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Wyoming anti-marriage bill update

Timothy Kincaid

March 2nd, 2011

From the Star-Tribune

By a 31-28 vote, House members voted to accept a stripped-down version of House Bill 74 crafted by a conference committee on Tuesday. Conference committee members tore out all language on the two most contentious issues surrounding the bill – civil unions and court access for same-sex couples.

UPDATE: The bill died in the Senate 16-14

Which means that Wyoming law remains in limbo. Basically, there is no recognition of out-of-state marriages or civil unions, but Wyoming legislature still contains enough libertarian “western Republicans” that anti-gay legislation could not pass this year.

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Embarcadero
March 2nd, 2011 | LINK

The bill died in the Senate in a 14-16 vote after several procedural moves.

For now, we’re still the Equality state.

For more commentary and audio archives:

http://www.facebook.com/WyWatch.Watchers

embarcadero
March 3rd, 2011 | LINK

Wyoming law is not in limbo. The legislation is clear: legal marriages from other states and sovereign nations are recognized. Full stop.

Within a few weeks, the state Supreme Court will hear an appeal from two women in Lusk (Niobrara country) whose divorce petition was rejected on the grounds that same-sex unions are not permitted in Wyoming. In Wyoming, the state Supreme Court is the first and only court of appeal.

In February, the State Supreme Court refused to allow an attorney from the Alliance Defense Fund to file an amicus brief on behalf of 13 state representatives. The brief asked the Court to reject the appeal of the Lusk couple’s divorce case. While their tactic was foolish and easily rebuffed, the legislators’ motivations are simple and well known: the judge’s refusal to hear the case is clearly unconstitutional. Once the Supreme Court hears the case, all doubt will be removed and Wyoming will be in practice what it already is on paper: a state that recognizes same-sex marriages from outside its borders.

Timothy Kincaid
March 3rd, 2011 | LINK

Embarcadero,

Thank you for providing the hands-on background and perspective. One of the great things about blogs is that they are interactive and allow correction and supplementation from readers who may know more about a specific topic than an author.

But I do have to quibble with the “recognized. full stop” portion of your comment.

While the law may indeed require such recognition, the state’s executive is not enforcing such recognition, nor is likely to do so absent a judicial decision requiring him to do so. There is enough ambiguity to provide cover for failing to do so.

So regardless of the law, same-sex couples are not enjoying equality or recognition. But on the other hand, they cannot assume that their marriage or civil union is defacto dissolved.

So, for legal and other matters, they remain in limbo, neither recognized as married non clearly denied recognition. Let’s hope that you are correct that the Lusk case will resolve the ambiguity, but I don’t think that we can count on it necessarily providing a clear and concise final answer.

Embarcadero
March 3rd, 2011 | LINK

Timothy, I understand your point, but I think you’re misjudging the facts here.

The divorce petition was only filed a few weeks ago. The county court that heard the case wanted to punt – and they did. The state Supreme Court will hear the case and will almost certainly rule that that lower courts must do likewise.

The basis for my reasoning is this clause from the Wyoming’s Constitution:

20-1-111. Foreign marriages.
All marriage contracts which are valid by the laws of the country in which contracted are valid in this state.

The couple married in Canada. Wyoming has a history of recognizing the validity of marriages that would not have met the state’s requirements (e.g., age), so it seems awfully unlikely that they would so rule in this instance.

The state’s governor, Matt Meade, has clearly indicated his support for this couple’s access to the courts. No one other than the judge in Lusk (and the 13 state reps who asked the ADF to file an amicus brief against hearing the case) has signaled anything other than that this case will have to be heard in a Wyoming court.

While Wyoming may not have a clear precedent, there isn’t any reason to conclude – as of now – that the state’s executive isn’t upholding the law as written. He is. if he instructs the state’s attorney general (a Democrat, btw) to act in some other fashion, I’ll be the first to sound the alarm. Believe me.

That’s why the defeat of HB074 was so vitally important in Wyoming. The hate group that sponsored it (WyWatch, funded by FOTF and the FRC) did so with the intention of closing the gap in Wyoming law that state legal experts – including the previous attorney general – agreed would provide for recognition of same-sex marriages from out of state. WyWatch put forth this bill as an interim measure, in the assumption that they would place a constitutional amendment banning same-sex marriage on the ballot in Wyoming next year. The amendment process takes three years, a period during which any out of state same-sex marriage could be validated by Wyoming courts.

That’s what happened when the Lusk couple asked for a divorce.

It’s their worst nightmare: the amendment proposal failed, the interim law redefining marriage recognition failed and a same-sex couple bearing a valid Canadian marriage license has filed for divorce. It’s the religious right’s perfect storm.

We’ll keep you posted, but please keep an open, curious mind about this. Wyoming is an odd place, and we are fortunate that we have not had such an organized presence of right-wing evangelicals (though clearly, Colorado Springs isn’t that far away, as WyWatch clearly shows).

Remember what happened when Fred Phelps and crew protested Matthew Shepard’s funeral in Casper? The city got it’s first-ever openly gay mayor.

Let’s hope for the best here, and not jump to conclusions.

BTW, BTB’s attention on this would be greatly appreciated. I or others would be happy to provide more and/or more timely information.

Timothy Kincaid
March 3rd, 2011 | LINK

Embarcadero,

Again, thank you for the additional detail and insight.

I hope the court agrees with your reasoning and that this does resolve the matter in a way such that Wyoming begins to treat same-sex families who married outside the state as married in a manner similar to New York or Maryland.

And yes, we will follow this story. And please email us with any news if we don’t seem to be current (But be aware that a delay in reporting may be due to the fact that we all have full time jobs).

Stefano A
March 3rd, 2011 | LINK

WyWatch put forth this bill as an interim measure, in the assumption that they would place a constitutional amendment banning same-sex marriage on the ballot in Wyoming next year. The amendment process takes three years, a period during which any out of state same-sex marriage could be validated by Wyoming courts.

yep> That’s exactly why they were pressing so har to block court access with the amendment.

Stefano A
March 3rd, 2011 | LINK

Whoops. I meant to say that’s why they wanted the court access clause stripped from the bill.

cowboy
March 4th, 2011 | LINK

Kudos to Embarcadero.

I have considered, when the time comes, to make Wyoming a place I will consider to live when I retire; retire with someone of my choosing. I would want the same tax advantages as all the other retirees in Wyoming.

Embarcadero
June 6th, 2011 | LINK

It’s in: the Wyoming State Supreme Court did precisely what we expected: they accepted the divorce case, offering recognition of the litigants’ marriage:

“Paula Christiansen and Victoria Lee Christiansen are both residents of Wyoming. They were legally married in Canada in 2008. Paula Christiansen filed an action for divorce in Wyoming in February 2010. The district court determined it did not have subject-matter jurisdiction to entertain an action to dissolve a same-sex marriage. Accordingly, the district court dismissed the action. We reverse and remand for the reinstatement of the divorce proceeding.”

However, the decision is very narrow, and this is not recognition of same-sex couples without restriction. Continued litigation is fully expected.

Here’s a link to the decision:
http://www.courts.state.wy.us/Opinions/2011WY90.pdf

Embarcadero
June 6th, 2011 | LINK

I doubt anyone is reading this, but in case they do, here are the pertinent paragraphs from the decision (which even in its entirety is a simple, easy read):

“[¶6] The pivotal question is whether the fact that this is a same-sex couple strips the district court of the subject-matter jurisdiction it would otherwise enjoy to entertain a divorce proceeding. The district court found dispositive § 20-1-101, defining marriage as a contract between a man and a woman. Since a same-sex couple is incapable of entering into a marriage as defined by § 20-1-101, the district court reasoned there was no marriage to dissolve.

[¶7] In doing so, the district court did not give proper respect to Wyo. Stat. Ann. § 20- 1-111 (LexisNexis 2009), which provides that “[a]ll marriage contracts which are valid by the laws of the country in which contracted are valid in this state.” Obviously, the district court’s determination that, despite a valid Canadian marriage, no valid marriage exists under Wyoming law, runs afoul of this statute. The district court’s ruling thus creates a conflict between § 20-1-101 and § 20-1-111. We do not agree that such a conflict exists in the context of a divorce proceeding.

[¶8] When faced with statutes that appear to conflict, this Court first attempts “to harmonize them so as to give full effect to each.” Jessen v. Burry, 13 P.3d 1118, 1120 (Wyo. 2000). This Court must not give a statute a meaning that will nullify its operation if it is susceptible of another construction. Billis v. State, 800 P.2d 401, 413 (Wyo. 1990). In ascertaining the meaning of a given law, all statutes relating to the same subject or having the same general purpose must be considered and construed in harmony. Mtn. Cement Co. v. South of Laramie Water & Sewer Dist., 2011 WY 81, ¶ 13, __ P.3d __, __ (Wyo. 2011); Loberg v. Wyo. Workers’ Safety & Comp. Div., 2004 WY 48, ¶ 5, 88 P.3d 1045, 1048 (Wyo. 2004); Board of Cty. Comm’rs of Teton Cty. v. Crow, 2003 WY 40, ¶ 40, 65 P.3d 720, 733 (Wyo. 2003); Shumway v. Worthey, 2001 WY 130, ¶ 8, 37 P.3d 361, 365 (Wyo. 2001).

[¶9] We find § 20-1-101 and § 20-1-111, both relating to the creation of marriage, can coexist in harmony in the context of the instant divorce proceeding. Section 20-1-101 prevents a same-sex couple from entering into a marital contract in Wyoming. It does not speak to recognition of a same-sex marriage validly entered into in Canada. Section 20- 1-111, on the other hand, expressly allows for the recognition of a valid Canadian marriage in Wyoming. On their face, the two sections treat different situations and as such do not conflict.”

This is WyWatch Family Institute’s nightmare come true. I hesitate to express happiness on the occasion of a relationship’s demise, but I can’t hide my happiness in seeing WY’s Supreme Court recognize a same-sex marriage for the purposes of a divorce proceeding.

An expected but still good move for WY’s Supreme Court and a nice way to give WyWatch Family Institute the proverbial finger.

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