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Will the proposed amendment to Arizona’s Constitution to ban same-sex marriage change the treatment of existing marriages in which one partner transitions?

Recently, on one of the Arizona trans-related Yahoo groups that I belong to, one member stated her belief that the proposed constitutional amendment to ban same-sex marriages in Arizona, known as Prop 102, would change the law so that “[e]xisting marriages involving a transsexual could easily be nullified.” (The proposed amendment states, “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.”) Here is my response:

I disagree. Prop 102 will have no more, and no less, effect on marriages in which one partner transitions after marriage than the existing statute.

That statute (ARS 25-101(C)) states, “Marriage between persons of the same sex is void and prohibited.” There is no material difference, from a legal standpoint, between a statute, or constitutional amendment, one of which says same-sex marriages are void and the other of which says that only marriages between a man and a woman are valid. Both have the same potential to invalidate existing marriages in which one partner legally changes her or his sex, if the courts choose to recognize that change for purposes of marriage, thus rendering the marriage an illegal same-sex marriage. (Note that, this is not the approach the courts in Kansas and Texas took. Those courts refused to recognize a legal change of sex for purposes of marriage. Under those rulings, a marriage in which one partner legally changes sex after marriage would continue to be valid. As noted below, however, I know of no cases in which that holding has been extended to pre-existing marriages, rather than marriages in which the partner transitions prior to marriage as were involved in those cases.)

In either case, any attempt to declare an existing marriage that was legal at the time it was first entered into, void because one partner transitions would face significant problems under the due process and equal protection clauses of the federal constitution, which always trump state law. There is a long line of cases saying that, as long as a marriage was legal when and where it was entered into, then it remains valid until and unless the partners legally divorce. That’s why people did, and still do, go to Las Vegas to get married instantly and can go back to their home states and have their marriages treated as valid, even though their home state would have imposed additional requirements, such as a waiting period or a blood test. It’s also why first cousins from Arizona can travel to a state where such marriages are legal, get married, and return to Arizona and have their marriage recognized as valid, even though Arizona law says that marriages between first cousins are “void and prohibited” (ARS 25-101(A)), which is the same language used in the ban on same-sex marriages.

The validity of existing marriages in which one partner transitions after marriage hasn’t been resolved anywhere in the U.S., at least, as far as I know, but there is no reason to think that such marriages are any more, or any less, at risk under Prop 102 than they are under existing Arizona law. Nonetheless, I think that anyone in such a marriage needs to be aware of the risk that their marriage might be challenged at some point, and take precautions, e.g., mutual wills and medical directives, to ensure that, if that happens, they will not lose all of the rights and benefits they expected to receive from being married.

Cross-posted from my personal blog.