same-sex couples have gotten married in the United States; as a simple fact of modern life, a good number of them will get divorced. But many couples are finding that they're “wedlocked”—they got married in a state where same-sex marriage is legal, but either live in or moved to a state where the practice is banned, and therefore cannot get a divorce.

Kim Stephan and Kate Peck spent a recent evening in the living room of their cozy home in Philadelphia reminiscing about the night they got engaged. Peck was a smooth operator: She invited Stephan to what she claimed was an exclusive Moby concert at a local concert hall, but there was no concert. Stephan was confused, at first, when she walked into the dark empty room. But then a spotlight clicked on, illuminating Peck, standing on stage dressed in a suit, a bucket of ice chilling a bottle of champagne at her feet. Peck didn’t even have to ask the question. Stephan said yes.

Like all same-sex couples in Pennsylvania who want to get married in their home state, Stephan and Peck are anxiously awaiting the day the state overturns its ban on same-sex marriage. Pennsylvania formalized its ban in 1996 when, in the wake of the federal government’s passage of the Defense of Marriage Act (DOMA), it amended its Family Code:

It is hereby declared to be the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth.

Advocates believe it’s only a matter of time before the ban is overturned; there are currently three key cases seeking to make that happen. In Philadelphia, a U.S. District Judge will weigh the “marriage recognition” issue in May. Meanwhile, the American Civil Liberties Union has filed a federal lawsuit on behalf of 21 residents, alleging that Pennsylvania is violating residents’ Equal Protection Clause of the 14th Amendment; that case is will be heard in Harrisburg in June. A third case, in state court, involves 28 residents who obtained wedding licenses from D. Bruce Hanes, the Montgomery County clerk who briefly became a national media sensation after granting 174 wedding licenses to same-sex couples last year, until the state demanded he cease and desist.

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Stephan and Peck look forward to getting married, but they’re also waiting for the ban to be reversed for another important, though less-discussed, reason: Legal gay marriage means legal gay divorce.

Even though they broke up, Stephan and her ex, Grace (not her real name), got married in New Hampshire. Their marriage is legally recognized in 17 states, the District of Columbia, and, since a critical portion of DOMA was knocked down, in the eyes of the federal government. But that marriage can’t be dissolved in Pennsylvania, because Pennsylvania doesn’t recognize same-sex marriage, not even to grant a divorce. In order to get divorced, then, either Stephan or Grace would have to move to a state willing to grant them a divorce, which all have residency requirements. Neither is willing to move, because both women have jobs, and lives, in Pennsylvania, not to mention shared custody of a child.

It’s a situation that advocates call “wedlocked”—when a same-sex couple has gotten married in a state where same-sex marriage is legal, but either live in or move to a state where the practice is banned, and therefore cannot get divorced.

The Same-Sex Divorce Boom

Some 50,000 same-sex couples were married by 2011, and—as a simple fact of modern life—many of them will get divorced.

“It’s not a subject that marriage-equality groups tend to trumpet on their websites, but gay couples are at the start of a divorce boom,” declared a 2013 article in New York magazine. A year later, even as the subject of same-sex marriage makes daily headlines as the country inches toward marriage equality, same-sex divorce does not get a lot of airtime.

Angela Giampolo is a Philadelphia-based attorney who focuses on LGBT issues. She estimates that at least 100 people in same-sex marriages have contacted her trying to figure out how to get divorced. “And that’s just the people who didn’t know any better and came to me asking [about it],” Giampolo told Rewire. “[Then] there are all the people who are fully aware that they are wedlocked, and can’t do anything about it.”

Tiffany Palmer is also an attorney working on same-sex marriage issues. She has represented at least 20 clients. “We’re advising people to move to other states,” Palmer said. Clients have moved to New Jersey, Maryland, and New York.

Palmer points out that recent laws that are generally considered a positive step forward in the fight for same-sex marriage equality negatively affect couples who are wedlocked.

“Since the decision in Windsor“—the landmark 2013 Supreme Court case that struck a central portion of DOMA—it’s become an even more significant problem for same-sex couples,” Palmer told Rewire. It doesn’t help that the federal government recognizes same-sex couples for tax purposes when the couple is no longer speaking, or won’t agree on how to file, which can trigger an audit. The U.S. Department of Labor now recognizes same-sex marriage, which is great for couples with shared retirement plans, but terrible for wedlocked couples who can’t remove a beneficiary’s name from their paperwork without the beneficiary signing off, or via divorce proceedings.

The situation creates many overlapping legal, and emotional, limbos. Stephan says she tries to think of the situation as a paperwork problem, but Peck admits it bothers her. She shifts in her chair, facing Stephan. “I want to get married to you,” she says. “And I want to have that ceremony, and that part of the relationship happen.”

The Cartography of Divorce Equality

Right now, the nation has a state-by-state patchwork of partnership statuses, ranging from roommates to civil unions to marriage, all determined by geography. There’s a confusing patchwork of same-sex divorce laws, too, that shift as the marriage laws change. Navigating both requires patience, a map, and a good lawyer, because a lot is at stake.

For example, if a wedlocked man who can’t get divorced gets into an accident while visiting a state where his marriage is recognized, doctors may have to call his estranged legal partner regarding medical decisions. Similarly, if a wedlocked woman dies, a percentage of her property or other assets may have to funnel to the legal spouse, despite whatever instructions are outlined in a will.

And of course the situation is downright dangerous for anyone trying to leave an abusive partner.

Like most couples, Stephan and Grace say they didn’t think about divorce when they got married in New Hampshire in 2008. “Nobody told me” that divorce for same-sex couples can be so complicated, said Stephan. “And I didn’t think to ask.”

What’s more, it’s unclear if it’s technically accurate to say the couple got married in 2008. Stephan and Grace participated in a civil union ceremony in 2008; in 2010, a marriage certificate showed up in the mail.

“It said, ‘Congratulations, you’ve been upgraded to marriage,’” said Grace. “’If you don’t want this, please respond, but consider yourself married.’”

New Hampshire isn’t the only government that has mailed out similarly worded, opt-out “upgrades” as categories of partnership have shifted with the law. Stephan shrugs. “I thought, ‘Well, it doesn’t matter here [in Pennsylvania].’”

And practically speaking, it didn’t: They still had to pay a lawyer to manually replicate many of the legal benefits that come automatically with marriage, especially since they raise a son together. However, the automatic “upgrade” mattered a lot when the relationship fell apart.

Ironically, Pennsylvania’s stubborn refusal to acknowledge same-sex marriage is the mechanism forcing same-sex couples to stay married. Pennsylvania could, like Wyoming, not allow same-sex marriages while enabling residents who got married in other states to divorce. But Pennsylvania, the only state in the Northeast that doesn’t allow same-sex marriage and where there are few legal protections for LGBT individuals in general, takes the position that granting same-sex divorce means acknowledging same-sex marriage. Like the Family Code spells out, such relationships are simply “void.”

Like many couples, Stephan and Grace didn’t realize same-sex divorce didn’t exist in Pennsylvania until they tried to get one. Then they figured maybe they could go to New Hampshire to get divorced. But New Hampshire, like almost all states that recognize same-sex marriage, has residency requirements that mandate people live in the state for a specified period of time before a divorce can be granted. Most states that grant same-sex divorces have residency requirements ranging from six months to one year, and many have quirks that vary state-to-state.

Delaware and California, for example, will allow you to file for divorce, but only if you were married there, and if your home state won’t do it. Vermont has the same rule, but only if the couple doesn’t have children.

“People have suggested that I pay rent [for an apartment in New Jersey] for a full year, just so I can get divorced,” said Stephan.

Besides being expensive, falsifying residency in an other state is illegal, though people desperate to end their marriages have been driven to do it.

Instead, Stephan is going to wait for Pennsylvania law to change.

The best bet for Pennsylvania couples who want their equal marriage to mean equal divorce seems to be tying the knot in the District of Columbia. D.C. will dissolve a same-sex marriage for couples who got married there if the couple lives in a state that will not do it.

Stephan and Peck say they advise friends considering getting married to head to D.C. “It’s the gay pre-nup,” joked Stephan.

Even then, though, there are limits to what a court can do in that kind of situation, warns Joyce Kauffman, an attorney based in Massachusetts who specializes in family law and LGBT issues. “Even if you can dissolve the legal relationship and actually get divorced, that court, in another jurisdiction can not make orders about your children, because they don’t have jurisdiction over your children,” she said

Meanwhile, polls show that the majority of Pennsylvanians approve of same-sex marriage. They’re ready to move on. Stephan, Peck, and Grace—and no doubt hundreds of other same-sex couples in the state—are ready to move on, too.

News Health Systems

Anti-Choice Group Files Lawsuit Over Newly Signed Law That Protects Illinois Patients

Michelle D. Anderson

The policy, which is an amendment to the Illinois Health Care Right of Conscience Act, requires physicians and medical facilities to to provide patients upon request with information about their medical circumstances and treatment options consistent with "current standards of medical care," in cases where the doctor or institution won’t offer services on religious grounds.

CORRECTION: This piece has been updated to clarify the scope of SB 1564 and which groups are opposing it.

A conservative Christian legal group has followed through on its threat to use litigation to fight against a new state policy that protects patients at religiously-sponsored hospitals in Illinois.

The Alliance Defending Freedom (ADF) on Friday filed a lawsuit in the Circuit Court of the 17th Judicial Circuit in Winnebago County against Illinois Gov. Bruce Rauner and Bryan A. Schneider, the secretary of the Illinois Department of Financial & Professional Regulation.

Rauner, a Republican, signed the contested policy, SB 1564, into law on July 29.

The ADF, which warned Rauner about signing the bill in a publicized letter and statement in May, filed the complaint on behalf of several fake clinics, also known as crisis pregnancy centers. These included the Pregnancy Care Center of Rockford and Aid for Women, Inc. Anti-choice physician Dr. Anthony Caruso of A Bella Baby OBGYN—also known as Best Care for Women—was also named as a plaintiff.

“Alliance Defending Freedom is ready and willing to represent Illinois pro-life pregnancy centers if SB 1564 becomes law,” the group said in May. The ADF wrote on behalf of several anti-choice groups, claiming SB 1564 violated the Illinois state law and constitution and risked putting federal funding, such as Medicaid reimbursements, in jeopardy.

In February 2015, state Sen. Daniel Biss (D-Skokie) introduced the policy, which is an amendment to the Illinois Health Care Right of Conscience Act.

The revised law requires physicians and medical facilities to provide patients upon request with information about their medical circumstances and treatment options consistent with “current standards of medical care,” in cases where the doctor or institution won’t offer services on religious grounds.

The new policy also gives doctors and medical institutions the option to provide a referral or transfer the patient.

Unlike an earlier version of the legislation, the version passed by Rauner does not require hospitals to confirm that providers they share with patients actually perform procedures the institutions will not perform; they must only have a “reasonable belief” that they do, Rewire previously reported.

As previously noted by Rewire:

Catholic facilities often follow U.S. Conference of Catholic Bishops religious directives that generally bar treatments such as sterilization, in vitro fertilization, and abortion care. The federal Church Amendment and some state laws protect these faith-based objections.

The plaintiffs, which are also being represented by Mauck & Baker LLC attorney Noel Sterett, argued in a statement that the Illinois Constitution protects “liberty of conscience,” and quoted a passage from state law that says “no person shall be denied any civil or political right, privilege or capacity, on account of his religious opinions.”

Illinois Right to Life and the Thomas More Society joined the ADF in protesting the bill. The Catholic Conference of Illinois (CCI) and the Illinois Catholic Health Association (ICHA) initially protested the bill after it was introduced early last year. However, the two groups later negotiated with the ACLU to pass a different version of the bill that was introduced.

In support of the bill around the time of its introduction in early 2015, the American Civil Liberties Union of Illinois pushed its Put Patients First initiative to help stop the use of religion to deny health care to patients. The advocacy group noted that patients who are miscarrying or facing ectopic pregnancies, same-sex couples, and transgender people and persons seeking contraception such as vasectomies and tubal ligations are particularly vulnerable to these harmful practices.

A new study, “Referrals for Services Prohibited in Catholic Health Care Facilities,” set to be published in Perspectives on Sexual and Reproductive Health in September, suggested that Catholic hospitals often “dump” abortion patients and deny them critical referrals as result of following religious directives outlined by the U.S. Conference of Catholic Bishops (USCCB).

Recent figures from an ACLU and MergerWatch advocacy group collaboration suggest Catholic hospitals make up one in six hospital beds nationwide.

Culture & Conversation Human Rights

Two Years After Darren Wilson Killed Michael Brown, Police and the Media Need to Do Better

Jenn Stanley

"There are systems in place that are attacking our communities," explained Tara Tee of Hands Up United. "A lot of the things we’re doing is just rebuilding and creating plans to sustain, so that whatever this gap is doesn’t occur again.

It’s been two years since since Darren Wilson, a white police officer, shot and killed Michael Brown, an unarmed Black teenager, in Ferguson, Missouri. Caught on camera, the murder sparked weeks of demonstrations and protests, to which police responded with tear gas and rubber bullets. It garnered national attention and made Black Lives Matter a household hashtag.

Tara Tee is a Black woman from St. Louis. At the time, she was working as a project manager at a corporate tech job, but she knew she couldn’t sit back and watch.

“We’d be out in the streets until four or five in the morning. Then I would go home and try to sleep for a couple of hours and then get up at eight in time for work,” Tee recalls.

She said she noticed children as young as 10 were joining in on the protests, yelling and asking for answers, and she realized that though they wanted to be involved, the community lacked the resources to educate and organize them. So she and a group of other engaged community members and activists founded Hands Up United, a grassroots organization dedicated to “fulfilling the political void that remains from the historical archives of the Black Power Movement.”

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Tee currently serves as the director of the organization, where she puts a lot of her efforts into its Tech Institute, which teaches coding to 16-to-30-year-olds in the Ferguson/Greater St. Louis area. Hands Up United also hosts Freedom Flicks, a free social justice film series; Books and Breakfasts; and the People’s Pantry. After the organization’s efforts to get people voting in local elections, St. Louis elected its first Black circuit attorney. Tee says her day-to-day is always different, sometimes meeting with community leaders, or running the organization’s programs and events, but that her main objective is always to help rebuild her community, which she says has been broken by systemic racism.

RewireHow did you get involved with activism? And how did Hands Up United get started?

Tara Tee: I don’t necessarily consider myself an activist. I just consider myself a person who understands there are systems working against Black folks in America. I decided to do something about it, which I think most people should do in some way or another.

I went outside once I heard that the police in Ferguson had murdered someone and left his body out in the street for four-and-a-half hours, and all of the horrors that followed, including his mother not being able to approach the body, dogs being called into the neighborhood, dogs being allowed to urinate on his memorial. Just beyond the murder, everything that followed stripped someone’s humanity. It stripped humanity from Mike Brown, from his parents, and from the community.

As a Black woman in St. Louis, there’s no way that I could have not gone out to see, support, talk to, and love on people, and to let the state know that this is not OK. I just felt like it was something I had to do and there were many other people who felt the same way.

The birth of Hands Up United I would say was pretty organic, and it was a situation where it was like building the car while you’re driving it. We were out and doing things and making moves but we were just out because that’s what we felt like we needed to do. It took a while but we realized we needed to create programs to bring political education to the community.

We started thinking about, what does it look like to put something behind the nighttime action and being out in the street? What does it look like to create something that is sustainable, that is going to make a greater impact? Not that being in the street doesn’t make an impact. You and I wouldn’t be talking right now if we had not taken to the streets. You would not know Mike Brown’s name if we had not taken to the street. We have multi-level problems and we need to use every tool that we have to try to dismantle these things that aren’t working for us.

Rewire: What is Hands Up United’s mission?

TT: We’re basically just striving for the liberation of Black and brown people through education, art, advocacy, and agriculture. These are all things that are very important to us because they are all the things that are tied to these systems that are harming our communities.

Everything that we do is going to have a political education component to it, and it’s going to have an art component to it. We’re just trying to build community again. There are systems in place that are attacking our communities. A lot of the things we’re doing is just rebuilding and creating plans to sustain, so that whatever this gap is doesn’t occur again. So that, for example, the next time our neighborhoods are flooded with drugs the same things don’t occur. We ask kids to support Black businesses so that we can have a Black Wall Street, but they’re not teaching that history in school. So you’re asking someone to fathom something that they’ve never seen or heard about. So it’s important for us to create spaces and share knowledge that we have about things that are going on.

RewireIt’s clear that Hands Up United deals mainly within the community. Are you affiliated with the Movement for Black Lives, and do you think the work that’s being done nationally is helping on the ground?

TT: We support them, obviously, because our missions are similar. We’ve just picked up the fight of our ancestors. These are some of the same things that we’ve been fighting for for many, many years at this point. If you review their platform, anybody that’s for community would be for these things. It’s very similar to the ten-point platform that the Black Panthers had. These are basic rights that people shouldn’t be having to draw attention to, or be asking for. We shouldn’t have to demand basic human rights.

We are aligned with a lot of the initiatives of the Movement for Black Lives. We work with and know a lot of those folks and organizations that do very good work. We’ve worked closely with some of them, and we are in community with them for sure. If any of them call and need anything we’re coming.

But I also don’t like the whole labeling of things because it creates false narratives and problems. As far as the media is concerned, any person who is Black and has ever attended a protest is Black Lives Matter, or if they’re not they’re the Movement for Black Lives. So my stance and the stance of my organization is that we are for and with Black people, so whoever is trying to push the ball forward for Black people, that’s who we’re with.

RewireAs we approach the second anniversary of Michael Brown’s murder, what, if anything, would you say has changed?

TT: I would say nationally there’s more awareness regarding situations that are plaguing us, and these situations run the gamut from police brutality, to excessive lead in water, to food deserts, to inferior education systems.

We get the information relatively quickly when something occurs. Before, people affected were like, I don’t know if I should share this. I don’t know if anyone cares. Now people don’t hesitate to share these things, and spread this information.

So awareness, both nationally and locally, is increased. But on the ground, there’s still very much racial profiling, there’s still predatory policing, there’s still ticketing and fines aggressively directed toward poor people. We’re still seeing problems with voter rights. And so when I look at what has honestly changed—not much.

RewireHow do you think the media is doing covering what’s happened in Ferguson, and with other instances of police brutality against Black people?

TT: On a national level, I feel like it’s, for the most part, just propaganda. And then on the local level, for the most part, journalism here isn’t even journalism. There’s no investigative reporting. And so many of the stories start or end with “according to police,” or “the police said,” and it’s just like, well are you just sitting in the newsroom waiting for the police to fax over the story that you should print?

Ida B. Wells said the people committing the murders are the ones writing the reports. So it’s important to understand that the majority of the news that we are getting from the mainstream is generally not the real news.

We need nationwide media literacy. Why do [outlets] always put up a mugshot of the victim and not the cop or vigilante that shot them? It’s just not good reporting that is happening. There are some people who are doing really good work, but on the mass scale there’s just not good reporting happening.

Editor’s note: The above conversation is a lightly edited transcript of an interview between Rewire and Tara Tee ahead of the second anniversary of Michael Brown’s killing. Hear more from Tee via SoundCloud here.

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