A Transgendered Marriage in Jersey.

So let’s say your married to your spouse for years, you’ve raised kids together, he or she decides to have gender re-assignment surgery and you choose to stay together.

If your state does not recognize same-sex marriages — and 49 states don’t — are you still married? The Brunners, a New Jersey couple, is trying to find out.

Massachusetts is the only state to have legalized same-sex marriage, and the Brunners are two women married to each other in New Jersey. As this state (along with Connecticut, Vermont and New Hampshire) confronts challenges over whether its civil unions fulfill the mandate of providing same-sex couples equal rights and benefits, the Brunners offer themselves as Exhibit A on how the nation’s dizzying patchwork of marriage laws, which include the domestic partnerships of California and other states, may be out of step with people’s lives.

The Brunners say they have no interest in obtaining a civil union — they consider it a downgrading of their relationship — but they do worry about their status.

What if the Internal Revenue Service questions their joint tax returns? What if they retire to North Carolina, a state that they say is less legally friendly to transsexuals and same-sex couples? What if they were taking their daughter Jessica to college in Pennsylvania, and were in a car wreck that left Denise unconscious — would the authorities accept Fran as her wife?

“Are they going to recognize that she can make the decision for me?” Denise asked. “We don’t know that, and that’s not the time I want to contest that in court.”



Gene "G.D." Demby is the founder and editor of PostBourgie. In his day job, he blogs and reports on race and ethnicity for NPR's Code Switch team.
  • Steve

    Well… I had a two hour office hours talk with my Con Law prof about this recently..

    If they argue its an issue of GENDER… they’ll get higher scrutiny if for some reason they are found to violate a law…

    but if they argue sexual orientation they’ll get lower level of protection.

    So really in terms of transgendered constitutional rights.. it all hinges on whether it will be seen in the court as an issue of gender or sexual orientation… gender receiving “intermediate scrutiny”(Is the discimrination substantially related to a government end” ..while sexual orientation receives something lower called “rational basis review” (Is the discrimination a legitimate means to a government end?)…

    umm I hope that wasnt too much legal ease

  • Steve,

    Not to be all Con Law professor about it, but let’s assume that we want protections for the Brunners marriage.

    What would be the arguments for and against the issue being one of gender or sexual orientation, respectively?

    (i know you’re mired in finals and all that noise and are probably tired of answering questions like this. i’m sorry, fam.)