DOMA and the anti-marriage amendment, or; the problem with repealing Article IV of the Constitution

(This was originally published on Livejournal, 24th April 2006.)

Sooner or later, this will happen.

Albert and Brad get married in Canada. Brad is a US citizen with Landed Immigrant status in Canada. Albert and Brad adopt three kids (Ellen, Fergus, and Gloria) and run a business together: they have a structure of financial planning to support each of them and their children after the other one’s death, including pension plans, mutual survivor wills, life insurance.

Brad travels a lot for their business. Brad spent a lot of time in Virginia, setting up a branch office there. He had an affair with Caitlin, and married her: Caitlin and Brad have a child, Deirdre.

This marriage is legal (as far as Brad can find out from the Internet – he really doesn’t want to ask a lawyer) in the state of Virginia, which explicitly does not recognize any same-sex relationship in any way. It may be legal in the US, thanks to DOMA. It makes Brad a bigamist in Canada, but after all, he didn’t marry Caitlin in Canada. Caitlin knows Brad has to travel a lot for his job: Albert is appreciative that Brad does the long trips to Virginia without complaint.

Brad dies.

As far as Caitlin knows, Brad never made a will: but according to Virginian law, as his spouse, she inherits from him anyway.

According to the law in Canada, however, Brad’s marriage to her is invalid: she gets nothing.

Albert – once he recovers from discovering that Brad was a faithless lying scumbag who was leading a double life – is moderately inclined to let Caitlin have something, and his lawyer advises him that Deirdre, as Brad’s daughter, is probably entitled to be treated equally with Ellen, Fergus, and Gloria. However, under no circumstances is he prepared to let a stranger inherit Brad’s half of their business: their financial planning was all based around him and Brad controlling and running this business together.

Caitlin, discovering that under US and Virginian law she could be entitled to millions if she inherits everything Brad owned, is not inclined to settle: especially as (her lawyer tells her) she has a rock-solid case as Brad’s only legal spouse. She’s freaked to discover that Brad was a faithless lying scumbag who was leading a double life with a man, but cannot believe that any court would recognise Brad’s “gay marriage” as equal to his real marriage to her. She’s not about to acccept the “something” Albert offers: she wants what she’s legally entitled to, and she wants Deirdre to inherit Brad’s half of the business, not take a quarter-share after Albert dies.

That’s the situation. The Canadian courts are on Albert’s side; the US courts are required by DOMA (and, if Bush’s base get their way, the anti-marriage Amendment) to be on Caitlin’s side. The business is based in Canada, but has branches&c in the US.

If Albert were Alberta, Caitlin would have no case. If DOMA hadn’t partially repealed Article 4 of the Constitution, Caitlin would have no case. If the anti-marriage amendment is passed, Caitlin theoretically has a Constitutional case – but the Canadian courts have no reason to bow to the US. Does the US Supreme Court repeal DOMA, or offend Canada, or refuse to hear the case?

Sooner or later, this will happen.