Weyrauch lecturer discusses same-sex marriage campaign
By Matt Walker
A “train wreck” is how Harvard Law Professor Janet Halley describes the legal regime prevailing for same-sex couples.
Until same-sex marriage is recognized and protected on a federal level, gay couples will continue to face potential legal complications due to varying degrees of recognition of civil unions and gay marriage from state to state, Halley said at the seventh annual Weyrauch Distinguished Lecture in Family Law.
In her Oct. 18 lecture, “Traveling Marriage: Why the Campaign for Same-Sex Marriage Cases Gets Marriage Wrong,” Halley discussed how relationships can be damaged and numerous legal problems can arise from the “flickering” of gay marriages.
“What happens with same-sex marriages and civil unions that are valid where formed, and they move to a DOMA (Defense of Marriage Act) state, is that they do what I call a flicker,” Halley said. “They are valid in one location and they are invalid in another location and will not be given legal recognition there.”
“The possibility that you’re forming a same-sex marriage in Massachusetts or some other state where it’s valid to do so means you’re handing over to your spouse the power to move to a DOMA state and do serious legal damage in the relationship because you can induce non-recognition of the relationship,” Halley said.
While states should recognized marriages formed in other states, some states use the Defense of Marriage Act to get around this by declaring same-sex marriages morally repugnant, she said.
Halley said ultimately same-sex marriage will need to be federalized to prevent these types of situations, but she said she’s not putting her hopes on the Supreme Court at this time because it is a conservative court that’s becoming even more conservative.
The current approach to gay marriage is heavily influenced by the traditional view established in the 19th century that marriage falls under status law, which reflects the will of the state, rather than contract law, which reflects the will of the parties, she said.
“My advocacy is that we should really look at marriage not as status, which is what you do if you’re going to constitutional court,” Halley said. “We should look at it as its effects. And we should be ready for a long, long haul of very painful flickering.”
Halley teaches courses in family law, comparative family law and sexuality, and legal theory. Her books include After Sex? On Writing Since Queer Theory, co-edited with Andrew Parker (Duke University Press 2011); Split Decisions: How and Why to Take a Break from Feminism (Princeton University Press 2006); Left Legalism/Left Critique, co-edited with Wendy Brown (Duke University Press, 2002); Don’t: A Reader’s Guide to the Military’s Anti-Gay Policy (Duke Univ. Press, 1999); and Seeking the Woman in Late Medieval and Renaissance Literature: Essays in Feminist Contextual Criticism, co-edited with Sheila Fisher (University of Tennessee Press, 1989). Her current projects include a handbook, What’s Not to Like about Sexual Harassment Law and a critique of the rules about sexual violence in war established by the ad hoc courts convened to adjudicate war crimes in Rwanda and the former Yugoslavia.
The Weyrauch Distinguished Lecture in Family Law was established in honor of Professor Walter O. Weyrauch, internationally known for his work in foreign and family law. Weyrauch joined the UF Law faculty in 1957 as associate professor. He became professor in 1960, was Clarence J. TeSelle Professor 1989-1994, and became Stephen C. O’Connell Chair in 1994 and distinguished professor in 1998. A reception will follow the lecture.