The Straight Dope

Go Back   Straight Dope Message Board > Main > General Questions

Reply
 
Thread Tools Display Modes
  #1  
Old 02-19-2012, 06:56 AM
BeaMyra BeaMyra is offline
BANNED
 
Join Date: Oct 2011
Posts: 522
How Does Gay Marriage Work Interstate-wise?

OK it seems straightforward enough if you're gay and married in a state that recognizes it, as long as you stay in that state.

And it seems straightforward if you're married in a state that recognizes is and move to one that does not. You're married in one state but not another.

But what about between states that recognize it. For instance, if I get married in Massachusetts and then move to Iowa (both states have gay marriage), do the states automatically recognize the marriage, like they do with straight marriage?

Or does it involve specific laws. Like some states will recognize professional licenses (doctor or nurse etc) between states if they have specific agreements only.
Reply With Quote
Advertisements  
  #2  
Old 02-19-2012, 07:06 AM
grude grude is offline
Guest
 
Join Date: Dec 2011
Quote:
Originally Posted by BeaMyra View Post
OK it seems straightforward enough if you're gay and married in a state that recognizes it, as long as you stay in that state.

And it seems straightforward if you're married in a state that recognizes is and move to one that does not. You're married in one state but not another.

But what about between states that recognize it. For instance, if I get married in Massachusetts and then move to Iowa (both states have gay marriage), do the states automatically recognize the marriage, like they do with straight marriage?

Or does it involve specific laws. Like some states will recognize professional licenses (doctor or nurse etc) between states if they have specific agreements only.
http://legal-dictionary.thefreedicti...+Credit+Clause

Covers the USA, its in the constitution. There are also international agreements to honor marriages, but I assume there will be major problems with same sex marriage.(but then again its an issue mostly in immigration, and I imagine its rare for a same sex married couple to attempt to immigrate to countries that have a problem with it. But FTR the USA does no recognize same sex marriage for immigration purposes.)
Reply With Quote
  #3  
Old 02-19-2012, 07:24 AM
Patty O'Furniture Patty O'Furniture is offline
Guest
 
Join Date: May 1999
This situation seems ripe for the USSC. I wonder why nobody has filed suit against the federal government yet. Or are there some that are slowly working their way up there?


---
I am here: http://maps.google.com/maps?ll=13.891727,100.606384
__________________
Join Date: May 20, 1999
Location: Bangkok, Thailand
Posts: 8,756
Reply With Quote
  #4  
Old 02-19-2012, 08:06 AM
ctnguy ctnguy is offline
Guest
 
Join Date: Sep 2008
As I understand it, a jurisdiction will usually recognise any valid marriage celebrated in another jurisdiction unless that marriage is contrary to the public policy of the first jurisdiction. This applies to interstate and international recognition of marriages. Thus, jurisdictions with legal SSM automatically recognise SSM from other jurisdictions without specifically having to say so in legislation. Jurisdictions where SSM is explicitly banned don't, because the ban makes it clear that they are contrary to public policy. The more interesting case is jurisdictions which don't allow SSMs to be celebrated but haven't explicitly defined marriage as being between a man and a women. In New Mexico, which is such a case, the Attorney-General has opined that a valid same-sex marriage from another state would be recognised.

The Full Faith & Credit Clause requires states to recognise the public acts and public records of other states; but the Defence of Marriage Act says that states aren't required to recognise other states' same-sex marriages; this may or may not be constitutional. There are a number of challenges to DOMA working their way towards the Supreme Court, but they seem to mostly be about the other provision that forbids federal recognition of SSMs. There doesn't seem to be much precedent on FF&C from other cases where states differ on the validity of marriage - interracial marriage before Loving, and cousin marriage.

Where the situation gets really hairy is when you start to look at civil unions, domestic partnerships and all the other types of other-than-marriage relationship recognition. States with civil unions might only recognise other states' civil unions but not their marriages, or they might recognise marriages but only give them the rights of civil unions in that state, or they might not recognise them at all. States with SSM might recognise other states' marriages but not civil unions, or they might recognise both. It's a giant complicated mess.
Reply With Quote
  #5  
Old 02-19-2012, 08:55 AM
KneeSid KneeSid is offline
BANNED
 
Join Date: Dec 2011
Location: Sydney
Posts: 140
I don't want to derail this, but I thought that marriages weren't historically covered by the full faith and credit clause, because they are essentially licensed.

For instance, driving and being a doctor or nurse (from the OP) have licensing requirements. So they're not covered by the full faith and credit clause.

I know in the old days, some states would not honor marriages of mixed races for instance. Divorce was also a nightmare in the old days as some states would not recognize divorces in other states. So you'd be married in one state and divorced in another.

But then again, people didn't travel much way back, so it probably wasn't as big of an issue.
Reply With Quote
  #6  
Old 02-19-2012, 10:07 AM
Flyer Flyer is offline
Guest
 
Join Date: Feb 2012
I don't know about professions, but driving is in fact covered by the Full Faith and Credit clause. That's the whole reason why you can drive into another state on vacation and avoid getting arrested for not having a valid drivers license.

And all forms of traditional marriage are covered as well. About half the states allow first-cousin marriage and half don't, but such a marriage is valid anywhere as long as it was performed in a state that allows it.

This is a bit of a hijack, but as far as marriage being a licensed activity is concerned, you might want to read up on common-law marriage--most people don't understand what that actually means.
Reply With Quote
  #7  
Old 02-19-2012, 10:40 AM
Nava Nava is offline
Guest
 
Join Date: Nov 2004
There's lots of countries where you don't need a marriage "license", and whose marriages are recognized in the US; that line of reasoning doesn't seem to hold much water.
Reply With Quote
  #8  
Old 02-19-2012, 12:07 PM
ctnguy ctnguy is offline
Guest
 
Join Date: Sep 2008
Surely what is "licensed" by a marriage license is the carrying out of the wedding ceremony, not the entire ensuing marriage? The licensing analogy would only imply that one state would not have to allow a marriage ceremony to be celebrated in that state using a marriage license from another state.
Reply With Quote
  #9  
Old 02-19-2012, 04:57 PM
Chronos Chronos is offline
Charter Member
 
Join Date: Jan 2000
Location: The Land of Cleves
Posts: 55,152
Quote:
I don't want to derail this, but I thought that marriages weren't historically covered by the full faith and credit clause, because they are essentially licensed.
Up until gay marriage became an issue, marriage was the textbook example for the Full Faith and Credit clause. And there is no "public policy" exception given to that clause, despite what some claim.
__________________
Time travels in divers paces with divers persons.
--As You Like It, III:ii:328
Reply With Quote
  #10  
Old 02-19-2012, 05:30 PM
KneeSid KneeSid is offline
BANNED
 
Join Date: Dec 2011
Location: Sydney
Posts: 140
From the NY Times

Quote:
'No state has ever been required by the full faith and credit clause to recognize any marriage they didn't want to,'' said Andrew Koppelman, a law professor at Northwestern University and the author of ''The Gay Rights Question in Contemporary American Law.''

Indeed, until the Supreme Court struck down all laws banning interracial marriage in 1967, the nation lived with a patchwork of laws on the question. Those states that found interracial marriages offensive to their public policies were not required to recognize such marriages performed elsewhere, though sometimes they did, but as a matter of choice rather than constitutional compulsion.What is notable about the 1967 decision for the gay marriage debate, then, is that it did not mention the full faith and credit clause. Although the case involved a Virginia couple prosecuted for violating that state's ban on interracial marriage by visiting the District of Columbia, which allowed such marriages, the Supreme Court did not suggest that Virginia was obligated to recognize the marriage
Full article

Clearly before the 1967 decision, many states did not recognize mixed marriages. So there is precedent that the full faith and credit did not apply to marriage.

It's a licensed thing. You can drive in other states but only temporarily. You have to get that states license if you move.
Reply With Quote
  #11  
Old 02-19-2012, 06:42 PM
ctnguy ctnguy is offline
Guest
 
Join Date: Sep 2008
I have read that NY Times article, but it's not clear if the Supreme Court has ever conclusively ruled whether there is a public policy exception to FF&C with respect to marriages? Did such a case on interracial marriage ever reach the SC before Loving?

If there is such an exception, then obviously states with mini-DOMAs don't have to recognise other states' SSMs. If there isn't a public policy exception, then I don't see how the federal DOMA can be constitutional.

In any case, I think the "licensing" argument is off the point. To continue the comparison with drivers' licenses, you don't have to convert or relicense your marriage if you move from one state to another.
Reply With Quote
  #12  
Old 02-19-2012, 07:08 PM
Senegoid Senegoid is offline
Member
 
Join Date: Sep 2011
Location: Sunny California
Posts: 7,663
Quote:
Originally Posted by ctnguy View Post

<snip>

Where the situation gets really hairy is when you start to look at civil unions, domestic partnerships and all the other types of other-than-marriage relationship recognition. States with civil unions might only recognise other states' civil unions but not their marriages, or they might recognise marriages but only give them the rights of civil unions in that state, or they might not recognise them at all. States with SSM might recognise other states' marriages but not civil unions, or they might recognise both. It's a giant complicated mess.
And where it really starts to get hairy, in the current chaotic state of the SSM laws, is when gays, legally married, then move to another state less accommodating to SSM, and then try to get a divorce.

Texas, for example, does not recognize SSM (or maybe does but only reluctantly), and the AG argues that Texas will not allow same-sex divorce either. New York Times article by John Schwartz, pub. July 2, 2011.
Reply With Quote
  #13  
Old 02-20-2012, 11:38 AM
lawbuff lawbuff is offline
Guest
 
Join Date: Jan 2012
Quote:
Originally Posted by Flyer View Post
I don't know about professions, but driving is in fact covered by the Full Faith and Credit clause. That's the whole reason why you can drive into another state on vacation and avoid getting arrested for not having a valid drivers license.
I could not find an exact citation for that, just statments to that effect. The Privileges and Immunities Clause has also been cited to permit it, with no exact case law I could find though.

My state has a specific provision for it, as most states I am sure do. Clarification by statute is the best way to make sure officer's do not rely on a loose knowledge of FFC to cite/arrest a person.


4507.04 Nonresident exemption.

Nonresidents, permitted to drive upon the highways of their own states, may operate any motor vehicle upon any highway in this state without examination or license under sections 4507.01 to 4507.39, inclusive, of the Revised Code, upon condition that such nonresidents may be required at any time or place to prove lawful possession, or their right to operate, such motor vehicle, and to establish proper identity.

Additionally, the Driver's License Compact between states, while not specifically permitting it by words, addresses the member states exchange of info for violations, etc.

While "interstate travel" is generally recognized as a 1st AM right, driving interstate has never been squarely ruled on. If anyone has a citation for that, by the Supreme court I mean, I would enjoy reading it.

Last edited by lawbuff; 02-20-2012 at 11:39 AM..
Reply With Quote
  #14  
Old 02-20-2012, 11:42 AM
lawbuff lawbuff is offline
Guest
 
Join Date: Jan 2012
Quote:
Originally Posted by Patty O'Furniture View Post
This situation seems ripe for the USSC. I wonder why nobody has filed suit against the federal government yet. Or are there some that are slowly working their way up there?

A Plaintiff needs STANDING first. Any person simply can't sue, as in a Taxpayer's suit, for example.

Last edited by lawbuff; 02-20-2012 at 11:42 AM..
Reply With Quote
  #15  
Old 02-20-2012, 11:46 AM
lawbuff lawbuff is offline
Guest
 
Join Date: Jan 2012
Quote:
Originally Posted by ctnguy View Post
I have read that NY Times article, but it's not clear if the Supreme Court has ever conclusively ruled whether there is a public policy exception to FF&C with respect to marriages? Did such a case on interracial marriage ever reach the SC before Loving?

If there is such an exception, then obviously states with mini-DOMAs don't have to recognise other states' SSMs. If there isn't a public policy exception, then I don't see how the federal DOMA can be constitutional.
No, the US SC has never ruled on the FFC being applicable to SSM, although in other FFC cases, there is persuasive authority that they need not be recognized. From past research I have in my head a case, Nevada v. Hall, which outlines a State is not required to honor the Public Policy of another state if it violates thier own.
Reply With Quote
  #16  
Old 02-28-2012, 01:17 AM
Patty O'Furniture Patty O'Furniture is offline
Guest
 
Join Date: May 1999
Quote:
Originally Posted by lawbuff View Post
A Plaintiff needs STANDING first. Any person simply can't sue, as in a Taxpayer's suit, for example.
Wouldn't that happen as soon as some foreign national tried to get residency based on his legal marriage to a SS partner?


---
I am here: http://maps.google.com/maps?ll=13.896620,100.608383
__________________
Join Date: May 20, 1999
Location: Bangkok, Thailand
Posts: 8,756
Reply With Quote
  #17  
Old 02-28-2012, 09:25 PM
Cliffy Cliffy is offline
Guest
 
Join Date: Sep 2001
Basically, the Full Faith and Credit Clause had typically been used (post-Loving, anyway) to require all marriages compacted in one state to be recognized in every other state. There has been a (perhaps ill-defined) public policy exception to the Clause (as noted, the proof in the situation on the ground pre-Loving), so it's unlikely that a straights-only state would have had to recognize a SS marriage performed elsewhere. But to make sure, DOMA explicitly gave states the right to refuse recognition of an out of state SSM. The FF&C Clause has a sub-clause giving Congress the power to determine its applicability -- one of the few parts of the Constitution that makes itself subservient to the institutions it invests, but this suggests that DOMA is not therefore unconstitutional as a violation of FF&C.

As for the OP's recognition question outside the legalities, FF&C would seem to compel any state that recognizes SS marriage to recognize **any** U.S. same-sex marriage, even if performed in a different state. The reason Texas or Virginia can refuse recognition is because those states can claim that same-sex marriage is anathema to community values; clearly a state that does allow gay marriage doesn't have that argument w/r/t any particular out of state marriage.

--Cliffy
Reply With Quote
  #18  
Old 02-28-2012, 10:19 PM
Chronos Chronos is offline
Charter Member
 
Join Date: Jan 2000
Location: The Land of Cleves
Posts: 55,152
Just for reference:

Quote:
Article IV - The States

Section 1 - Each State to Honor all others

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Congress can say how the acts, records, and judicial proceedings of one state can apply to the others, but I see nothing in there that gives Congress the power to say that an act, record, or proceeding doesn't apply at all.
Reply With Quote
  #19  
Old 02-29-2012, 03:48 AM
Polycarp Polycarp is offline
Guest
 
Join Date: Aug 1999
Location: A better place to be
Posts: 26,718
Quote:
Originally Posted by Chronos View Post
Just for reference:

Congress can say how the acts, records, and judicial proceedings of one state can apply to the others, but I see nothing in there that gives Congress the power to say that an act, record, or proceeding doesn't apply at all.
I was about to make the exact same point after reading Cliffy's post when I came to Chronos's. While I am sure Cliffy is accurately reporting the jurisprudence connected with FF&C/DOMA to date, the textual reading of Article IV, as opposed to any penumbras and emanations the Conservative jurisconsults seem to be reading into it, seems to me to be placing an affirmative duty on the states to extend FF&C, and provides for Congress only the role of defining how the official acts of one state may be proven to another state and its institutions.
Reply With Quote
  #20  
Old 02-29-2012, 04:19 AM
BigT BigT is offline
Guest
 
Join Date: Aug 2008
I don't see how that's a practical difference. All Congress would have to do is say that doing X fulfilled FFC, and X could be something other than actual recognition. Like, for example, treating otherwise married men as domestic partners in a state that doesn't have SSM.
Reply With Quote
  #21  
Old 02-29-2012, 12:20 PM
lawbuff lawbuff is offline
Guest
 
Join Date: Jan 2012
Quote:
Originally Posted by BigT View Post
I don't see how that's a practical difference. All Congress would have to do is say that doing X fulfilled FFC, and X could be something other than actual recognition. Like, for example, treating otherwise married men as domestic partners in a state that doesn't have SSM.

I don't see why as it comes under the heading already of:


 1738. State and Territorial statutes and judicial proceedings; full faith and credit

To me, you can't be much more clearer, the DOMA subchapter concerns FFC, as above, so the language of DOMA itself is self expanatory.
Reply With Quote
Reply



Bookmarks

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is Off
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 07:34 PM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2014, vBulletin Solutions, Inc.

Send questions for Cecil Adams to: cecil@chicagoreader.com

Send comments about this website to: webmaster@straightdope.com

Terms of Use / Privacy Policy

Advertise on the Straight Dope!
(Your direct line to thousands of the smartest, hippest people on the planet, plus a few total dipsticks.)

Publishers - interested in subscribing to the Straight Dope?
Write to: sdsubscriptions@chicagoreader.com.

Copyright 2013 Sun-Times Media, LLC.