On June 24, 2011, New York became the latest state to legalize same-sex marriage.  When clerks across the Big Apple and Hudson River valley begin issuing marriage licenses on July 24, New York will join Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont as states recognizing marriage as a civil liberty that must be granted equally to gay and straight couples alike. Same-sex couples can also find their wedded bliss in Washington, D.C. and on the sovereign land of the Coquille Indian Tribe in Oregon. 

Civil rights advocates across the country are cheered by the development, which took a bipartisan effort in the New York state senate to pass. Opponents to same-sex marriage vow to continue the fight and see the New York law as a relatively minor setback. 

Each of the remaining forty-four states has a law related to same-sex marriages. Nineteen states ban all types of same-sex unions by constitutional amendment. Other states allow civil unions or domestic partnership, but constitutionally ban same-sex marriage. A handful of states ban same-sex marriage by statute rather than constitutional amendment, which is more easily changed by the legislature.

This troubles me. While I favor universal marriage equality on moral and ethical grounds, as someone with a legal education, I am also troubled by the murky legal morass created by the patchwork rights system currently in place.

Imagine the following scenario: You and your partner of many years finally decide to tie the knot. Your families rejoice. The nuptials are beautiful, the entree delicious, the flowers expensive. Six months later your partner, after years in the same industry, loses his job, another victim of a bad economy. After months of searching, he finds a new one. It’s for less money and longer hours, but it is better than nothing, and that’s important right now, because you have recently been blessed with a child. The job is in another state, which means you’ll have to move.

If you’re a straight couple, this means a hassle – putting your house on the market, finding a place in your new location, packing and shipping, saying goodbye to friends and family. One thing you don’t have to worry about? If the state you are moving to will refuse to acknowledge that you and your partner have a legally binding marriage, and therefore deny you all the rights and privileges you've take as given as a married couple.

Unless you are moving between the five states that allow same-sex marriage or D.C., your only other options are California and Maryland, which recognize same-sex marriages even though they do not allow same-sex marriage themselves. Alternately, you can move to one of the handful of states that allow civil unions or domestic partnerships, but that means more paperwork and fees, work that no opposite –sex couple would ever have to contemplate.  So if you're happily married in Vermont and the new job is in Virginia, do you move?  

This is a question with constitutional implications as old as the original document itself.  The motels along interstate highways that refused to let rooms to blacks.

More conservative jurisprudes point to such cases as examples of judiciary power run amuck. I, for one, disagree.  The scenario above demonstrates how inequity can actually hurt interstate commerce and introduces unnecessary confusion and anxiety into the market by discouraging qualified workers from taking jobs in states where they are unsure their marriages will carry the weight of the laws that allowed them.  Rights as fundamental as access to your partner in a hospital emergency room or the ability to inherit their property should not hinge location within one country. It also creates a nightmare for couples who marry and then choose to divorce; most states that ban same-sex marriage recognition cannot allow same-sex couples to separate based on these same laws.

Some might argue this means the federal government needs to ban same-sex marriage nationwide to remedy these murky interstate legal issues. Any savvy student of American legal history would disagree.  Martin Luther King, Jr. once remarked, “The arc of the moral universe is long, but it bends toward justice.” The arc of American jurisprudence follows a similar trajectory, which is in keeping with our fundamental commitment to freedom and equality.  In honor of our founders and their fight for independence, take a moment to put yourself in the shoes of the hardworking same-sex couples across the U.S.  If you do, you will find the only solution is marriage equality for all.

Images from Creative Commons, courtesy of JMacPherson.