Gay Unions Were Only Half the Battle By FRED A. BERNSTEIN
April 6, 2003

In February 2002, John Anthony and Russell Smith traveled from Texas to Vermont to make their relationship official. In a ceremony in Waterbury, the two men entered into a civil union, the legal status that, for a gay or lesbian couple, is the closest thing in this country to marriage.

But by the end of the year, Mr. Anthony and Mr. Smith had broken up. Their civil union, however, continues, and like a number of out-of-state couples who have parted ways, they've learned that because of a peculiarity in Vermont's landmark civil union law, there is little they can do about it.

The law, which took effect in July 2000, says that only a Vermont resident - someone who has lived there for at least a year - can dissolve a civil union. Mr. Anthony, 34, and Mr. Smith, 26, sought a divorce in Beaumont, Tex., where they live, and they were granted one on March 3 by a state District Court judge.

But the attorney general of Texas, Greg Abbott, asked the judge to withdraw it. "A divorce cannot be granted where a marriage never existed," Mr. Abbott declared. The judge agreed to rehear the case, but Mr. Smith, who said he couldn't afford to fight the attorney general, withdrew his divorce petition.

Mr. Anthony, who owns a photography business, and Mr. Smith, who works in employee relations for a large company he declined to name, are in a legal limbo that is "very stressful," Mr. Smith said. "I have my own life now."

He had helped Mr. Anthony finance his business, he said, taking on a lot of personal debt, and he had hoped a divorce would free him of possible future obligations. "Legally, it's an open question whether I'm liable now," he said.

Ronnie Cohee, his lawyer, said of the former partners: "One day one of them is going to win the lottery. Texas is a community-property state, and the other one is going to say, `Give me half.' "

"It's very unfair to let them get into something they can't get out of," she added.

Of the 5,400 gay and lesbian couples granted civil unions since Vermont became the only state to offer them, 85 percent have come from out of state (many states passed "defense of marriage" laws in reaction, defining marriage as a union between a man and a woman). So far, Vermont has dissolved 15 civil unions, according to state records. An unknown number of out-of-state couples have found themselves in the same predicament as the Texas couple, stuck in a civil union they would like to end - but cannot.

Last year a Connecticut case was dismissed after Glen Rosengarten, one of the founders of Food Emporium, died of lymphoma at 54. On New Year's Eve 2000, Mr. Rosengarten and Peter Downes entered into a civil union in Vermont. But when the relationship ended the next year, Mr. Rosengarten wanted the civil union to end, too.

According to his lawyer, Gary I. Cohen, Mr. Rosengarten knew he was dying and wanted to protect the inheritance of his three daughters against any claim by Mr. Downes. "He wanted this squared away before he died," Mr. Cohen, a divorce lawyer in Greenwich, Conn., said.

Mr. Cohen is married to Mr. Rosengarten's ex-wife, making him the stepfather of Mr. Rosengarten's three daughters. At first he wasn't sure whether to take the case. "I did it as much for the girls as for Glen," he said.

Since neither Mr. Rosengarten nor Mr. Downes, who lives in Manhattan, could meet Vermont's residency requirement, Mr. Cohen filed suit in Connecticut, arguing that his state's courts, which are empowered to resolve matters of family law, should declare the civil union void.

The Superior Court refused, stating that since Connecticut doesn't recognize civil unions, there was nothing for it to dissolve. Mr. Rosengarten appealed. The State Appellate Court upheld the lower court's decision. "The Vermont Legislature cannot legislate for the people of Connecticut," the court stated.

When Mr. Rosengarten died, the case became moot. Kenneth Bartschi, a Hartford lawyer who worked on Mr. Rosengarten's appeal, said: "I can't believe they were the only couple in Connecticut with a civil union that didn't work out. The issue will arise again."

When Vermont created its civil union law, legislators modeled it after the state's marriage statute, which has a one-year residency requirement for divorce. The restriction dates from an era when the state offered no-fault divorces and some neighboring states did not, and Vermont lawmakers didn't want the state to become a divorce mill.

"It's part of the divorce culture for us to say, `You thought enough of each other to get married; now we want to make sure you've thought enough before you get divorced,' " said William Dalton, deputy secretary of state for Vermont. "It might be nice if you could face the east and say three times, `I'm divorced, I'm divorced, I'm divorced,' but that's not how we do it."

Today, divorce is readily available to married couples in almost every state, and so Vermont's residency rule has few consequences for heterosexual couples. But no state legislature or court has extended the benefits and burdens of a civil union beyond Vermont. Gay and lesbian partners - and former partners - who have registered for civil unions exist in a legal gray area outside Vermont, experts say. Some observers foresee legal complications over joint property, child custody and health care benefits.

"It's quite a mess," said Frederick Hertz, a lawyer in Oakland, Calif., who is an expert in the law pertaining to unmarried couples. "The statute says that if they break up, all dissolution of property will be handled according to Vermont family law."

He said he had recently met with a couple who had obtained a civil union about drafting a co-ownership agreement for a house. "I said, `I hope you never break up, but if you choose to, it could get quite messy,' " Mr. Hertz said.

Evan Wolfson, executive director of Freedom to Marry, a New York-based group that advocates the legalization of marriages of gay and lesbian couples, said he believes that only one couple has successfully dissolved a civil union outside Vermont. Last December in Marion County, W.Va., a Family Court judge granted two women a dissolution of their civil union.

The women, wrote Judge David P. Born, are "citizens of West Virginia in need of a judicial remedy to dissolve a legal relationship created by the laws of another state." Citing the women's "irreconcilable differences," Judge Born put asunder what Vermont had joined.

That gives Mr. Wolfson and other gay-marriage advocates little pleasure. "It's important to recognize that the problem is not just with the civil union law, but rather with the discrimination that deprives gay people of the freedom to marry," he said.

In nearly every state, he added, "There are people who are so against gay relationships they won't let us get into committed relationships, and they won't let us get out of them either."

Opponents of gay marriage are equally opposed to gay divorce. "Our position is that Vermont civil unions should not be recognized by other states, in terms of the granting of benefits or in terms of the dissolving of these relationships," said Peter Sprigg, senior director of culture studies at the Family Research Council, an advocacy group in Washington. "Only opposite-sex relationships should be granted the benefits of marriage."

Meanwhile, some legal experts are cautioning couples outside Vermont to think twice about traveling to obtain a civil union. "Unless you are a resident of Vermont, or plan to be a resident of Vermont, it is unwise to register for a civil union," Mr. Hertz said. "You're entering into an uncertainty that can create enormous problems for yourself and for your heirs."

But love is often blind to legal circumstances. Barbara Bluto, a Bennington justice of the peace who performs civil unions, said, "You don't think about things that could happen down the road - not when you're in love."