Monday, June 25, 2007

Under the Radar – Same-Sex “Marriage” via Same-Sex “Divorce”?

The following is taken from "Constitutionally Correct" the official blog of the Alliance Defense Fund:


Under the Radar – Same-Sex “Marriage” via Same-Sex “Divorce”?

A few years back, the debate over same-sex “marriage” was on every television set, at every dinner table, on every political show, and on the tongues of most Americans. Starting a wave of legal and political activity, on November 18, 2003, the Massachusetts Supreme Judicial Court redefined marriage to include same-sex couples. Most legal scholars will never forget where they were, or what they were doing, when they first heard about the Massachusetts ruling. The same stands for this writer. Though battles on marriage had previously been fought, the war on marriage had begun. The next few years saw an unprecedented flurry of nationwide political, legal, and legislative activity on a single subject–marriage. The end result? Hundreds of court battles, ballot initiatives, and legislative enactments later, barring a few exceptions, the states have pretty much marked their “marital” territory.

The laws are now set and everyone knows who is who and what is what, right? Not so fast . . . From a nationwide standpoint, though the movement to redefine marriage was soundly defeated, do not think or believe that the proponents have tucked their tails and crawled away. On the contrary, advocates of redefining marriage have apparently learned a lesson the hard way. They now seem to understand that their full frontal assault on the marriage laws is not a winning approach.

The forces to redefine marriage are now operating “Under the Radar” attempting to dismantle marriage brick by brick, and very quietly. How then does one dismantle law, precedent, and history quietly? Very simple–have no opposition. Since same-sex “marriage” advocates have been largely unsuccessful winning their courtroom battles when opposed, they have cleverly designed court battles without opposition–same-sex divorces. Like many uncontested divorces, same-sex divorces carry a common theme with both parties wanting the same thing, that being out of the marriage. Additionally, uncontested divorces are oftentimes granted without a formal court hearing and, in many instances, without the judge seeing one or both of the parties. Again, very quietly. In legalese, this absence of conflict is noted as the absence of a case or controversy. With no case or controversy, and both parties wanting the same thing, there’s nobody to stand in the way of granting a same-sex divorce. This strategy is being played out right now in a couple of states.

In O’Darling v. O’Darling, a lesbian couple “married” in Canada applied for a divorce in Oklahoma using only their first initials on the pleadings. This ensured that their case would remain “Under the Radar” and not identified as a same-sex divorce. It worked. Later, the judge learned that the parties were a same-sex couple and vacated the divorce decree sua sponte. However, the lesbian couple has now appealed the judge’s ruling to the Oklahoma Supreme Court and, in its list of issues, is expressly challenging the constitutionality of Oklahoma’s Marriage Amendment. The lesbian couple is currently unopposed in their appeal efforts and, though the Oklahoma Attorney General has a right of intervention and is aware of the case, he has thus far refused to officially intervene and defend Oklahoma law. Thus, the lesbian couple, “Under the Radar” and completely unopposed, now sits before the Oklahoma Supreme Court challenging the constitutionality of a marriage amendment passed by 76% of Oklahoma’s voters.

To use a crude sports analogy, this is the functional equivalent of a football team making it to the Super Bowl via a series of forfeits. As it presently stands, the O’Darling Super Bowl may also result in a forfeit, default, or landslide victory.The consequences of the Oklahoma Supreme Court granting a same-sex divorce in O’Darling would be devastating. In order to grant a dissolution of the marital contract, the court must first recognize that a valid contract exists. This type of recognition would result in a declaration, either directly or indirectly, that both Oklahoma’s Marriage Amendment and DOMA are unconstitutional. With that ruling, hello same-sex “marriage” in Oklahoma! In other words, contrary to the voice of 76% of Oklahomans, with the help of only two women, and the Attorney General on the sidelines, Canadian law would rule "The Sooner State!"

Moreover, is it actually possible to have a divorce before a marriage–the marital version of what came first, the chicken or the egg? If the O’Darling case remains on its present heading, that’s exactly what may happen.

Published Wednesday, June 20, 2007 8:11 AM by Austin Nimocks
About Austin Nimocks: Austin R. Nimocks serves as senior legal counsel at the Alliance Defense Defense Fund.


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